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e-CFR Data is current as of October 1, 2007
Title 47: Telecommunication
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PART 1—PRACTICE AND PROCEDURE
___________________________________
Section Contents
Subpart A—General Rules of Practice and Procedure
General
§ 1.1 Proceedings before the Commission.
§ 1.2 Declaratory rulings.
§ 1.3 Suspension, amendment, or waiver of rules.
§ 1.4 Computation of time.
§ 1.5 Mailing address furnished by licensee.
§ 1.6 Availability of station logs and records for Commission inspection.
§ 1.7 Documents are filed upon receipt.
§ 1.8 Withdrawal of papers.
§ 1.10 Transcript of testimony; copies of documents submitted.
§ 1.12 Notice to attorneys of Commission documents.
§ 1.13 Filing of petitions for review and notices of appeals of Commission
orders.
§ 1.14 Citation of Commission documents.
§ 1.16 Unsworn declarations under penalty of perjury in lieu of
affidavits.
§ 1.17 Truthful and accurate statements to the Commission.
§ 1.18 Administrative Dispute Resolution.
§ 1.19 Use of metric units required.
Parties, Practitioners, and Witnesses
§ 1.21 Parties.
§ 1.22 Authority for representation.
§ 1.23 Persons who may be admitted to practice.
§ 1.24 Censure, suspension, or disbarment of attorneys.
§ 1.25 [Reserved]
§ 1.26 Appearances.
§ 1.27 Witnesses; right to counsel.
§§ 1.28-1.29 [Reserved]
Pleadings, Briefs, and Other Papers
§ 1.41 Informal requests for Commission action.
§ 1.42 Applications, reports, complaints; cross-reference.
§ 1.43 Requests for stay; cross-reference.
§ 1.44 Separate pleadings for different requests.
§ 1.45 Pleadings; filing periods.
§ 1.46 Motions for extension of time.
§ 1.47 Service of documents and proof of service.
§ 1.48 Length of pleadings.
§ 1.49 Specifications as to pleadings and documents.
§ 1.50 Specifications as to briefs.
§ 1.51 Number of copies of pleadings, briefs and other papers.
§ 1.52 Subscription and verification.
§ 1.53 Separate pleadings for petitions for forbearance.
General Application Procedures
§ 1.61 Procedures for handling applications requiring special aeronautical
study.
§ 1.62 Operation pending action on renewal application.
§ 1.65 Substantial and significant changes in information furnished by
applicants to the Commission.
§ 1.68 Action on application for license to cover construction permit.
§ 1.77 Detailed application procedures; cross references.
Miscellaneous Proceedings
§ 1.80 Forfeiture proceedings.
§ 1.83 Applications for radio operator licenses.
§ 1.85 Suspension of operator licenses.
§ 1.87 Modification of license or construction permit on motion of the
Commission.
§ 1.88 Predesignation pleading procedure.
§ 1.89 Notice of violations.
§ 1.91 Revocation and/or cease and desist proceedings; hearings.
§ 1.92 Revocation and/or cease and desist proceedings; after waiver of
hearing.
§ 1.93 Consent orders.
§ 1.94 Consent order procedures.
§ 1.95 Violation of consent orders.
Reconsideration and Review of Actions Taken by the Commission and Pursuant
to Delegated Authority; Effective Dates and Finality Dates of Actions
§ 1.101 General provisions.
§ 1.102 Effective dates of actions taken pursuant to delegated authority.
§ 1.103 Effective dates of Commission actions; finality of Commission
actions.
§ 1.104 Preserving the right of review; deferred consideration of
application for review.
§ 1.106 Petitions for reconsideration.
§ 1.108 Reconsideration on Commission's own motion.
§ 1.110 Partial grants; rejection and designation for hearing.
§ 1.113 Action modified or set aside by person, panel, or board.
§ 1.115 Application for review of action taken pursuant to delegated
authority.
§ 1.117 Review on motion of the Commission.
§ 1.120 Protests of grants without hearing.
Subpart B—Hearing Proceedings
General
§ 1.201 Scope.
§ 1.202 Official reporter; transcript.
§ 1.203 The record.
§ 1.204 Pleadings; definition.
§ 1.205 Continuances and extensions.
§ 1.207 Interlocutory matters, reconsideration and review; cross
references.
§ 1.209 Identification of responsible officer in caption to pleading.
§ 1.211 Service.
Participants and Issues
§ 1.221 Notice of hearing; appearances.
§ 1.223 Petitions to intervene.
§ 1.224 Motion to proceed in forma pauperis.
§ 1.225 Participation by non-parties; consideration of communications.
§ 1.227 Consolidations.
§ 1.229 Motions to enlarge, change, or delete issues.
Presiding Officer
§ 1.241 Designation of presiding officer.
§ 1.243 Authority of presiding officer.
§ 1.244 Designation of a settlement judge.
§ 1.245 Disqualification of presiding officer.
Prehearing Procedures
§ 1.246 Admission of facts and genuineness of documents.
§ 1.248 Prehearing conferences; hearing conferences.
§ 1.249 Prehearing statement.
Hearing and Intermediate Decision
§ 1.250 Discovery and preservation of evidence; cross-reference.
§ 1.251 Summary decision.
§ 1.253 Time and place of hearing.
§ 1.254 Nature of the hearing; burden of proof.
§ 1.255 Order of procedure.
§ 1.258 Closing of the hearing.
§ 1.260 Certification of transcript.
§ 1.261 Corrections to transcript.
§ 1.263 Proposed findings and conclusions.
§ 1.264 Contents of findings of fact and conclusions.
§ 1.267 Initial and recommended decisions.
Review Proceedings
§ 1.271 Delegation of review function.
§ 1.273 Waiver of initial or recommended decision.
§ 1.274 Certification of the record to the Commission for initial or final
decision.
§ 1.276 Appeal and review of initial decision.
§ 1.277 Exceptions; oral arguments.
§ 1.279 Limitation of matters to be reviewed.
§ 1.282 Final decision of the Commission.
Interlocutory Actions in Hearing Proceedings
§ 1.291 General provisions.
§ 1.294 Oppositions and replies.
§ 1.296 Service.
§ 1.297 Oral argument.
§ 1.298 Rulings; time for action.
Appeal and Reconsideration of Presiding Officer's Ruling
§ 1.301 Appeal from presiding officer's interlocutory ruling; effective
date of ruling.
§ 1.302 Appeal from presiding officer's final ruling; effective date of
ruling.
The Discovery and Preservation of Evidence
§ 1.311 General.
§ 1.313 Protective orders.
§ 1.315 Depositions upon oral examination—notice and preliminary
procedure.
§ 1.316 Depositions upon written interrogatories—notice and preliminary
procedure.
§ 1.318 The taking of depositions.
§ 1.319 Objections to the taking of depositions.
§ 1.321 Use of depositions at the hearing.
§ 1.323 Interrogatories to parties.
§ 1.325 Discovery and production of documents and things for inspection,
copying, or photographing.
Subpenas
§ 1.331 Who may sign and issue.
§ 1.333 Requests for issuance of subpena.
§ 1.334 Motions to quash.
§ 1.335 Rulings.
§ 1.336 Service of subpenas.
§ 1.337 Return of service.
§ 1.338 Subpena forms.
§ 1.339 Witness fees.
§ 1.340 Attendance of witness; disobedience.
Evidence
§ 1.351 Rules of evidence.
§ 1.352 Cumulative evidence.
§ 1.353 Further evidence during hearing.
§ 1.354 Documents containing matter not material.
§ 1.355 Documents in foreign language.
§ 1.356 Copies of exhibits.
§ 1.357 Mechanical reproductions as evidence.
§ 1.358 Tariffs as evidence.
§ 1.359 Proof of official record; authentication of copy.
§ 1.360 Proof of lack of record.
§ 1.361 Other proof of official record.
§ 1.362 Production of statements.
§ 1.363 Introduction of statistical data.
§ 1.364 Testimony by speakerphone.
Subpart C—Rulemaking Proceedings
General
§ 1.399 Scope.
§ 1.400 Definitions.
Petitions and Related Pleadings
§ 1.401 Petitions for rulemaking.
§ 1.403 Notice and availability.
§ 1.405 Responses to petitions; replies.
§ 1.407 Action on petitions.
Rulemaking Proceedings
§ 1.411 Commencement of rulemaking proceedings.
§ 1.412 Notice of proposed rulemaking.
§ 1.413 Content of notice.
§ 1.415 Comments and replies.
§ 1.419 Form of comments and replies; number of copies.
§ 1.420 Additional procedures in proceedings for amendment of the FM or TV
Tables of Allotments, or for amendment of certain FM assignments.
§ 1.421 Further notice of rulemaking.
§ 1.423 Oral argument and other proceedings.
§ 1.425 Commission action.
§ 1.427 Effective date of rules.
§ 1.429 Petition for reconsideration.
Inquiries
§ 1.430 Proceedings on a notice of inquiry.
Subpart D—Broadcast Applications and Proceedings
§ 1.502 Emergency Broadcast Authorizations.
General Filing Requirements
§ 1.511 Applications required.
§ 1.512 Where to file; number of copies.
§ 1.513 Who may sign applications.
§ 1.514 Content of applications.
§ 1.516 Specification of facilities.
§ 1.517 Contingent applications.
§ 1.518 Inconsistent or conflicting applications.
§ 1.519 Repetitious applications.
§ 1.520 Multiple applications.
§ 1.522 Amendment of applications.
§ 1.525 Agreements between parties for amendment or dismissal of, or
failure to prosecute, broadcast applications.
§ 1.526 Records to be maintained locally for public inspection by
commercial applicants, permittees and licensees.
§ 1.527 Records to be maintained locally for public inspection by
noncommercial educational applicants, permittees and licensees.
§ 1.531 Formal and informal applications.
§ 1.533 Application forms for authority to construct a new station or make
changes in an existing station.
§ 1.534 Application for extension of construction permit or for
construction permit to replace expired construction permit.
§ 1.536 Application for license to cover construction permit.
§ 1.538 Application for modification of license.
§ 1.539 Application for renewal of license.
§ 1.540 Application for voluntary assignment or transfer of control.
§ 1.541 Application for involuntary assignment of license or transfer of
control.
§ 1.542 Application for temporary authorization.
§ 1.543 Application for renewal or modification of special service
authorization.
§ 1.544 Application for broadcast station to conduct field strength
measurements and for experimental operation.
§ 1.545 Application for permit to deliver programs to foreign countries.
§ 1.546 Application to determine operating power by direct measurement of
antenna power.
§ 1.549 Requests for extension of authority to operate without required
monitors, indicating instruments, and EBS Attention Signal devices.
§ 1.550 Requests for new or modified call sign assignments.
§ 1.561 Staff consideration of applications which receive action by the
Commission.
§ 1.562 Staff consideration of applications which do not require action by
the Commission.
§ 1.564 Acceptance of applications.
§ 1.566 Defective applications.
§ 1.568 Dismissal of applications.
§ 1.570 AM broadcast station applications involving other North American
countries.
§ 1.571 Processing AM broadcast station applications.
§ 1.572 Processing TV broadcast and translator station applications.
§ 1.573 Processing FM broadcast and translator station applications.
§ 1.574 Processing of international broadcast station applications.
§ 1.578 Amendments to applications for renewal, assignment or transfer of
control.
§ 1.580 Local public notice of filing of broadcast applications.
§ 1.584 Petitions to deny.
§ 1.587 Procedure for filing informal applications.
§ 1.591 Grants without hearing.
§ 1.592 Conditional grant.
§ 1.593 Designation for hearing.
§ 1.594 Local public notice of designation for hearing.
§ 1.597 Procedures on transfer and assignment applications.
§ 1.598 Period of construction.
§ 1.599 Forfeiture of construction permit.
§ 1.601 Simultaneous modification and renewal of license.
§ 1.603 Special waiver procedure relative to applications.
§ 1.605 Retention of applications in hearing status after designation for
hearing.
§ 1.612 Annual employment report.
§ 1.613 Filing of contracts.
§ 1.615 Ownership reports.
Subpart E—Complaints, Applications, Tariffs, and Reports Involving Common
Carriers
General
§ 1.701 Show cause orders.
§ 1.703 Appearances.
Complaints
§ 1.711 Formal or informal complaints.
Informal Complaints
§ 1.716 Form.
§ 1.717 Procedure.
§ 1.718 Unsatisfied informal complaints; formal complaints relating back
to the filing dates of informal complaints.
§ 1.719 Informal complaints filed pursuant to section 258.
Formal Complaints
§ 1.720 General pleading requirements.
§ 1.721 Format and content of complaints.
§ 1.722 Damages.
§ 1.723 Joinder of complainants and causes of action.
§ 1.724 Answers.
§ 1.725 Cross-complaints and counterclaims.
§ 1.726 Replies.
§ 1.727 Motions.
§ 1.728 Formal complaints not stating a cause of action; defective
pleadings.
§ 1.729 Discovery.
§ 1.730 The Enforcement Bureau's Accelerated Docket.
§ 1.731 Confidentiality of information produced or exchanged by the
parties.
§ 1.732 Other required written submissions.
§ 1.733 Status conference.
§ 1.734 Specifications as to pleadings, briefs, and other documents;
subscription.
§ 1.735 Copies; service; separate filings against multiple defendants.
§ 1.736 Complaints filed pursuant to 47 U.S.C. 271(d)(6)(B).
Applications
§ 1.741 Scope.
§ 1.742 Place of filing, fees, and number of copies.
§ 1.743 Who may sign applications.
§ 1.744 Amendments.
§ 1.745 Additional statements.
§ 1.746 Defective applications.
§ 1.747 Inconsistent or conflicting applications.
§ 1.748 Dismissal of applications.
§ 1.749 Action on application under delegated authority.
Specific Types of Applications Under Title II of Communications Act
§ 1.761 Cross reference.
§ 1.763 Construction, extension, acquisition or operation of lines.
§ 1.764 Discontinuance, reduction, or impairment of service.
§ 1.767 Cable landing licenses.
§ 1.768 Notification by and prior approval for submarine cable landing
licensees that are or propose to become affiliated with a foreign carrier.
Tariffs
§ 1.771 Filing.
§ 1.772 Application for special tariff permission.
§ 1.773 Petitions for suspension or rejection of new tariff filings.
§ 1.774 Pricing flexibility.
Contracts, Reports, and Requests Required to be Filed by Carriers
§ 1.781 Requests for extension of filing time.
Contracts
§ 1.783 Filing.
Financial and Accounting Reports and Requests
§ 1.785 Annual financial reports.
§ 1.786 [Reserved]
§ 1.787 Reports of proposed changes in depreciation rates.
§ 1.788 Reports regarding pensions and benefits.
§ 1.789 Reports regarding division of international telegraph
communication charges.
§ 1.790 Reports relating to traffic by international carriers.
§ 1.791 Reports and requests to be filed under part 32 of this chapter.
§ 1.795 Reports regarding interstate rates of return.
Services and Facilities Reports
§ 1.802 Reports relating to continuing authority to supplement facilities
or to provide temporary or emergency service.
§ 1.803 Reports relating to reduction in temporary experimental service.
§ 1.805 Reports relating to service by carriers engaged in public radio
service operations.
Miscellaneous Reports
§ 1.811 Reports regarding amendments to charters, by-laws and partnership
agreements of carriers engaged in domestic public radio services.
§ 1.814 Reports regarding free service rendered the Government for
national defense.
§ 1.815 Reports of annual employment.
Grants by Random Selection
§ 1.821 Scope.
§ 1.822 General selection procedures.
§ 1.824 Random selection procedures for Multichannel Multipoint
Distribution Service and Multipoint Distribution Service H-Channel stations.
Subpart F—Wireless Radio Services Applications and Proceedings
Scope and Authority
§ 1.901 Basis and purpose.
§ 1.902 Scope.
§ 1.903 Authorization required.
§ 1.907 Definitions.
Application Requirements and Procedures
§ 1.911 Station files.
§ 1.913 Application and notification forms; electronic and manual filing.
§ 1.915 General application requirements.
§ 1.917 Who may sign applications.
§ 1.919 Ownership information.
§ 1.923 Content of applications.
§ 1.924 Quiet zones.
§ 1.925 Waivers.
§ 1.926 Application processing; initial procedures.
§ 1.927 Amendment of applications.
§ 1.928 Frequency coordination, Canada.
§ 1.929 Classification of filings as major or minor.
§ 1.931 Application for special temporary authority.
§ 1.933 Public notices.
§ 1.934 Defective applications and dismissal.
§ 1.935 Agreements to dismiss applications, amendments or pleadings.
§ 1.937 Repetitious or conflicting applications.
§ 1.939 Petitions to deny.
§ 1.945 License grants.
§ 1.946 Construction and coverage requirements.
§ 1.947 Modification of licenses.
§ 1.948 Assignment of authorization or transfer of control, notification
of consummation.
§ 1.949 Application for renewal of license.
§ 1.951 Duty to respond to official communications.
§ 1.955 Termination of authorizations.
§ 1.956 Settlement conferences.
§ 1.957 Procedure with respect to amateur radio operator license.
§ 1.958 Distance computation.
§ 1.959 Computation of average terrain elevation.
Reports To Be Filed With the Commission
§ 1.981 Reports, annual and semiannual.
Subpart G—Schedule of Statutory Charges and Procedures for Payment
§ 1.1101 Authority.
§ 1.1102 Schedule of charges for applications and other filings in the
wireless telecommunications services.
§ 1.1103 Schedule of charges for equipment approval, experimental radio
services, and international telecommunications settlement services.
§ 1.1104 Schedule of charges for applications and other filings for media
services.
§ 1.1105 Schedule of charges for applications and other filings for the
wireline competition services.
§ 1.1106 Schedule of charges for applications and other filings for the
enforcement services.
§ 1.1107 Schedule of charges for applications and other filings for the
international services.
§ 1.1108 Attachment of charges.
§ 1.1109 Payment of charges.
§ 1.1110 Form of payment.
§ 1.1111 Filing locations.
§ 1.1112 Conditionality of Commission or staff authorizations.
§ 1.1113 Return or refund of charges.
§ 1.1114 General exemptions to charges.
§ 1.1115 Adjustments to charges.
§ 1.1116 Penalty for late or insufficient payments.
§ 1.1117 Petitions and applications for review.
§ 1.1118 Error claims.
§ 1.1119 Billing procedures.
§ 1.1151 Authority to prescribe and collect regulatory fees.
§ 1.1152 Schedule of annual regulatory fees and filing locations for
wireless radio services.
§ 1.1153 Schedule of annual regulatory fees and filing locations for mass
media services.
§ 1.1154 Schedule of annual regulatory charges and filing locations for
common carrier services.
§ 1.1155 Schedule of regulatory fees and filing locations for cable
television services.
§ 1.1156 Schedule of regulatory fees and filing locations for
international services.
§ 1.1157 Payment of charges for regulatory fees.
§ 1.1158 Form of payment for regulatory fees.
§ 1.1159 Filing locations and receipts for regulatory fees.
§ 1.1160 Refunds of regulatory fees.
§ 1.1161 Conditional license grants and delegated authorizations.
§ 1.1162 General exemptions from regulatory fees.
§ 1.1163 Adjustments to regulatory fees.
§ 1.1164 Penalties for late or insufficient regulatory fee payments.
§ 1.1165 Payment by cashier's check for regulatory fees.
§ 1.1166 Waivers, reductions and deferrals of regulatory fees.
§ 1.1167 Error claims related to regulatory fees.
§ 1.1181 Authority to prescribe and collect fees for competitive
bidding-related services and products.
§ 1.1182 Schedule of fees for products and services provided by the
Commission in connection with competitive bidding procedures.
Subpart H—Ex Parte Communications
General
§ 1.1200 Introduction.
§ 1.1202 Definitions.
Sunshine Period Prohibition
§ 1.1203 Sunshine period prohibition.
General Exemptions
§ 1.1204 Exempt ex parte presentations and proceedings.
Non-Restricted Proceedings
§ 1.1206 Permit-but-disclose proceedings.
Restricted Proceedings
§ 1.1208 Restricted proceedings.
Prohibition on Solicitation of Presentations
§ 1.1210 Prohibition on solicitation of presentations.
Procedures for Handling of Prohibited Ex Parte Presentations
§ 1.1212 Procedures for handling of prohibited ex parte presentations.
§ 1.1214 Disclosure of information concerning violations of this subpart.
Sanctions
§ 1.1216 Sanctions.
Subpart I—Procedures Implementing the National Environmental Policy Act of
1969
§ 1.1301 Basis and purpose.
§ 1.1302 Cross-reference; Regulations of the Council on Environmental
Quality.
§ 1.1303 Scope.
§ 1.1304 Information and assistance.
§ 1.1305 Actions which normally will have a significant impact upon the
environment, for which Environmental Impact Statements must be prepared.
§ 1.1306 Actions which are categorically excluded from environmental
processing.
§ 1.1307 Actions that may have a significant environmental effect, for
which Environmental Assessments (EAs) must be prepared.
§ 1.1308 Consideration of environmental assessments (EAs); findings of no
significant impact.
§ 1.1309 Application amendments.
§ 1.1310 Radiofrequency radiation exposure limits.
§ 1.1311 Environmental information to be included in the environmental
assessment (EA).
§ 1.1312 Facilities for which no preconstruction authorization is
required.
§ 1.1313 Objections.
§ 1.1314 Environmental impact statements (EISs).
§ 1.1315 The Draft Environmental Impact Statement (DEIS); Comments.
§ 1.1317 The Final Environmental Impact Statement (FEIS).
§ 1.1319 Consideration of the environmental impact statements.
Subpart J—Pole Attachment Complaint Procedures
§ 1.1401 Purpose.
§ 1.1402 Definitions.
§ 1.1403 Duty to provide access; modifications; notice of removal,
increase or modification; petition for temporary stay; and cable operator
notice.
§ 1.1404 Complaint.
§ 1.1405 File numbers.
§ 1.1406 Dismissal of complaints.
§ 1.1407 Response and reply.
§ 1.1408 Number of copies and form of pleadings.
§ 1.1409 Commission consideration of the complaint.
§ 1.1410 Remedies.
§ 1.1411 Meetings and hearings.
§ 1.1412 Enforcement.
§ 1.1413 Forfeiture.
§ 1.1414 State certification.
§ 1.1415 Other orders.
§ 1.1416 Imputation of rates; modification costs.
§ 1.1417 Allocation of Unusable Space Costs.
§ 1.1418 Use of presumptions in calculating the space factor.
Subpart K—Implementation of the Equal Access to Justice Act (EAJA) in Agency
Proceedings
General Provisions
§ 1.1501 Purpose of these rules.
§ 1.1502 When the EAJA applies.
§ 1.1503 Proceedings covered.
§ 1.1504 Eligibility of applicants.
§ 1.1505 Standards for awards.
§ 1.1506 Allowable fees and expenses.
§ 1.1507 Rulemaking on maximum rates for attorney fees.
§ 1.1508 Awards against other agencies.
Information Required From Applicants
§ 1.1511 Contents of application.
§ 1.1512 Net worth exhibit.
§ 1.1513 Documentation of fees and expenses.
§ 1.1514 When an application may be filed.
Procedures for Considering Applications
§ 1.1521 Filing and service of documents.
§ 1.1522 Answer to application.
§ 1.1523 Reply.
§ 1.1524 Comments by other parties.
§ 1.1525 Settlement.
§ 1.1526 Further proceedings.
§ 1.1527 Decision.
§ 1.1528 Commission review.
§ 1.1529 Judicial review.
§ 1.1530 Payment of award.
Subpart L—Random Selection Procedures for Mass Media Services
General Procedures
§ 1.1601 Scope.
§ 1.1602 Designation for random selection.
§ 1.1603 Conduct of random selection.
§ 1.1604 Post-selection hearings.
§ 1.1621 Definitions.
§ 1.1622 Preferences.
§ 1.1623 Probability calculation.
Subpart M—Cable Operations and Licensing System (COALS)
§ 1.1701 Purpose.
§ 1.1702 Scope.
§ 1.1703 Definitions.
§ 1.1704 Station files.
§ 1.1705 Forms; electronic and manual filing.
§ 1.1706 Content of filings.
§ 1.1707 Acceptance of filings.
Subpart N—Enforcement of Nondiscrimination on the Basis of Disability In
Programs or Activities Conducted By the Federal Communications Commission
§ 1.1801 Purpose.
§ 1.1802 Applications.
§ 1.1803 Definitions.
§ 1.1805 Federal Communications Commission Section 504 Programs and
Activities Accessibility Handbook.
§ 1.1810 Review of compliance.
§ 1.1811 Notice.
§ 1.1830 General prohibitions against discrimination.
§ 1.1840 Employment.
§ 1.1849 Program accessibility: Discrimination prohibited.
§ 1.1850 Program accessibility: Existing facilities.
§ 1.1851 Building accessibility: New construction and alterations.
§ 1.1870 Compliance procedures.
Subpart O—Collection of Claims Owed the United States
General Provisions
§ 1.1901 Definitions and construction.
§ 1.1902 Exceptions.
§ 1.1903 Use of procedures.
§ 1.1904 Conformance to law and regulations.
§ 1.1905 Other procedures; collection of forfeiture penalties.
§ 1.1906 Informal action.
§ 1.1907 Return of property or collateral.
§ 1.1908 Omissions not a defense.
§ 1.1909 [Reserved]
§ 1.1910 Effect of insufficient fee payments, delinquent debts, or
debarment.
Administrative Offset—Consumer Reporting Agencies—Contracting for Collection
§ 1.1911 Demand for payment.
§ 1.1912 Collection by administrative offset.
§ 1.1913 Administrative offset against amounts payable from Civil Service
Retirement and Disability Fund.
§ 1.1914 Collection in installments.
§ 1.1915 Exploration of compromise.
§ 1.1916 Suspending or terminating collection action.
§ 1.1917 Referrals to the Department of Justice and transfer of delinquent
debt to the Secretary of Treasury.
§ 1.1918 Use of consumer reporting agencies.
§ 1.1919 Contracting for collection services.
§§ 1.1920-1.1924 [Reserved]
Salary Offset-Individual Debt
§ 1.1925 Purpose.
§ 1.1926 Scope.
§ 1.1927 Notification.
§ 1.1928 Hearing.
§ 1.1929 Deduction from employee's pay.
§ 1.1930 Liquidation from final check or recovery from other payment.
§ 1.1931 Non-waiver of rights by payments.
§ 1.1932 Refunds.
§ 1.1933 Interest, penalties and administrative costs.
§ 1.1934 Recovery when the Commission is not creditor agency.
§ 1.1935 Obtaining the services of a hearing official.
§ 1.1936 Administrative wage garnishment.
§§ 1.1937-1.1939 [Reserved]
Interest, Penalties, Administrative Costs and Other Sanctions
§ 1.1940 Assessment.
§ 1.1941 Exemptions.
§ 1.1942 Other sanctions.
§§ 1.1943-1.1949 [Reserved]
Cooperation With the Internal Revenue Service
§ 1.1950 Reporting discharged debts to the Internal Revenue Service.
§ 1.1951 Offset against tax refunds.
§ 1.1952 Use and disclosure of mailing addresses.
General Provisions Concerning Interagency Requests
§ 1.1953 Interagency requests.
Subpart P—Implementation of the Anti-Drug Abuse Act of 1988
§ 1.2001 Purpose.
§ 1.2002 Applicants required to submit information.
§ 1.2003 Applications affected.
Subpart Q—Competitive Bidding Proceedings
General Procedures
§ 1.2101 Purpose.
§ 1.2102 Eligibility of applications for competitive bidding.
§ 1.2103 Competitive bidding design options.
§ 1.2104 Competitive bidding mechanisms.
§ 1.2105 Bidding application and certification procedures; prohibition of
collusion.
§ 1.2106 Submission of upfront payments.
§ 1.2107 Submission of down payment and filing of long-form applications.
§ 1.2108 Procedures for filing petitions to deny against long-form
applications.
§ 1.2109 License grant, denial, default, and disqualification.
§ 1.2110 Designated entities.
§ 1.2111 Assignment or transfer of control: unjust enrichment.
§ 1.2112 Ownership disclosure requirements for applications.
§ 1.2113 Construction prior to grant of application.
§ 1.2114 Reporting of eligibility event.
Subpart R—Implementation of Section 4(g)(3) of the Communications Act:
Procedures Governing Acceptance of Unconditional Gifts, Donations and
Bequests
§ 1.3000 Purpose and scope.
§ 1.3001 Definitions.
§ 1.3002 Structural rules and prohibitions.
§ 1.3003 Mandatory factors for evaluating conflicts of interest.
§ 1.3004 Public disclosure and reporting requirements.
Subpart S—Preemption of Restrictions That “Impair” the Ability To Receive
Television Broadcast Signals, Direct Broadcast Satellite Services, or
Multichannel Multipoint Distribution Services or the Ability To Receive or
Transmit Fixed Wireless Communications Signals
§ 1.4000 Restrictions impairing reception of television broadcast signals,
direct broadcast satellite services or multichannel multipoint distribution
services.
Subpart T—Exempt Telecommunications Companies
§ 1.5000 Purpose.
§ 1.5001 Definitions.
§ 1.5002 Contents of application and procedure for filing.
§ 1.5003 Effect of filing.
§ 1.5004 Commission action.
§ 1.5005 Notification of Commission action to the Securities and Exchange
Commission.
§ 1.5006 Procedure for notifying Commission of material change in facts.
§ 1.5007 Comments.
Subpart U—Implementation of Section 325(e) of the Communications Act:
Procedures Governing Complaints Filed by Television Broadcast Stations
Against Satellite Carriers for Retransmission Without Consent
§ 1.6000 Purpose.
§ 1.6001 Retransmission consent complaint procedures.
§ 1.6002 Form and content.
§ 1.6003 Service requirements.
§ 1.6004 Answers.
§ 1.6005 Exclusive defenses.
§ 1.6006 Counting of violations.
§ 1.6007 Burden of proof.
§ 1.6008 Determinations.
§ 1.6009 Relief.
§ 1.6010 Reporting of remedial measures.
§ 1.6011 Effective date.
§ 1.6012 Sunset provisions.
Subpart V—Implementation of Section 706 of the Telecommunications Act of
1996; Commission Collection of Advanced Telecommunications Capability Data
§ 1.7000 Purpose.
§ 1.7001 Scope and content of filed reports.
§ 1.7002 Frequency of reports.
Subpart W—FCC Registration Number
§ 1.8001 FCC Registration Number (FRN).
§ 1.8002 Obtaining an FRN.
§ 1.8003 Providing the FRN in Commission filings.
§ 1.8004 Penalty for Failure to Provide the FRN.
Subpart X—Spectrum Leasing
Scope And Authority
§ 1.9001 Purpose and scope.
§ 1.9003 Definitions.
§ 1.9005 Included services.
General Policies and Procedures
§ 1.9010 De facto control standard for spectrum leasing arrangements.
§ 1.9020 Spectrum manager leasing arrangements.
§ 1.9030 Long-term de facto transfer leasing arrangements.
§ 1.9035 Short-term de facto transfer leasing arrangements.
§ 1.9040 Contractual requirements applicable to spectrum leasing
arrangements.
§ 1.9045 Requirements for spectrum leasing arrangements entered into by
licensees participating in the installment payment program.
§ 1.9047 Special provisions relating to leases of educational broadband
service spectrum.
§ 1.9048 Special provisions relating to spectrum leasing arrangements
involving licensees in the Public Safety Radio Services.
§ 1.9050 Who may sign spectrum leasing notifications and applications.
§ 1.9055 Assignment of file numbers to spectrum leasing notifications and
applications.
§ 1.9060 Amendments, waivers, and dismissals affecting spectrum leasing
notifications and applications.
§ 1.9080 Private commons.
Subpart Y—International Bureau Filing System
§ 1.10000 What is the purpose of these rules?
§ 1.10001 Definitions.
§ 1.10002 What happens if the rules conflict?
§ 1.10003 When can I start operating?
§ 1.10004 What am I allowed to do if I am approved?
§ 1.10005 What is IBFS?
§ 1.10006 Is electronic filing mandatory?
§ 1.10007 What applications can I file electronically?
§ 1.10008 What are IBFS file numbers?
§ 1.10009 What are the steps for electronic filing?
§ 1.10010 Do I need to send paper copies with my electronic applications?
§ 1.10011 Who may sign applications?
§ 1.10012 When can I file on IBFS?
§ 1.10013 How do I check the status of my application after I file it?
§ 1.10014 What happens after officially filing my application?
§ 1.10015 Are there exceptions for emergency filings?
§ 1.10016 How do I apply for special temporary authority?
§ 1.10017 How can I submit additional information?
§ 1.10018 May I amend my application?
Subpart Z—Communications Assistance for Law Enforcement Act
§ 1.20000 Purpose.
§ 1.20001 Scope.
§ 1.20002 Definitions.
§ 1.20003 Policies and procedures for employee supervision and control.
§ 1.20004 Maintaining secure and accurate records.
§ 1.20005 Submission of policies and procedures and Commission review.
§ 1.20006 Assistance capability requirements.
§ 1.20007 Additional assistance capability requirements for wireline,
cellular, and PCS telecommunications carriers.
§ 1.20008 Penalties.
Appendix A to Part 1—A Plan of Cooperative Procedure in Matters and Cases
Under the Provisions of Section 410 of the Communications Act of 1934
Appendix B to Part 1—Nationwide Programmatic Agreement for the Collocation
of Wireless Antennas
Appendix C to Part 1—Nationwide Programmatic Agreement Regarding the Section
106 National Historic Preservation Act Review Process
___________________________________
Authority: 15 U.S.C. 79 et seq. ; 47 U.S.C. 151, 154(i), 154(j), 155, 157,
225, 303(r), and 309.
Editorial Note: Nomenclature changes to part 1 appear at 63 FR 54077 , Oct.
8, 1998.
Subpart A—General Rules of Practice and Procedure
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Source: 28 FR 12415 , Nov. 22, 1963, unless otherwise noted.
General
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§ 1.1 Proceedings before the Commission.
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The Commission may on its own motion or petition of any interested party
hold such proceedings as it may deem necessary from time to time in
connection with the investigation of any matter which it has power to
investigate under the law, or for the purpose of obtaining information
necessary or helpful in the determination of its policies, the carrying out
of its duties or the formulation or amendment of its rules and regulations.
For such purposes it may subpena witnesses and require the production of
evidence. Procedures to be followed by the Commission shall, unless
specifically prescribed in this part, be such as in the opinion of the
Commission will best serve the purposes of such proceedings.
(Sec. 403, 48 Stat. 1094; 47 U.S.C. 403)
§ 1.2 Declaratory rulings.
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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.
(5 U.S.C. 554)
§ 1.3 Suspension, amendment, or waiver of rules.
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The provisions of this chapter may be suspended, revoked, amended, or waived
for good cause shown, in whole or in part, at any time by the Commission,
subject to the provisions of the Administrative Procedure Act and the
provisions of this chapter. Any provision of the rules may be waived by the
Commission on its own motion or on petition if good cause therefor is shown.
Cross Reference:
See subpart C of this part for practice and procedure involving rulemaking.
§ 1.4 Computation of time.
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(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.
(b) General Rule—Computation of Beginning Date When Action is Initiated by
Commission or Staff. Unless otherwise provided, the first day to be counted
when a period of time begins with an action taken by the Commission, an
Administrative Law Judge or by members of the Commission or its staff
pursuant to delegated authority is the day after the day on which public
notice of that action is given. See §1.4(b) (1)–(5) of this section. Unless
otherwise provided, all Rules measuring time from the date of the issuance
of a Commission document entitled “Public Notice” shall be calculated in
accordance with this section. See §1.4(b)(4) of this section for a
description of the “Public Notice” document. Unless otherwise provided in
§1.4 (g) and (h) of this section, it is immaterial whether the first day is
a “holiday.” For purposes of this section, the term public notice means the
date of any of the following events: See §1.4(e)(1) of this section for
definition of “holiday.”
(1) For all documents in notice and comment and non-notice and comment
rulemaking proceedings required by the Administrative Procedure Act, 5
U.S.C. 552, 553, to be published in theFederal Register,including summaries
thereof, the date of publication in theFederal Register.
Note to paragraph(b)(1): Licensing and other adjudicatory decisions with
respect to specific parties that may be associated with or contained in
rulemaking documents are governed by the provisions of §1.4(b)(2).
Example 1: A document in a Commission rule making proceeding is published
in theFederal Registeron Wednesday, May 6, 1987. Public notice commences on
Wednesday, May 6, 1987. The first day to be counted in computing the
beginning date of a period of time for action in response to the document is
Thursday, May 7, 1987, the “day after the day” of public notice.
Example 2: Section 1.429(e) provides that when a petition for
reconsideration is timely filed in proper form, public notice of its filing
is published in theFederal Register.Section 1.429(f) provides that
oppositions to a petition for reconsideration shall be filed within 15 days
after public notice of the petition's filing in theFederal Register.Public
notice of the filing of a petition for reconsideration is published in
theFederal Registeron Wednesday, June 10, 1987. For purposes of computing
the filing period for an opposition, the first day to be counted is
Thursday, June 11, 1987, which is the day after the date of public notice.
Therefore, oppositions to the reconsideration petition must be filed by
Thursday, June 25, 1987, 15 days later.
(2) For non-rulemaking documents released by the Commission or staff,
including the Commission's section 271 determinations, 47 U.S.C. 271, the
release date.
Example 3: The Chief, Mass Media Bureau, adopts an order on Thursday,
April 2, 1987. The text of that order is not released to the public until
Friday, April 3, 1987. Public notice of this decision is given on Friday,
April 3, 1987. Saturday, April 4, 1987, is the first day to be counted in
computing filing periods.
(3) For rule makings of particular applicability, if the rule making
document is to be published in theFederal Registerand the Commission so
states in its decision, the date of public notice will commence on the day
of theFederal Registerpublication date. If the decision fails to
specifyFederal Registerpublication, the date of public notice will commence
on the release date, even if the document is subsequently published in
theFederal Register. See Declaratory Ruling, 51 FR 23059 (June 25, 1986).
Example 4: An order establishing an investigation of a tariff, and
designating issues to be resolved in the investigation, is released on
Wednesday, April 1, 1987, and is published in theFederal Registeron Friday,
April 10, 1987. If the decision itself specifiesFederal Registerpublication,
the date of public notice is Friday, April 10, 1987. If this decision does
not specifyFederal Registerpublication, public notice occurs on Wednesday,
April 1, 1987, and the first day to be counted in computing filing periods
is Thursday, April 2, 1987.
(4) If the full text of an action document is not to be released by the
Commission, but a descriptive document entitled “Public Notice” describing
the action is released, the date on which the descriptive “Public Notice” is
released.
Example 5: At a public meeting the Commission considers an uncontested
application to transfer control of a broadcast station. The Commission
grants the application and does not plan to issue a full text of its
decision on the uncontested matter. Five days after the meeting, a
descriptive “Public Notice” announcing the action is publicly released. The
date of public notice commences on the day of the release date.
Example 6: A Public Notice of petitions for rule making filed with the
Commission is released on Wednesday, September 2, 1987; public notice of
these petitions is given on September 2, 1987. The first day to be counted
in computing filing times is Thursday, September 3, 1987.
(5) If a document is neither published in theFederal Registernor released,
and if a descriptive document entitled “Public Notice” is not released, the
date appearing on the document sent (e.g., mailed, telegraphed, etc.) to
persons affected by the action.
Example 7: A Bureau grants a license to an applicant, or issues a waiver
for non-conforming operation to an existing licensee, and no “Public
Notice” announcing the action is released. The date of public notice
commences on the day appearing on the license mailed to the applicant or
appearing on the face of the letter granting the waiver mailed to the
licensee.
(c) General Rule—Computation of Beginning Date When Action is Initiated by
Act, Event or Default. Commission procedures frequently require the
computation of a period of time where the period begins with the occurrence
of an act, event or default and terminates a specific number of days
thereafter. Unless otherwise provided, the first day to be counted when a
period of time begins with the occurrence of an act, event or default is the
day after the day on which the act, event or default occurs.
Example 8: Commission Rule §21.39(d) requires the filing of an application
requesting consent to involuntary assignment or control of the permit or
license within thirty days after the occurrence of the death or legal
disability of the licensee or permittee. If a licensee passes away on
Sunday, March 1, 1987, the first day to be counted pursuant to §1.4(c) is
the day after the act or event. Therefore, Monday, March 2, 1987, is the
first day of the thirty day period specified in §21.39(d).
(d) General Rule—Computation of Terminal Date. Unless otherwise provided,
when computing a period of time the last day of such period of time is
included in the computation, and any action required must be taken on or
before that day.
Example 9: Paragraph 1.4(b)(1) of this section provides that “public
notice” in a notice and comment rule making proceeding begins on the day
ofFederal Registerpublication. Paragraph 1.4(b) of this section provides
that the first day to be counted in computing a terminal date is the “day
after the day” on which public notice occurs. Therefore, if the commission
allows or requires an action to be taken 20 days after public notice in
theFederal Register,the first day to be counted is the day after the date of
theFederal Registerpublication. Accordingly, if theFederal Registerdocument
is published on Thursday, July 23, 1987, public notice is given on Thursday,
July 23, and the first day to be counted in computing a 20 day period is
Friday, July 24, 1987. The 20th day or terminal date upon which action must
be taken is Wednesday, August 12, 1987.
(e) Definitions for purposes of this section:
(1) The term holiday means 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.
Note: As of August 1987, officially recognized Federal legal holidays are
New Year's Day, January 1; Martin Luther King's Birthday, third Monday in
January; Washington's Birthday, third Monday in February; Memorial Day, last
Monday in May; Independence Day, July 4; Labor Day, first Monday in
September; Columbus Day, second Monday in October; Veterans Day, November
11; Thanksgiving Day, fourth Thursday in November; Christmas Day, December
25. If a legal holiday falls on Saturday or Sunday, the holiday is taken,
respectively, on the preceding Friday or the following Monday. In addition,
January 20, (Inauguration Day) following a Presidential election year is a
legal holiday in the metropolitan Washington, DC area. If Inauguration Day
falls on Sunday, the next succeeding day is a legal holiday. See 5 U.S.C.
6103; Executive Order No. 11582, 36 FR 2957 (Feb. 11, 1971). The
determination of a “holiday” will apply only to the specific Commission
location(s) designated as on “holiday” on that particular day.
(2) The term business day means all days, including days when the Commission
opens later than the time specified in Rule §0.403, which are not
“holidays” as defined above.
(3) The term filing period means the number of days allowed or prescribed by
statute, rule, order, notice or other Commission action for filing any
document with the Commission. It does not include any additional days
allowed for filing any document pursuant to paragraphs (g), (h) and (j) of
this section.
(4) The term filing date means the date upon which a document must be filed
after all computations of time authorized by this section have been made.
(f) Except as provided in §0.401(b) of this chapter, all petitions,
pleadings, tariffs or other documents not required to be accompanied by a
fee and which are hand-delivered must be tendered for filing in complete
form, as directed by the Rules, with the Office of the Secretary before 7
p.m., at 236 Massachusetts Ave, NE., Washington, DC 20002. The Secretary
will determine whether a tendered document meets the pre-7:00 p.m. deadline.
Documents filed electronically pursuant to §1.49(f) must be received by the
Commission's electronic filing system before midnight. Applications,
attachments and pleadings filed electronically in the Universal Licensing
System (ULS) pursuant to §1.939(b) must be received before midnight on the
filing date. Media Bureau applications and reports filed electronically
pursuant to §73.3500 of this chapter must be received by the electronic
filing system before midnight on the filing date.
(g) Unless otherwise provided (e.g., §§1.773 and 76.1502(e)(1) of this
chapter), if the filing period is less than 7 days, intermediate holidays
shall not be counted in determining the filing date.
Example 10: A reply is required to be filed within 5 days after the filing
of an opposition in a license application proceeding. The opposition is
filed on Wednesday, June 10, 1987. The first day to be counted in computing
the 5 day time period is Thursday, June 11, 1987. Saturday and Sunday are
not counted because they are holidays. The document must be filed with the
Commission on or before the following Wednesday, June 17, 1987.
(h) If a document is required to be served upon other parties by statute or
Commission regulation and the document is in fact served by mail (see
§1.47(f)), and the filing period for a response is 10 days or less, an
additional 3 days (excluding holidays) will be allowed to all parties in the
proceeding for filing a response. This paragraph (h) shall not apply to
documents filed pursuant to §1.89, §1.120(d), §1.315(b) or §1.316. For
purposes of this paragraph (h) service by facsimile or by electronic means
shall be deemed equivalent to hand delivery.
Example 11: A reply to an opposition for a petition for reconsideration
must be filed within 7 days after the opposition is filed. 47 CFR 1.106(h).
The rules require that the opposition be served on the person seeking
reconsideration. 47 CFR 1.106(g). If the opposition is served on the party
seeking reconsideration by mail and the opposition is filed with the
Commission on Monday, November 9, 1987, the first day to be counted is
Tuesday, November 10, 1987 (the day after the day on which the event
occurred, §1.4(c)), and the seventh day is Monday, November 16. An
additional 3 days (excluding holidays) is then added at the end of the 7 day
period, and the reply must be filed no later than Thursday, November 19,
1987.
Example 12: Assume that oppositions to a petition in a particular
proceeding are due 10 days after the petition is filed and must be served on
the parties to the proceeding. If the petition is filed on October 28, 1993,
the last day of the filing period for oppositions is Sunday, November 7. If
service is made by mail, the opposition is due three days after November 7,
or Wednesday, November 10.
(i) If both paragraphs (g) and (h) of this section are applicable, make the
paragraph (g) computation before the paragraph (h) computation.
Example 13: Section 1.45(b) requires the filing of replies to oppositions
within five days after the time for filing oppositions has expired. If an
opposition has been filed on the last day of the filing period (Friday, July
10, 1987), and was served on the replying party by mail, §1.4(i) of this
section specifies that the paragraph (g) computation should be made before
the paragraph (h) computation. Therefore, since the specified filing period
is less than seven days, paragraph (g) is applied first. The first day of
the filing period is Monday, July 13, 1987, and Friday, July 17, 1987 is the
fifth day (the intervening weekend was not counted). Paragraph (h) is then
applied to add three days for mailing (excluding holidays). That period
begins on Monday, July 20, 1987. Therefore, Wednesday, July 22, 1987, is the
date by which replies must be filed, since the intervening weekend is again
not counted.
(j) Unless otherwise provided (e.g. §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.
Example 14: The filing date falls on Friday, December 25, 1987. The
document is required to be filed on the next business day, which is Monday,
December 28, 1987.
(k) Where specific provisions of part 1 conflict with this section, those
specific provisions of part 1 are controlling. See, e.g.,§§1.45(d),
1.773(a)(3) and 1.773(b)(2). Additionally, where §76.1502(e) of this chapter
conflicts with this section, those specific provisions of §76.1502 are
controlling. See e.g. 47 CFR 76.1502(e).
[ 52 FR 49159 , Dec. 30, 1987; 53 FR 44196 , Nov. 2, 1988, as amended at 56 FR 40567 , 40568, Aug. 15, 1991; 58 FR 17529 , Apr. 5, 1993; 61 FR 11749 , Mar.
22, 1996; 62 FR 26238 , May 13, 1997; 63 FR 24124 , May 1, 1998; 64 FR 27201 ,
May 19, 1999; 64 FR 60725 , Nov. 8, 1999; 65 FR 46109 , July 27, 2000; 67 FR 13223 , Mar. 21, 2002; 71 FR 15618 , Mar. 29, 2006]
§ 1.5 Mailing address furnished by licensee.
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(a) Each licensee shall furnish the Commission with an address to be used by
the Commission in serving documents or directing correspondence to that
licensee. Unless any licensee advises the Commission to the contrary, the
address contained in the licensee's most recent application will be used by
the Commission for this purpose.
(b) The licensee is responsible for making any arrangements which may be
necessary in his particular circumstances to assure that Commission
documents or correspondence delivered to this address will promptly reach
him or some person authorized by him to act in his behalf.
§ 1.6 Availability of station logs and records for Commission inspection.
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(a) Station records and logs shall be made available for inspection or
duplication at the request of the Commission or its representative. Such
logs or records may be removed from the licensee's possession by a
Commission representative or, upon request, shall be mailed by the licensee
to the Commission by either registered mail, return receipt requested, or
certified mail, return receipt requested. The return receipt shall be
retained by the licensee as part of the station records until such records
or logs are returned to the licensee. A receipt shall be furnished when the
logs or records are removed from the licensee's possession by a Commission
representative and this receipt shall be retained by the licensee as part of
the station records until such records or logs are returned to the licensee.
When the Commission has no further need for such records or logs, they shall
be returned to the licensee. The provisions of this rule shall apply solely
to those station logs and records which are required to be maintained by the
provisions of this chapter.
(b) Where records or logs are maintained as the official records of a
recognized law enforcement agency and the removal of the records from the
possession of the law enforcement agency will hinder its law enforcement
activities, such records will not be removed pursuant to this section if the
chief of the law enforcement agency promptly certifies in writing to the
Federal Communications Commission that removal of the logs or records will
hinder law enforcement activities of the agency, stating insofar as feasible
the basis for his decision and the date when it can reasonably be expected
that such records will be released to the Federal Communications Commission.
§ 1.7 Documents are filed upon receipt.
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Unless otherwise provided in this Title, by Public Notice, or by decision of
the Commission or of the Commission's staff acting on delegated authority,
pleadings and other documents are considered to be filed with the Commission
upon their receipt at the location designated by the Commission.
[ 60 FR 16055 , Mar. 29, 1995]
§ 1.8 Withdrawal of papers.
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The granting of a request to dismiss or withdraw an application or a
pleading does not authorize the removal of such application or pleading from
the Commission's records.
§ 1.10 Transcript of testimony; copies of documents submitted.
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In any matter pending before the Commission, any person submitting data or
evidence, whether acting under compulsion or voluntarily, shall have the
right to retain a copy thereof, or to procure a copy of any document
submitted by him, or of any transcript made of his testimony, upon payment
of the charges therefor to the person furnishing the same, which person may
be designated by the Commission. The Commission itself shall not be
responsible for furnishing the copies.
[ 29 FR 14406 , Oct. 20, 1964]
§ 1.12 Notice to attorneys of Commission documents.
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In any matter pending before the Commission in which an attorney has
appeared for, submitted a document on behalf of or been otherwise designated
by a person, any notice or other written communication pertaining to that
matter issued by the Commission and which is required or permitted to be
furnished to the person will be communicated to the attorney, or to one of
such attorneys if more than one is designated. If direct communication with
the party is appropriate, a copy of such communication will be mailed to the
attorney.
[ 29 FR 14406 , Oct. 20, 1964]
§ 1.13 Filing of petitions for review and notices of appeals of Commission
orders.
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(a)(1) This section pertains to each party filing a petition for review in
any United States court of appeals of a Commission Order, pursuant to
section 402(a) of the Communications Act, 47 U.S.C. 402(a), and 28 U.S.C.
2342(l), that wishes to avail itself of procedures established for selection
of a court in the case of multiple appeals, pursuant to 28 U.S.C. 2112(a).
Each such party shall, within ten days after the issuance of that order,
file with the General Counsel in the Office of General Counsel, Room 8–A741,
445 12th Street, SW., Washington, DC 20554, a copy of its petition for
review as filed and date-stamped by the court of appeals within which it was
filed. Such copies of petitions for review must be filed by 5:30 p.m.
Eastern Time on the tenth day of the filing period. A stamp indicating the
time and date received by the Office of General Counsel will constitute
proof of filing. Upon receipt of any copies of petitions for review, the
Commission shall follow the procedures established in section 28 U.S.C.
2112(a) to determine the court in which to file the record in that case.
(2) Computation of time of the ten-day period for filing copies of petitions
for review of a Commission order shall be governed by Rule 26 of the Federal
Rules of Appellate Procedure. The date of issuance of a Commission order for
purposes of filing copies of petitions for review shall be the date of
public notice as defined in §1.4(b) of the Commission's Rules, 47 CFR
1.4(b).
(b) Copies of notices of appeals filed pursuant to 47 U.S.C. 402(b) shall be
served upon the General Counsel.
Note: For administrative efficiency, the Commission requests that any
petitioner seeking judicial review of Commission actions pursuant to 47
U.S.C. 402(a) serve a copy of its petition on the General Counsel regardless
of whether it wishes to avail itself of the procedures for multiple appeals
set forth in 47 U.S.C. 2112(a).
[ 54 FR 12453 , Mar. 27, 1989, as amended at 65 FR 14476 , Mar. 17, 2000; 71 FR 6381 , Feb. 8, 2006]
§ 1.14 Citation of Commission documents.
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The appropriate reference to the FCC Record shall be included as part of the
citation to any document that has been printed in the Record. The citation
should provide the volume, page number and year, in that order (e.g., 1 FCC
Rcd. 1 (1986). Older documents may continue to be cited to the FCC Reports,
first or second series, if they were printed in the Reports (e.g., 1 FCC 2d
1 (1965)).
[ 51 FR 45890 , Dec. 23, 1986]
§ 1.16 Unsworn declarations under penalty of perjury in lieu of affidavits.
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Any document to be filed with the Federal Communications Commission and
which is required by any law, rule or other regulation of the United States
to be supported, evidenced, established or proved by a written sworn
declaration, verification, certificate, statement, oath or affidavit by the
person making the same, may be supported, evidenced, established or proved
by the unsworn declaration, certification, verification, or statement in
writing of such person, except that, such declaration shall not be used in
connection with: (a) A deposition, (b) an oath of office, or (c) an oath
required to be taken before a specified official other than a notary public.
Such declaration shall be subscribed by the declarant as true under penalty
of perjury, and dated, in substantially the following form:
(1) If executed without the United States:
“I declare (or certify, verify, or state) under penalty of perjury under the
laws of the United States of America that the foregoing is true and correct.
Executed on (date).
(Signature) ________________________________ ”.
(2) If executed within the United States, its territories, possessions, or
commonwealths:
“I declare (or certify, verify, or state) under penalty of perjury that the
foregoing is true and correct. Executed on (date).
(Signature) ________________________________ ”.
[ 48 FR 8074 , Feb. 25, 1983]
§ 1.17 Truthful and accurate statements to the Commission.
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(a) In any investigatory or adjudicatory matter within the Commission's
jurisdiction (including, but not limited to, any informal adjudication or
informal investigation but excluding any declaratory ruling proceeding) and
in any proceeding to amend the FM or Television Table of Allotments (with
respect to expressions of interest) or any tariff proceeding, no person
subject to this rule shall;
(1) In any written or oral statement of fact, intentionally provide material
factual information that is incorrect or intentionally omit material
information that is necessary to prevent any material factual statement that
is made from being incorrect or misleading; and
(2) In any written statement of fact, provide material factual information
that is incorrect or omit material information that is necessary to prevent
any material factual statement that is made from being incorrect or
misleading without a reasonable basis for believing that any such material
factual statement is correct and not misleading.
(b) For purpose of paragraph (a) of this section, “persons subject to this
rule” shall mean the following:
(1) Any applicant for any Commission authorization;
(2) Any holder of any Commission authorization, whether by application or by
blanket authorization or other rule;
(3) Any person performing without Commission authorization an activity that
requires Commission authorization;
(4) Any person that has received a citation or a letter of inquiry from the
Commission or its staff, or is otherwise the subject of a Commission or
staff investigation, including an informal investigation;
(5) In a proceeding to amend the FM or Television Table of Allotments, any
person filing an expression of interest; and
(6) To the extent not already covered in this paragraph (b), any cable
operator or common carrier.
[ 68 FR 15098 , Mar. 28, 2003]
§ 1.18 Administrative Dispute Resolution.
top
(a) The Commission has adopted an initial policy statement that supports and
encourages the use of alternative dispute resolution procedures in its
administrative proceedings and proceedings in which the Commission is a
party, including the use of regulatory negotiation in Commission rulemaking
matters, as authorized under the Administrative Dispute Resolution Act and
Negotiated Rulemaking Act.
(b) In accordance with the Commission's policy to encourage the fullest
possible use of alternative dispute resolution procedures in its
administrative proceedings, procedures contained in the Administrative
Dispute Resolution Act, including the provisions dealing with
confidentiality, shall also be applied in Commission alternative dispute
resolution proceedings in which the Commission itself is not a party to the
dispute.
[ 56 FR 51178 , Oct. 10, 1991, as amended at 57 FR 32181 , July 21, 1992]
§ 1.19 Use of metric units required.
top
Where parenthesized English units accompany metric units throughout this
chapter, and the two figures are not precisely equivalent, the metric unit
shall be considered the sole requirement; except, however, that the use of
metric paper sizes is not currently required, and compliance with the
English unit shall be considered sufficient when the Commission form
requests that data showing compliance with that particular standard be
submitted in English units.
[ 58 FR 44893 , Aug. 25, 1993]
Parties, Practitioners, and Witnesses
top
§ 1.21 Parties.
top
(a) Any party may appear before the Commission and be heard in person or by
attorney.
(b) The appropriate Bureau Chief(s) of the Commission shall be deemed to be
a party to every adjudicatory proceeding (as defined in the Administrative
Procedure Act) without the necessity of being so named in the order
designating the proceeding for hearing.
(c) When, in any proceeding, a pleading is filed on behalf of either the
General Counsel or the Chief Engineer, he shall thereafter be deemed a party
to the proceeding.
(d) Except as otherwise expressly provided in this chapter, a duly
authorized corporate officer or employee may act for the corporation in any
matter which has not been designated for an evidentiary hearing and, in the
discretion of the presiding officer, may appear and be heard on behalf of
the corporation in an evidentiary hearing proceeding.
[ 28 FR 12415 , Nov. 22, 1963, as amended at 37 FR 8527 , Apr. 28, 1972; 44 FR 39180 , July 5, 1979; 51 FR 12616 , Apr. 14, 1986]
§ 1.22 Authority for representation.
top
Any person, in a representative capacity, transacting business with the
Commission, may be required to show his authority to act in such capacity.
§ 1.23 Persons who may be admitted to practice.
top
(a) Any person who is a member in good standing of the bar of the Supreme
Court of the United States or of the highest court of any state, territory
or the District of Columbia, and who is not under any final order of any
authority having power to suspend or disbar an attorney in the practice of
law within any state, territory or the District of Columbia that suspends,
enjoins, restrains, disbars, or otherwise restricts him or her in the
practice of law, may represent others before the Commission.
(b) When such member of the bar acting in a representative capacity appears
in person or signs a paper in practice before the Commission, his personal
appearance or signature shall constitute a representation to the Commission
that, under the provisions of this chapter and the law, he is authorized and
qualified to represent the particular party in whose behalf he acts. Further
proof of authority to act in a representative capacity may be required.
[ 28 FR 12415 , Nov. 22, 1963, as amended at 57 FR 38285 , Aug. 24, 1992]
§ 1.24 Censure, suspension, or disbarment of attorneys.
top
(a) The Commission may censure, suspend, or disbar any person who has
practiced, is practicing or holding himself out as entitled to practice
before it if it finds that such person:
(1) Does not possess the qualifications required by §1.23;
(2) Has failed to conform to standards of ethical conduct required of
practitioners at the bar of any court of which he is a member;
(3) Is lacking in character or professional integrity; and/or
(4) Displays toward the Commission or any of its hearing officers conduct
which, if displayed toward any court of the United States or any of its
Territories or the District of Columbia, would be cause for censure,
suspension, or disbarment.
(b) Except as provided in paragraph (c) of this section, before any member
of the bar of the Commission shall be censured, suspended, or disbarred,
charges shall be preferred by the Commission against such practitioner, and
he or she shall be afforded an opportunity to be heard thereon.
(c) Upon receipt of official notice from any authority having power to
suspend or disbar an attorney in the practice of law within any state,
territory, or the District of Columbia which demonstrates that an attorney
practicing before the Commission is subject to an order of final suspension
(not merely temporary suspension pending further action) or disbarment by
such authority, the Commission may, without any preliminary hearing, enter
an order temporarily suspending the attorney from practice before it pending
final disposition of a disciplinary proceeding brought pursuant to
§1.24(a)(2), which shall afford such attorney an opportunity to be heard and
directing the attorney to show cause within thirty days from the date of
said order why identical discipline should not be imposed against such
attorney by the Commission.
(d) Allegations of attorney misconduct in Commission proceedings shall be
referred under seal to the Office of General Counsel. Pending action by the
General Counsel, the decision maker may proceed with the merits of the
matter but in its decision may make findings concerning the attorney's
conduct only if necessary to resolve questions concerning an applicant and
may not reach any conclusions regarding the ethical ramifications of the
attorney's conduct. The General Counsel will determine if the allegations
are substantial, and, if so, shall immediately notify the attorney and
direct him or her to respond to the allegations. No notice will be provided
to other parties to the proceeding. The General Counsel will then determine
what further measures are necessary to protect the integrity of the
Commission's administrative process, including but not limited to one or
more of the following:
(1) Recommending to the Commission the institution of a proceeding under
paragraph (a) of this section;
(2) Referring the matter to the appropriate State, territorial, or District
of Columbia bar; or
(3) Consulting with the Department of Justice.
[ 28 FR 12415 , Nov. 22, 1963, as amended at 57 FR 38285 , Aug. 24, 1992; 60 FR 53277 , Oct. 13, 1995]
§ 1.25 [Reserved]
top
§ 1.26 Appearances.
top
Rules relating to appearances are set forth in §§1.87, 1.91, 1.221, and
1.703.
§ 1.27 Witnesses; right to counsel.
top
Any individual compelled to appear in person in any Commission proceeding
may be accompanied, represented, and advised by counsel as provided in this
section. (Regulations as to persons seeking voluntarily to appear and give
evidence are set forth in §1.225.)
(a) Counsel may advise his client in confidence, either upon his own
initiative or that of the witness, before, during, and after the conclusion
of the proceeding.
(b) Counsel for the witness will be permitted to make objections on the
record, and to state briefly the basis for such objections, in connection
with any examination of his client.
(c) At the conclusion of the examination of his client, counsel may ask
clarifying questions if in the judgment of the presiding officer such
questioning is necessary or desirable in order to avoid ambiguity or
incompleteness in the responses previously given.
(d) Except as provided by paragraph (c) of this section, counsel for the
witness may not examine or cross-examine any witness, or offer documentary
evidence, unless authorized by the Commission to do so.
(5 U.S.C. 555)
[ 29 FR 12775 , Sept. 10, 1964]
§§ 1.28-1.29 [Reserved]
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Pleadings, Briefs, and Other Papers
top
§ 1.41 Informal requests for Commission action.
top
Except where formal procedures are required under the provisions of this
chapter, requests for action may be submitted informally. Requests should
set forth clearly and concisely the facts relied upon, the relief sought,
the statutory and/or regulatory provisions (if any) pursuant to which the
request is filed and under which relief is sought, and the interest of the
person submitting the request. In application and licensing matters
pertaining to the Wireless Radio Services, as defined in §1.904 of this
part, such requests may also be sent electronically, via the ULS.
[ 28 FR 12415 , Nov. 22, 1963, as amended at 63 FR 68919 , Dec. 14, 1998]
§ 1.42 Applications, reports, complaints; cross-reference.
top
(a) Rules governing applications and reports are contained in subparts D, E,
and F of this part.
(b) Special rules governing complaints against common carriers arising under
the Communications Act are set forth in subpart E of this part.
(c) Rules governing the FCC Registration Number (FRN) are contained in
subpart W of this part.
[ 28 FR 12415 , Nov. 22, 1963, as amended at 66 FR 47895 , Sept. 14, 2001]
§ 1.43 Requests for stay; cross-reference.
top
General rules relating to requests for stay of any order or decision are set
forth in §§1.41, 1.44(e), 1.45 (d) and (e), and 1.298(a). See also §§1.102,
1.106(n), and 1.115(h).
§ 1.44 Separate pleadings for different requests.
top
(a) Requests requiring action by the Commission shall not be combined in a
pleading with requests for action by an administrative law judge or by any
person or persons acting pursuant to delegated authority.
(b) Requests requiring action by an administrative law judge shall not be
combined in a pleading with requests for action by the Commission or by any
person or persons acting pursuant to delegated authority.
(c) Requests requiring action by any person or persons pursuant to delegated
authority shall not be combined in a pleading with requests for action by
any other person or persons acting pursuant to delegated authority.
(d) Pleadings which combine requests in a manner prohibited by paragraph
(a), (b), or (c) of this section may be returned without consideration to
the person who filed the pleading.
(e) Any request to stay the effectiveness of any decision or order of the
Commission shall be filed as a separate pleading. Any such request which is
not filed as a separate pleading will not be considered by the Commission.
Note: Matters which are acted on pursuant to delegated authority are set
forth in subpart B of part 0 of this chapter. Matters acted on by the
hearing examiner are set forth in §0.341.
§ 1.45 Pleadings; filing periods.
top
Except as otherwise provided in this chapter, pleadings in Commission
proceedings shall be filed in accordance with the provisions of this
section. Pleadings associated with licenses, applications, waivers and other
documents in the Wireless Radio Services may be filed via the ULS.
(a) Petitions. Petitions to deny may be filed pursuant to §1.939 of this
part.
(b) Oppositions. Oppositions to any motion, petition, or request may be
filed within 10 days after the original pleading is filed.
(c) Replies. The person who filed the original pleading may reply to
oppositions within 5 days after the time for filing oppositions has expired.
The reply shall be limited to matters raised in the oppositions, and the
response to all such matters shall be set forth in a single pleading;
separate replies to individual oppositions shall not be filed.
(d) Requests for temporary relief; shorter filing periods. Oppositions to a
request for stay of any order or to a request for other temporary relief
shall be filed within 7 days after the request is filed. Replies to
oppositions should not be filed and will not be considered. The provisions
of §1.4(h) shall not apply in computing the filing date for oppositions to a
request for stay or for other temporary relief.
(e) Ex parte disposition of certain pleadings. As a matter of discretion,
the Commission may rule ex parte upon requests for continuances and
extensions of time, requests for permission to file pleadings in excess of
the length prescribed in this chapter, and requests for temporary relief,
without waiting for the filing of oppositions or replies.
Note: Where specific provisions contained in part 1 conflict with this
section, those specific provisions are controlling. See, in particular,
§§1.294(c), 1.298(a), and 1.773.
[ 28 FR 12415 , Nov. 22, 1963, as amended at 33 FR 7153 , May 15, 1968; 45 FR 64190 , Sept. 29, 1980; 54 FR 31032 , July 26, 1989; 54 FR 37682 , Sept. 12,
1989; 63 FR 68919 , Dec. 14, 1998]
§ 1.46 Motions for extension of time.
top
(a) It is the policy of the Commission that extensions of time shall not be
routinely granted.
(b) Motions for extension of time in which to file responses to petitions
for rulemaking, replies to such responses, comments filed in response to
notice of proposed rulemaking, replies to such comments and other filings in
rulemaking proceedings conducted under Subpart C of this part shall be filed
at least 7 days before the filing date. If a timely motion is denied, the
responses and comments, replies thereto, or other filings need not be filed
until 2 business days after the Commission acts on the motion. In emergency
situations, the Commission will consider a late-filed motion for a brief
extension of time related to the duration of the emergency and will consider
motions for acceptance of comments, reply comments or other filings made
after the filing date.
(c) If a motion for extension of time in which to make filings in
proceedings other than notice and comment rule making proceedings is filed
less than 7 days prior to the filing day, the party filing the motion shall
(in addition to serving the motion on other parties) orally notify other
parties and Commission staff personnel responsible for acting on the motion
that the motion has been (or is being) filed.
[ 39 FR 43301 , Dec. 12, 1974, as amended at 41 FR 9550 , Mar. 5, 1976; 41 FR 14871 , Apr. 8, 1976; 42 FR 28887 , June 6, 1977; 63 FR 24124 , May 1, 1998]
§ 1.47 Service of documents and proof of service.
top
(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.
(b) Where any person is required to serve any document filed with the
Commission, service shall be made by that person or by his representative on
or before the day on which the document is filed.
(c) Commission counsel who formally participate in any proceeding shall be
served in the same manner as other persons who participate in that
proceeding. The filing of a document with the Commission does not constitute
service upon Commission counsel.
(d) Except in formal complaint proceedings against common carriers under
§§1.720 through 1.736, documents may be served upon a party, his attorney,
or other duly constituted agent by delivering a copy or by mailing a copy to
the last known address. See §1.736. Documents that are required to be served
must be served in paper form, even if documents are filed in electronic form
with the Commission, unless the party to be served agrees to accept service
in some other form.
(e) Delivery of a copy pursuant to this section means handing it to the
party, his attorney, or other duly constituted agent; or leaving it with the
clerk or other person in charge of the office of the person being served;
or, if there is no one in charge of such office, leaving it in a conspicuous
place therein; or, if such office is closed or the person to be served has
no office, leaving it at his dwelling house or usual place of abode with
some person of suitable age and discretion then residing therein.
(f) Service by mail is complete upon mailing.
(g) Proof of service, as provided in this section, shall be filed before
action is taken. The proof of service shall show the time and manner of
service, and may be by written acknowledgement of service, by certificate of
the person effecting the service, or by other proof satisfactory to the
Commission. Failure to make proof of service will not affect the validity of
the service. The Commission may allow the proof to be amended or supplied at
any time, unless to do so would result in material prejudice to a party.
(h) Every common carrier and interconnected VoIP provider, as defined in
§54.5 of this chapter, that is subject to the Communications Act of 1934, as
amended, shall designate an agent in the District of Columbia, and may
designate additional agents if it so chooses, upon whom service of all
notices, process, orders, decisions, and requirements of the Commission may
be made for and on behalf of such carrier or interconnected VoIP provider in
any proceeding before the Commission. Such designation shall include, for
both the carrier or interconnected VoIP provider and its designated agents,
a name, business address, telephone or voicemail number, facsimile number,
and, if available, Internet e-mail address. Such carrier or interconnected
VoIP provider shall additionally list any other names by which it is known
or under which it does business, and, if the carrier or interconnected VoIP
provider is an affiliated company, the parent, holding, or management
company. Within thirty (30) days of the commencement of provision of
service, such carrier or interconnected VoIP provider shall file such
information with the Chief of the Enforcement Bureau's Market Disputes
Resolution Division. Such carriers and interconnected VoIP providers may
file a hard copy of the relevant portion of the Telecommunications Reporting
Worksheet, as delineated by the Commission in theFederal Register,to satisfy
this requirement. Each Telecommunications Reporting Worksheet filed annually
by a common carrier or interconnected VoIP provider must contain a name,
business address, telephone or voicemail number, facsimile number, and, if
available, Internet e-mail address for its designated agents, regardless of
whether such information has been revised since the previous filing.
Carriers and interconnected VoIP providers must notify the Commission within
one week of any changes in their designation information by filing revised
portions of the Telecommunications Reporting Worksheet with the Chief of the
Enforcement Bureau's Market Disputes Resolution Division. A paper copy of
this designation list shall be maintained in the Office of the Secretary of
the Commission. Service of any notice, process, orders, decisions or
requirements of the Commission may be made upon such carrier or
interconnected VoIP provider by leaving a copy thereof with such designated
agent at his office or usual place of residence. If such carrier or
interconnected VoIP provider fails to designate such an agent, service of
any notice or other process in any proceeding before the Commission, or of
any order, decision, or requirement of the Commission, may be made by
posting such notice, process, order, requirement, or decision in the Office
of the Secretary of the Commission.
[ 28 FR 12415 , Nov. 22, 1963, as amended at 40 FR 55644 , Dec. 1, 1975; 53 FR 11852 , Apr. 11, 1988; 63 FR 1035 , Jan. 7, 1998; 63 FR 24124 , May 1, 1998; 64 FR 41330 , July 30, 1999; 64 FR 60725 , Nov. 8, 1999; 71 FR 38796 , July 10,
2006]
Effective Date Note: At 71 FR 38796 , July 10, 2006, §1.47(h) was amended.
This section contains information collection and recordkeeping requirements
and will not become effective until approval has been given by the Office of
Management and Budget.
§ 1.48 Length of pleadings.
top
(a) Affidavits, statements, tables of contents and summaries of filings, and
other materials which are submitted with and factually support a pleading
are not counted in determining the length of the pleading. If other
materials are submitted with a pleading, they will be counted in determining
its length; and if the length of the pleadings, as so computed, is greater
than permitted by the provisions of this chapter, the pleading will be
returned without consideration.
(b) It is the policy of the Commission that requests for permission to file
pleadings in excess of the length prescribed by the provisions of this
chapter shall not be routinely granted. Where the filing period is 10 days
or less, the request shall be made within 2 business days after the period
begins to run. Where the period is more than 10 days, the request shall be
filed at least 10 days before the filing date. (See §1.4.) If a timely
request is made, the pleading need not be filed earlier than 2 business days
after the Commission acts upon the request.
[ 41 FR 14871 , Apr. 8, 1976, and 49 FR 40169 , Oct. 15, 1984]
§ 1.49 Specifications as to pleadings and documents.
top
(a) All pleadings and documents filed in paper form in any Commission
proceeding shall be typewritten or prepared by mechanical processing
methods, and shall be filed on A4 (21 cm. × 29.7 cm.) or on 81/2× 11 inch
(21.6 cm. × 27.9 cm.) paper with the margins set so that the printed
material does not exceed 61/2× 91/2inches (16.5 cm. × 24.1 cm.). The printed
material may be in any typeface of at least 12-point (0.42333 cm.
or12/72&inch;) in height. The body of the text must be double spaced with a
minimum distance of7/32of an inch (0.5556 cm.) between each line of text.
Footnotes and long, indented quotations may be single spaced, but must be in
type that is 12-point or larger in height, with at least1/16of an inch
(0.158 cm.) between each line of text. Counsel are cautioned against
employing extended single spaced passages or excessive footnotes to evade
prescribed pleading lengths. If single-spaced passages or footnotes are used
in this manner the pleading will, at the discretion of the Commission,
either be rejected as unacceptable for filing or dismissed with leave to be
refiled in proper form. Pleadings may be printed on both sides of the paper.
Pleadings that use only one side of the paper shall be stapled, or otherwise
bound, in the upper left-hand corner; those using both sides of the paper
shall be stapled twice, or otherwise bound, along the left-hand margin so
that it opens like a book. The foregoing shall not apply to printed briefs
specifically requested by the Commission, official publications, charted or
maps, original documents (or admissible copies thereof) offered as exhibits,
specially prepared exhibits, or if otherwise specifically provided. All
copies shall be clearly legible.
(b) Except as provided in paragraph (d) of this section, all pleadings and
documents filed with the Commission, the length of which as computed under
this chapter exceeds ten pages, shall include, as part of the pleading or
document, a table of contents with page references.
(c) Except as provided in paragraph (d) of this section, all pleadings and
documents filed with the Commission, the length of which filings as computed
under this chapter exceeds ten pages, shall include, as part of the pleading
or document, a summary of the filing, suitably paragraphed, which should be
a succinct, but accurate and clear condensation of the substance of the
filing. It should not be a mere repetition of the headings under which the
filing is arranged. For pleadings and documents exceeding ten but not
twenty-five pages in length, the summary should seldom exceed one and never
two pages; for pleadings and documents exceeding twenty-five pages in
length, the summary should seldom exceed two and never five pages.
(d) The requirements of paragraphs (b) and (c) of this section shall not
apply to:
(1) Interrogatories or answers to interrogatories, and depositions;
(2) FCC forms or applications;
(3) Transcripts;
(4) Contracts and reports;
(5) Letters; or
(6) Hearing exhibits, and exhibits or appendicies accompanying any document
or pleading submitted to the Commission.
(e) Petitions, pleadings, and other documents associated with licensing
matters in the Wireless Radio Services may be filed electronically in ULS.
See §22.6 for specifications.
(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, may be filed in electronic format:
(i) General rulemaking proceedings other than broadcast allotment
proceedings;
(ii) Notice of inquiry proceedings; and
(iii) Petition for rulemaking proceedings (except broadcast allotment
proceedings).
(2) 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.
Note: The table of contents and the summary pages shall not be included in
complying with any page limitation requirements as set forth by Commission
rule.
[ 40 FR 19198 , May 2, 1975, as amended at 47 FR 26393 , June 18, 1982; 51 FR 16322 , May 2, 1986; 54 FR 31032 , July 26, 1989; 58 FR 44893 , Aug. 25, 1993;
59 FR 37721 , July 25, 1994; 63 FR 24125 , May 1, 1998; 63 FR 68920 , Dec. 14,
1998]
§ 1.50 Specifications as to briefs.
top
The Commission's preference is for briefs that are either typewritten,
prepared by other mechanical processing methods, or, in the case of matters
in the Wireless Radio Services, composed electronically and sent via ULS.
Printed briefs will be accepted only if specifically requested by the
Commission. Typewritten, mechanically produced, or electronically
transmitted briefs must conform to all of the applicable specifications for
pleadings and documents set forth in §1.49.
[ 63 FR 68920 , Dec. 14, 1998]
§ 1.51 Number of copies of pleadings, briefs and other papers.
top
Except as otherwise specifically provided in the Commission's rules and
regulations, the number of copies of pleadings, briefs, and other papers to
be filed is as follows:
(a) In hearing proceedings, the following number of copies shall be filed:
(1) If the paper filed relates to a matter to be acted upon by the presiding
officer or the Chief Administrative Law Judge, an original and 6 copies
shall be filed.
(2) If the paper filed relates to matters to be acted on by the Commission,
an original and 14 copies shall be filed.
(3) If more than one person presided (is presiding) at the hearing an
additional copy shall be filed for each such additional person.
(b) In rulemaking proceedings which have not been designated for hearing,
see section 1.419 of this chapter.
(c) In matters other than rule making and hearing cases, the following
number of copies shall be filed:
(1) If the paper filed relates to matters to be acted on by the Commission,
an original and 4 copies shall be filed. If the matter relates to Part 22 of
the rules, see §22.6.
(2) If the paper filed related to matters to be acted on by staff officials
under delegated authority, an original and 4 copies shall be filed. If the
matter relates to Part 22 of the rules, see §22.6.
(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 §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.
(Secs. 4, 303, 48 Stat., as amended, 1066, 1082; (47 U.S.C. 154, 303))
[ 40 FR 48136 , Oct. 14, 1975, as amended at 41 FR 50399 , Nov. 16, 1976; 45 FR 64190 , Sept. 29, 1980; 45 FR 79486 , Dec. 1, 1980; 50 FR 26567 , June 27,
1985; 54 FR 29037 , July 11, 1989; 54 FR 31032 , July 26, 1989; 62 FR 4170 ,
Jan. 29, 1997; 63 FR 24125 , May 1, 1998; 63 FR 68920 , Dec. 14, 1998]
§ 1.52 Subscription and verification.
top
The original of all petitions, motions, pleadings, briefs, and other
documents filed by any party represented by counsel shall be signed by at
least one attorney of record in his individual name, whose address shall be
stated. A party who is not represented by an attorney shall sign and verify
the document and state his address. Either the original document, the
electronic reproduction of such original document containing the facsimile
signature of the attorney or represented party, or, in the case of matters
in the Wireless Radio Services, an electronic filing via ULS is acceptable
for filing. If a facsimile or electronic reproduction of such original
document is filed, the signatory shall retain the original until the
Commission's decision is final and no longer subject to judicial review. If
pursuant to §1.429(h) a document is filed electronically, a signature will
be considered any symbol executed or adopted by the party with the intent
that such symbol be a signature, including symbols formed by
computer-generated electronic impulses. Except when otherwise specifically
provided by rule or statute, documents signed by the attorney for a party
need not be verified or accompanied by affidavit. The signature or
electronic reproduction thereof by an attorney constitutes a certificate by
him that he has read the document; that to the best of his knowledge,
information, and belief there is good ground to support it; and that it is
not interposed for delay. If the original of a document is not signed or is
signed with intent to defeat the purpose of this section, or an electronic
reproduction does not contain a facsimile signature, it may be stricken as
sham and false, and the matter may proceed as though the document had not
been filed. An attorney may be subjected to appropriate disciplinary action,
pursuant to §1.24, for a willful violation of this section or if scandalous
or indecent matter is inserted.
[ 63 FR 24125 , May 1, 1998, as amended at 63 FR 68920 , Dec. 14, 1998]
§ 1.53 Separate pleadings for petitions for forbearance.
top
In order to be considered as a petition for forbearance subject to the
one-year deadline set forth in 47 U.S.C. 160(c), any petition requesting
that the Commission exercise its forbearance authority under 47 U.S.C. 160
shall be filed as a separate pleading and shall be identified in the caption
of such pleading as a petition for forbearance under 47 U.S.C. 160(c). Any
request which is not in compliance with this rule is deemed not to
constitute a petition pursuant to 47 U.S.C. 160(c), and is not subject to
the deadline set forth therein.
[ 65 FR 7460 , Feb. 15, 2000]
General Application Procedures
top
§ 1.61 Procedures for handling applications requiring special aeronautical
study.
top
(a) Antenna Structure Registration is conducted by the Wireless
Telecommunications Bureau as follows:
(1) Each antenna structure owner that must notify the FAA of proposed
construction using FAA Form 7460–1 shall, upon proposing new or modified
construction, register that antenna structure with the Wireless
Telecommunications Bureau using FCC Form 854.
(2) If an Environmental Assessment is required under §1.1307, the Bureau
will address the environmental concerns prior to processing the
registration.
(3) If a final FAA determination of “no hazard” is not submitted along with
FCC Form 854, processing of the registration may be delayed or disapproved.
(4) If the owner of the antenna structure cannot file FCC Form 854 because
it is subject to a denial of Federal benefits under the Anti-Drug Abuse Act
of 1988, 21 U.S.C. 862, the first licensee authorized to locate on the
structure must register the structure using FCC Form 854, and provide a copy
of the Antenna Structure Registration (FCC Form 854R) to the owner. The
owner remains responsible for providing a copy of FCC Form 854R to all
tenant licensees on the structure and for posting the registration number as
required by §17.4(g) of this chapter.
(5) Upon receipt of FCC Form 854, and attached final FAA determination of
“no hazard,” the Bureau prescribes antenna structure painting and/or
lighting specifications or other conditions in accordance with the FAA
airspace recommendation and returns a completed Antenna Structure
Registration (FCC Form 854R) to the registrant. If the proposed structure is
disapproved the registrant is so advised.
(b) Each operating Bureau or Office examines the applications for Commission
authorization for which it is responsible to ensure compliance with FAA
notification procedures as well as Commission Antenna Structure Registration
as follows:
(1) If Antenna Structure Registration is required, the operating Bureau
reviews the application for the Antenna Structure Registration Number and
proceeds as follows:
(i) If the application contains the Antenna Structure Registration Number or
if the applicant seeks a Cellular or PCS system authorization, the operating
Bureau processes the application.
(ii) If the application does not contain the Antenna Structure Registration
Number, but the structure owner has already filed FCC Form 854, the
operating Bureau places the application on hold until Registration can be
confirmed, so long as the owner exhibits due diligence in filing.
(iii) If the application does not contain the Antenna Structure Registration
Number, and the structure owner has not filed FCC Form 854, the operating
Bureau notifies the applicant that FCC Form 854 must be filed and places the
application on hold until Registration can be confirmed, so long as the
owner exhibits due diligence in filing.
(2) If Antenna Structure Registration is not required, the operating Bureau
processes the application.
(c) Where one or more antenna farm areas have been designated for a
community or communities (see §17.9 of this chapter), an application
proposing the erection of an antenna structure over 1,000 feet in height
above ground to serve such community or communities will not be accepted for
filing unless:
(1) It is proposed to locate the antenna structure in a designated antenna
farm area, or
(2) It is accompanied by a statement from the Federal Aviation
Administration that the proposed structure will not constitute a menace to
air navigation, or
(3) It is accompanied by a request for waiver setting forth reasons
sufficient, if true, to justify such a waiver.
Note: By Commission Order (FCC 65–455), 30 FR 7419 , June 5, 1965, the
Commission issued the following policy statement concerning the height of
radio and television antenna towers:
“We have concluded that this objective can best be achieved by adopting the
following policy: Applications for antenna towers higher than 2,000 feet
above ground will be presumed to be inconsistent with the public interest,
and the applicant will have a burden of overcoming that strong presumption.
The applicant must accompany its application with a detailed showing
directed to meeting this burden. Only in the exceptional case, where the
Commission concludes that a clear and compelling showing has been made that
there are public interest reasons requiring a tower higher than 2,000 feet
above ground, and after the parties have complied with applicable FAA
procedures, and full Commission coordination with FAA on the question of
menace to air navigation, will a grant be made. Applicants and parties in
interest will, of course, be afforded their statutory hearing rights.”
[ 28 FR 12415 , Nov. 22, 1963, as amended at 32 FR 8813 , June 21, 1967; 32 FR 20860 , Dec. 28, 1967; 34 FR 6481 , Apr. 15, 1969; 45 FR 55201 , Aug. 19, 1980;
58 FR 13021 , Mar. 9, 1993, 61 FR 4361 , Feb. 6, 1996]
§ 1.62 Operation pending action on renewal application.
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(a)(1) Where there is pending before the Commission at the time of
expiration of license any proper and timely application for renewal of
license with respect to any activity of a continuing nature, in accordance
with the provisions of section 9(b) of the Administrative Procedure Act,
such license shall continue in effect without further action by the
Commission until such time as the Commission shall make a final
determination with respect to the renewal application. No operation by any
licensee under this section shall be construed as a finding by the
Commission that the operation will serve the public interest, convenience,
or necessity, nor shall such operation in any way affect or limit the action
of the Commission with respect to any pending application or proceeding.
(2) A licensee operating by virtue of this paragraph shall, after the date
of expiration specified in the license, post, in addition to the original
license, any acknowledgment received from the Commission that the renewal
application has been accepted for filing or a signed copy of the application
for renewal of license which has been submitted by the licensee, or in
services other than broadcast and common carrier, a statement certifying
that the licensee has mailed or filed a renewal application, specifying the
date of mailing or filing.
(b) Where there is pending before the Commission at the time of expiration
of license any proper and timely application for renewal or extension of the
term of a license with respect to any activity not of a continuing nature,
the Commission may in its discretion grant a temporary extension of such
license pending determination of such application. No such temporary
extension shall be construed as a finding by the Commission that the
operation of any radio station thereunder will serve the public interest,
convenience, or necessity beyond the express terms of such temporary
extension of license, nor shall such temporary extension in any way affect
or limit the action of the Commission with respect to any pending
application or proceeding.
(c) Except where an instrument of authorization clearly states on its face
that it relates to an activity not of a continuing nature, or where the
non-continuing nature is otherwise clearly apparent upon the face of the
authorization, all licenses issued by the Commission shall be deemed to be
related to an activity of a continuing nature.
(5 U.S.C. 558)
§ 1.65 Substantial and significant changes in information furnished by
applicants to the Commission.
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(a) Each applicant is responsible for the continuing accuracy and
completeness of information furnished in a pending application or in
Commission proceedings involving a pending application. Whenever the
information furnished in the pending application is no longer substantially
accurate and complete in all significant respects, the applicant shall as
promptly as possible and in any event within 30 days, unless good cause is
shown, amend or request the amendment of his application so as to furnish
such additional or corrected information as may be appropriate. Whenever
there has been a substantial change as to any other matter which may be of
decisional significance in a Commission proceeding involving the pending
application, the applicant shall as promptly as possible and in any event
within 30 days, unless good cause is shown, submit a statement furnishing
such additional or corrected information as may be appropriate, which shall
be served upon parties of record in accordance with §1.47. Where the matter
is before any court for review, statements and requests to amend shall in
addition be served upon the Commission's General Counsel. For the purposes
of this section, an application is “pending” before the Commission from the
time it is accepted for filing by the Commission until a Commission grant or
denial of the application is no longer subject to reconsideration by the
Commission or to review by any court.
(b) Applications in broadcast services subject to competitive bidding will
be subject to the provisions of §§1.2105(b), 73.5002 and 73.3522 of this
chapter regarding the modification of their applications.
(c) All broadcast permittees and licensees must report annually to the
Commission any adverse finding or adverse final action taken by any court or
administrative body that involves conduct bearing on the permittee's or
licensee's character qualifications and that would be reportable in
connection with an application for renewal as reflected in the renewal form.
If a report is required by this paragraph(s), it shall be filed on the
anniversary of the date that the licensee's renewal application is required
to be filed, except that licensees owning multiple stations with different
anniversary dates need file only one report per year on the anniversary of
their choice, provided that their reports are not more than one year apart.
Permittees and licensees bear the obligation to make diligent, good faith
efforts to become knowledgeable of any such reportable adjudicated
misconduct.
Note: The terms adverse finding and adverse final action as used in
paragraph (c) of this section include adjudications made by an ultimate
trier of fact, whether a government agency or court, but do not include
factual determinations which are subject to review de novo unless the time
for taking such review has expired under the relevant procedural rules. The
pendency of an appeal of an adverse finding or adverse final action does not
relieve a permittee or licensee from its obligation to report the finding or
action.
[ 48 FR 27200 , June 13, 1983, as amended at 55 FR 23084 , June 6, 1990; 56 FR 25635 , June 5, 1991; 56 FR 44009 , Sept. 6, 1991; 57 FR 47412 , Oct. 16, 1992;
63 FR 48622 , Sept. 11, 1998; 69 FR 72026 , Dec. 10, 2004]
§ 1.68 Action on application for license to cover construction permit.
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(a) An application for license by the lawful holder of a construction permit
will be granted without hearing where the Commission, upon examination of
such application, finds that all the terms, conditions, and obligations set
forth in the application and permit have been fully met, and that no cause
or circumstance arising or first coming to the knowledge of the Commission
since the granting of the permit would, in the judgment of the Commission,
make the operation of such station against the public interest.
(b) In the event the Commission is unable to make the findings in paragraph
(a) of this section, the Commission will designate the application for
hearing upon specified issues.
(Sec. 319, 48 Stat. 1089, as amended; 47 U.S.C. 319)
§ 1.77 Detailed application procedures; cross references.
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The application procedures set forth in §§1.61 through 1.68 are general in
nature. Applicants should also refer to the Commission rules regarding the
payment of statutory charges (subpart G of this part) and the use of the FCC
Registration Number (FRN) (see subpart W of this part). More detailed
procedures are set forth in this chapter as follows:
(a) Rules governing applications for authorizations in the Broadcast Radio
Services are set forth in subpart D of this part.
(b) Rules governing applications for authorizations in the Common Carrier
Radio Services are set forth in subpart E of this part.
(c) Rules governing applications for authorizations in the Private Radio
Services are set forth in subpart F of this part.
(d) Rules governing applications for authorizations in the Experimental
Radio Services (other than broadcast) are set forth in part 5 of this
chapter.
(e) Rules governing applications for authorizations in the Domestic Public
Radio Services are set forth in part 21 of this chapter.
(f) Rules governing applications for authorizations in the Industrial,
Scientific, and Medical Service are set forth in part 18 of this chapter.
(g) Rules governing applications for certification of equipment are set
forth in part 2, subpart J, of this chapter.
(h) Rules governing applications for commercial radio operator licenses are
set forth in part 13 of this chapter.
(i) Rules governing applications for authorizations in the Common Carrier
and Private Radio terrestrial microwave services and Local Multipoint
Distribution Services are set out in part 101 of this chapter.
[ 28 FR 12415 , Nov. 22, 1963, as amended at 44 FR 39180 , July 5, 1979; 47 FR 53378 , Nov. 26, 1982; 61 FR 26670 , May 28, 1996; 62 FR 23162 , Apr. 29, 1997;
63 FR 36596 , July 7, 1998; 66 FR 47895 , Sept. 14, 2001]
Miscellaneous Proceedings
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§ 1.80 Forfeiture proceedings.
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(a) Persons against whom and violations for which a forfeiture may be
assessed. A forfeiture penalty may be assessed against any person found to
have:
(1) Willfully or repeatedly failed to comply substantially with the terms
and conditions of any license, permit, certificate, or other instrument of
authorization issued by the Commission;
(2) Willfully or repeatedly failed to comply with any of the provisions of
the Communications Act of 1934, as amended; or of any rule, regulation or
order issued by the Commission under that Act or under any treaty,
convention, or other agreement to which the United States is a party and
which is binding on the United States;
(3) Violated any provision of section 317(c) or 508(a) of the Communications
Act; or
(4) Violated any provision of section 1304, 1343, or 1464 of Title 18,
United States Code.
A forfeiture penalty assessed under this section is in addition to any other
penalty provided for by the Communications Act, except that the penalties
provided for in paragraphs (b)(1), (b)(2) and (b)(3) of this section shall
not apply to conduct which is subject to a forfeiture penalty under sections
202(c), 203(e), 205(b), 214(d), 219(b), 220(d), 223(b), 362(a), 362(b),
386(a), 386(b), 503(b), 506, and 634 of the Communications Act. The
remaining provisions of this section are applicable to such conduct.
(b) Limits on the amount of forfeiture assessed. (1) If the violator is a
broadcast station licensee or permittee, a cable television operator, or an
applicant for any broadcast or cable television operator license, permit,
certificate, or other instrument of authorization issued by the Commission,
except as otherwise noted in this paragraph, the forfeiture penalty under
this section shall not exceed $32,500 for each violation or each day of a
continuing violation, except that the amount assessed for any continuing
violation shall not exceed a total of $325,000 for any single act or failure
to act described in paragraph (a) of this section. There is no limit on
forfeiture assessments for EEO violations by cable operators that occur
after notification by the Commission of a potential violation. See section
634(f)(2) of the Communications Act. Notwithstanding the foregoing in this
section, if the violator is a broadcast station licensee or permittee or an
applicant for any broadcast license, permit, certificate, or other
instrument of authorization issued by the Commission, and if the violator is
determined by the Commission to have broadcast obscene, indecent, or profane
material, the forfeiture penalty under this section shall not exceed
$325,000 for each violation or each day of a continuing violation, except
that the amount assessed for any continuing violation shall not exceed a
total of $3,000,000 for any single act or failure to act described in
paragraph (a) of this section.
(2) If the violator is a common carrier subject to the provisions of the
Communications Act or an applicant for any common carrier license, permit,
certificate, or other instrument of authorization issued by the Commission,
the amount of any forfeiture penalty determined under this section shall not
exceed $130,000 for each violation or each day of a continuing violation,
except that the amount assessed for any continuing violation shall not
exceed a total of $1,325,000 for any single act or failure to act described
in paragraph (a) of this section.
(3) In any case not covered in paragraphs (b)(1) or (b)(2) of this section,
the amount of any forfeiture penalty determined under this section shall not
exceed $11,000 for each violation or each day of a continuing violation,
except that the amount assessed for any continuing violation shall not
exceed a total of $97,500 for any single act or failure to act described in
paragraph (a) of this section.
(4) Factors considered in determining the amount of the forfeiture penalty.
In determining the amount of the forfeiture penalty, the Commission or its
designee will take into account the nature, circumstances, extent and
gravity of the violations and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and such other
matters as justice may require.
Note to paragraph(b)(4):
Guidelines for Assessing Forfeitures
The Commission and its staff may use these guidelines in particular cases.
The Commission and its staff retain the discretion to issue a higher or
lower forfeiture than provided in the guidelines, to issue no forfeiture at
all, or to apply alternative or additional sanctions as permitted by the
statute. The forfeiture ceiling per violation or per day for a continuing
violation stated in section 503 of the Communications Act and the
Commission's rules are described in §1.80(b)(5)(iii). These statutory maxima
became effective September 7, 2004. Forfeitures issued under other sections
of the Act are dealt with separately in section III of this note.
Section I. Base Amounts for Section 503 Forfeitures
Forfeitures Violation Amount
Misrepresentation/lack of candor (^1)
Construction and/or operation without an instrument of authorization for the
service $10,000
Failure to comply with prescribed lighting and/or marking 10,000
Violation of public file rules 10,000
Violation of political rules: reasonable access, lowest unit charge, equal
opportunity, and discrimination 9,000
Unauthorized substantial transfer of control 8,000
Violation of children's television commercialization or programming
requirements 8,000
Violations of rules relating to distress and safety frequencies 8,000
False distress communications 8,000
EAS equipment not installed or operational 8,000
Alien ownership violation 8,000
Failure to permit inspection 7,000
Transmission of indecent/obscene materials 7,000
Interference 7,000
Importation or marketing of unauthorized equipment 7,000
Exceeding of authorized antenna height 5,000
Fraud by wire, radio or television 5,000
Unauthorized discontinuance of service 5,000
Use of unauthorized equipment 5,000
Exceeding power limits 4,000
Failure to respond to Commission communications 4,000
Violation of sponsorship ID requirements 4,000
Unauthorized emissions 4,000
Using unauthorized frequency 4,000
Failure to engage in required frequency coordination 4,000
Construction or operation at unauthorized location 4,000
Violation of requirements pertaining to broadcasting of lotteries or
contests 4,000
Violation of transmitter control and metering requirements 3,000
Failure to file required forms or information 3,000
Failure to make required measurements or conduct required monitoring 2,000
Failure to provide station ID 1,000
Unauthorized pro forma transfer of control 1,000
Failure to maintain required records 1,000
^1Statutory Maximum for each Service.
Violations Unique to the Service
Violation Services affected Amount
Unauthorized conversion of long distance telephone service Common Carrier
$40,000
Violation of operator services requirements Common Carrier 7,000
Violation of pay-per-call requirements Common Carrier 7,000
Failure to implement rate reduction or refund order Cable 7,500
Violation of cable program access rules Cable 7,500
Violation of cable leased access rules Cable 7,500
Violation of cable cross-ownership rules Cable 7,500
Violation of cable broadcast carriage rules Cable 7,500
Violation of pole attachment rules Cable 7,500
Failure to maintain directional pattern within prescribed parameters
Broadcast 7,000
Violation of main studio rule Broadcast 7,000
Violation of broadcast hoax rule Broadcast 7,000
AM tower fencing Broadcast 7,000
Broadcasting telephone conversations without authorization Broadcast 4,000
Violation of enhanced underwriting requirements Broadcast 2,000
Section II. Adjustment Criteria for Section 503 Forfeitures
Upward Adjustment Criteria
(1) Egregious misconduct.
(2) Ability to pay/relative disincentive.
(3) Intentional violation.
(4) Substantial harm.
(5) Prior violations of any FCC requirements.
(6) Substantial economic gain.
(7) Repeated or continuous violation.
Downward Adjustment Criteria
(1) Minor violation.
(2) Good faith or voluntary disclosure.
(3) History of overall compliance.
(4) Inability to pay.
Section III. Non-Section 503 Forfeitures That Are Affected by the Downward
Adjustment Factors
Unlike section 503 of the Act, which establishes maximum forfeiture amounts,
other sections of the Act, with one exception, state prescribed amounts of
forfeitures for violations of the relevant section. These amounts are then
subject to mitigation or remission under section 504 of the Act. The one
exception is section 223 of the Act, which provides a maximum forfeiture per
day. For convenience, the Commission will treat this amount as if it were a
prescribed base amount, subject to downward adjustments. The following
amounts are adjusted for inflation pursuant to the Debt Collection
Improvement Act of 1996 (DCIA), 28 U.S.C. 2461. These non-section 503
forfeitures may be adjusted downward using the “Downward Adjustment
Criteria” shown for section 503 forfeitures in section II of this note.
Violation Statutory amount ($)
Sec. 202(c) Common Carrier Discrimination $8,600 430/day.
Sec. 203(e) Common Carrier Tariffs 8,600 430/day.
Sec. 205(b) Common Carrier Prescriptions 18,200.
Sec. 214(d) Common Carrier Line Extensions 1,320/day.
Sec. 219(b) Common Carrier Reports 1,320.
Sec. 220(d) Common Carrier Records & Accounts 8,600/day.
Sec. 364(a) Forfeitures (Ships) 6,500 (owner).
Sec. 364(b) Forfeitures (Ships) 1,100 (vessel master).
Sec. 386(a) Forfeitures (Ships) 6,500/day (owner).
Sec. 386(b) Forfeitures (Ships) 1,100 (vessel master).
Sec. 634 Cable EEO 550/day.
(5) Inflation adjustments to the maximum forfeiture amount. (i) Pursuant to
the Debt Collection Improvement Act of 1996, Public Law 104–134 (110 Stat.
1321–358), which amends the Federal Civil Monetary Penalty Inflation
Adjustment Act of 1990, Public Law 101–410 (104 Stat. 890; 28 U.S.C. 2461
note), the statutory maximum amount of a forfeiture penalty assessed under
this section shall be adjusted for inflation at least once every four years
using the method specified in the statute. This is to be done by determining
the ‘cost-of-living adjustment’, which is the percentage (if any) by which
the CPI for June of the preceding year exceeds the CPI for June of the year
the forfeiture amount was last set or adjusted. The inflation adjustment is
determined by multiplying the cost-of-living adjustment by the statutory
maximum amount. Round off this result using the rules in paragraph
(b)(5)(ii) of this section. Add the rounded result to the statutory maximum
forfeiture penalty amount. The sum is the statutory maximum amount, adjusted
for inflation.
(ii) The rounding rules are as follows:
(A) Round increase to the nearest multiple of $10 if the penalty is from $0
to $100;
(B) Round increase to the nearest multiple of $100 if the penalty is from
$101 to $1,000;
(C) Round increase to the nearest multiple of $1,000 if the penalty is from
$1,001 to $10,000;
(D) Round increase to the nearest multiple of $5,000 if the penalty is from
$10,001 to $100,000;
(E) Round increase to the nearest multiple of $10,000 if the penalty is from
$100,001 to $200,000; or
(F) Round increase to the nearest multiple of $25,000 if the penalty is over
$200,001.
(iii) The application of the inflation adjustments required by the DCIA, 28
U.S.C. 2461, results in the following adjusted statutory maximum forfeitures
authorized by the Communications Act:
U.S. Code citation Maximum penalty after DCIA adjustment ($)
47 U.S.C. 202(c) $8,600
430
47 U.S.C. 203(e) 8,600
430
47 U.S.C. 205(b) 18,200
47 U.S.C. 214(d) 1,320
47 U.S.C 219(b) 1,320
47 U.S.C. 220(d) 8,600
47 U.S.C. 362(a) 6,500
47 U.S.C. 362(b) 1,100
47 U.S.C. 386(a) 6,500
47 U.S.C. 386(b) 1,100
47 U.S.C. 503(b)(2)(A) 32,500
325,000
47 U.S.C. 503(b)(2)(B) 130,000
1,325,000
47 U.S.C. 503(b)(2)(C) 11,000
97,500
47 U.S.C. 507(a) 650
47 U.S.C. 507(b) 10
47 U.S.C. 554 550
Note to paragraph(b)(5): Pursuant to Public Law 104–134, the first inflation
adjustment cannot exceed 10 percent of the statutory maximum amount.
(c) Limits on the time when a proceeding may be initiated. (1) In the case
of a broadcast station, no forfeiture penalty shall be imposed if the
violation occurred more than 1 year prior to the issuance of the appropriate
notice or prior to the date of commencement of the current license term,
whichever is earlier. For purposes of this paragraph, “date of commencement
of the current license term” means the date of commencement of the last term
of license for which the licensee has been granted a license by the
Commission. A separate license term shall not be deemed to have commenced as
a result of continuing a license in effect under section 307(c) pending
decision on an application for renewal of the license.
(2) In the case of a forfeiture imposed against a carrier under sections
202(c), 203(e), and 220(d), no forfeiture will be imposed if the violation
occurred more than 5 years prior to the issuance of a notice of apparent
liability.
(3) In all other cases, no penalty shall be imposed if the violation
occurred more than 1 year prior to the date on which the appropriate notice
is issued.
(d) Preliminary procedure in some cases; citations. No forfeiture penalty
shall be imposed upon any person under this section, if such person does not
hold a license, permit, certificate, or other authorization issued by the
Commission, and if such person is not an applicant for a license, permit,
certificate, or other authorization issued by the Commission, unless, prior
to the issuance of the appropriate notice, such person: (1) Is sent a
citation reciting the violation charged; (2) is given a reasonable
opportunity (usually 30 days) to request a personal interview with a
Commission official, at the field office which is nearest to such person's
place of residence; and (3) subsequently engages in conduct of the type
described in the citation. However, a forfeiture penalty may be imposed, if
such person is engaged in (and the violation relates to) activities for
which a license, permit, certificate, or other authorization is required or
if such person is a cable television operator, or in the case of violations
of section 303(q), if the person involved is a nonlicensee tower owner who
has previously received notice of the obligations imposed by section 303(q)
from the Commission or the permittee or licensee who uses that tower.
Paragraph (c) of this section does not limit the issuance of citations. When
the requirements of this paragraph have been satisfied with respect to a
particular violation by a particular person, a forfeiture penalty may be
imposed upon such person for conduct of the type described in the citation
without issuance of an additional citation.
(e) Alternative procedures. In the discretion of the Commission, a
forfeiture proceeding may be initiated either: (1) By issuing a notice of
apparent liability, in accordance with paragraph (f) of this section, or (2)
a notice of opportunity for hearing, in accordance with paragraph (g).
(f) Notice of apparent liability. Before imposing a forfeiture penalty under
the provisions of this paragraph, the Commission or its designee will issue
a written notice of apparent liability.
(1) Content of notice. The notice of apparent liability will:
(i) Identify each specific provision, term, or condition of any act, rule,
regulation, order, treaty, convention, or other agreement, license, permit,
certificate, or instrument of authorization which the respondent has
apparently violated or with which he has failed to comply,
(ii) Set forth the nature of the act or omission charged against the
respondent and the facts upon which such charge is based,
(iii) State the date(s) on which such conduct occurred, and
(iv) Specify the amount of the apparent forfeiture penalty.
(2) Delivery. The notice of apparent liability will be sent to the
respondent, by certified mail, at his last known address (see §1.5).
(3) Response. The respondent will be afforded a reasonable period of time
(usually 30 days from the date of the notice) to show, in writing, why a
forfeiture penalty should not be imposed or should be reduced, or to pay the
forfeiture. Any showing as to why the forfeiture should not be imposed or
should be reduced shall include a detailed factual statement and such
documentation and affidavits as may be pertinent.
(4) Forfeiture order. If the proposed forfeiture penalty is not paid in full
in response to the notice of apparent liability, the Commission, upon
considering all relevant information available to it, will issue an order
canceling or reducing the proposed forfeiture or requiring that it be paid
in full and stating the date by which the forfeiture must be paid.
(5) Judicial enforcement of forfeiture order. If the forfeiture is not paid,
the case will be referred to the Department of Justice for collection under
section 504(a) of the Communications Act.
(g) Notice of opportunity for hearing. The procedures set out in this
paragraph will ordinarily be followed only when a hearing is being held for
some reason other than the assessment of a forfeiture (such as, to determine
whether a renewal application should be granted) and a forfeiture is to be
considered as an alternative or in addition to any other Commission action.
However, these procedures may be followed whenever the Commission, in its
discretion, determines that they will better serve the ends of justice.
(1) Before imposing a forfeiture penalty under the provisions of this
paragraph, the Commission will issue a notice of opportunity for hearing.
The hearing will be a full evidentiary hearing before an administrative law
judge, conducted under procedures set out in subpart B of this part,
including procedures for appeal and review of initial decisions. A final
Commission order assessing a forfeiture under the provisions of this
paragraph is subject to judicial review under section 402(a) of the
Communications Act.
(2) If, after a forfeiture penalty is imposed and not appealed or after a
court enters final judgment in favor of the Commission, the forfeiture is
not paid, the Commission will refer the matter to the Department of Justice
for collection. In an action to recover the forfeiture, the validity and
appropriateness of the order imposing the forfeiture are not subject to
review.
(3) Where the possible assessment of a forfeiture is an issue in a hearing
case to determine which pending application should be granted, and the
applicant facing a potential forfeiture is dismissed pursuant to a
settlement agreement or otherwise, and the presiding judge has not made a
determination on the forfeiture issue, the order of dismissal shall be
forwarded to the attention of the full Commission. Within the time provided
by §1.117, the Commission may, on its own motion, proceed with a
determination of whether a forfeiture against the dismissing applicant is
warranted. If the Commission so proceeds, it will provide the applicant with
a reasonable opportunity to respond to the forfeiture issue (see paragraph
(f)(3) of this section) and make a determination under the procedures
outlined in paragraph (f) of this section.
(h) Payment. The forfeiture should be paid by check or money order drawn to
the order of the Federal Communications Commission. The Commission does not
accept responsibility for cash payments sent through the mails. The check or
money order should be mailed to: Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673–7482.
(i) Remission and mitigation. In its discretion, the Commission, or its
designee, may remit or reduce any forfeiture imposed under this section.
After issuance of a forfeiture order, any request that it do so shall be
submitted as a petition for reconsideration pursuant to §1.106.
(j) Effective date. Amendments to paragraph (b) of this section implementing
Pub. L. No. 101–239 are effective December 19, 1989.
[ 43 FR 49308 , Oct. 23, 1978, as amended at 48 FR 15631 , Apr. 12, 1983; 50 FR 40855 , Oct. 7, 1985; 55 FR 25605 , June 22, 1990; 56 FR 25638 , June 5, 1991;
57 FR 23161 , June 2, 1992; 57 FR 47006 , Oct. 14, 1992; 57 FR 48333 , Oct. 23,
1992; 58 FR 6896 , Feb. 3, 1993; 58 FR 27473 , May 10, 1993; 62 FR 4918 , Feb.
3, 1997; 62 FR 43475 , Aug. 14, 1997; 63 FR 26992 , May 15, 1998; 65 FR 60868 ,
Oct. 13, 2000; 69 FR 47789 , Aug. 6, 2004; 72 FR 33914 , June 20, 2007]
§ 1.83 Applications for radio operator licenses.
top
(a) Application filing procedures for amateur radio operator licenses are
set forth in part 97 of this chapter.
(b) Application filing procedures for commercial radio operator licenses are
set forth in part 13 of this chapter. Detailed information about application
forms, filing procedures, and where to file applications for commercial
radio operator licenses is contained in the bulletin “Commercial Radio
Operator Licenses and Permits.” This bulletin is available from the
Commission's Forms Distribution Center by calling 1–800–418-FORM (3676).
[ 47 FR 53378 , Nov. 26, 1982, as amended at 58 FR 13021 , Mar. 9, 1993; 63 FR 68920 , Dec. 14, 1998]
§ 1.85 Suspension of operator licenses.
top
Whenever grounds exist for suspension of an operator license, as provided in
§303(m) of the Communications Act, the Chief of the Wireless
Telecommunications Bureau, with respect to amateur and commercial radio
operator licenses, may issue an order suspending the operator license. No
order of suspension of any operator's license shall take effect until 15
days' notice in writing of the cause for the proposed suspension has been
given to the operator licensee, who may make written application to the
Commission at any time within the said 15 days for a hearing upon such
order. The notice to the operator licensee shall not be effective until
actually received by him, and from that time he shall have 15 days in which
to mail the said application. In the event that physical conditions prevent
mailing of the application before the expiration of the 15-day period, the
application shall then be mailed as soon as possible thereafter, accompanied
by a satisfactory explanation of the delay. Upon receipt by the Commission
of such application for hearing, said order of suspension shall be
designated for hearing by the Chief, Wireless Telecommunications Bureau and
said suspension shall be held in abeyance until the conclusion of the
hearing. Upon the conclusion of said hearing, the Commission may affirm,
modify, or revoke said order of suspension. If the license is ordered
suspended, the operator shall send his operator license to the Licensing and
Technical Analysis Branch, Public Safety and Private Wireless Division,
Wireless Telecommunications Bureau, in Washington, DC, on or before the
effective date of the order, or, if the effective date has passed at the
time notice is received, the license shall be sent to the Commission
forthwith.
[ 63 FR 68920 , Dec. 14, 1998]
§ 1.87 Modification of license or construction permit on motion of the
Commission.
top
(a) Whenever it appears that a station license or construction permit should
be modified, the Commission shall notify the licensee or permittee in
writing of the proposed action and reasons therefor, and afford the licensee
or permittee at least thirty days to protest such proposed order of
modification, except that, where safety of life or property is involved, the
Commission may by order provide a shorter period of time.
(b) The notification required in paragraph (a) of this section may be
effectuated by a notice of proposed rule making in regard to a modification
or addition of an FM or television channel to the Table of Allotments
(§§73.202 and 73.504) or Table of Assignments (§73.606). The Commission
shall send a copy of any such notice of proposed rule making to the affected
licensee or permittee by certified mail, return receipt requested.
(c) Any other licensee or permittee who believes that its license or permit
would be modified by the proposed action may also protest the proposed
action before its effective date.
(d) Any protest filed pursuant to this section shall be subject to the
requirements of section 309 of the Communications Act of 1934, as amended,
for petitions to deny.
(e) In any case where a hearing is conducted pursuant to the provisions of
this section, both the burden of proceeding with the introduction of
evidence and the burden of proof shall be upon the Commission except that,
with respect to any issue that pertains to the question of whether the
proposed action would modify the license or permit of a person filing a
protest pursuant to paragraph (c) of this section, such burdens shall be as
described by the Commission.
(f) In order to utilize the right to a hearing and the opportunity to appear
and give evidence upon the issues specified in any hearing order, the
licensee or permittee, in person or by attorney, shall, within the period of
time as may be specified in the hearing order, file with the Commission a
written statement stating that he or she will appear at the hearing and
present evidence on the matters specified in the hearing order.
(g) The right to file a protest or have a hearing shall, unless good cause
is shown in a petition to be filed not later than 5 days before the lapse of
time specified in paragraph (a) or (f) of this section, be deemed waived:
(1) In case of failure to timely file the protest as required by paragraph
(a) of this section or a written statement as required by paragraph (f) of
this section.
(2) In case of filing a written statement provided for in paragraph (f) of
this section but failing to appear at the hearing, either in person or by
counsel.
(h) Where the right to file a protest or have a hearing is waived, the
licensee or permittee will be deemed to have consented to the modification
as proposed and a final decision may be issued by the Commission
accordingly. Irrespective of any waiver as provided for in paragraph (g) of
this section or failure by the licensee or permittee to raise a substantial
and material question of fact concerning the proposed modification in his
protest, the Commission may, on its own motion, designate the proposed
modification for hearing in accordance with this section.
(i) Any order of modification issued pursuant to this section shall include
a statement of the findings and the grounds and reasons therefor, shall
specify the effective date of the modification, and shall be served on the
licensee or permittee.
[ 52 FR 22654 , June 15, 1987]
§ 1.88 Predesignation pleading procedure.
top
In cases where an investigation is being conducted by the Commission in
connection with the operation of a broadcast station or a pending
application for renewal of a broadcast license, the licensee may file a
written statement to the Commission setting forth its views regarding the
matters under investigation; the staff, in its discretion, may in writing,
advise such licensee of the general nature of the investigation, and advise
the licensee of its opportunity to submit such a statement to the staff. Any
filing by the licensee will be forwarded to the Commission in conjunction
with any staff memorandum recommending that the Commission take action as a
result of the invesigation. Nothing in this rule shall supersede the
application of our ex parte rules to situations described in §1.1203 of
these rules.
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; (47 U.S.C. 154,
303, 307))
[ 45 FR 65597 , Oct. 3, 1980]
§ 1.89 Notice of violations.
top
(a) Except in cases of willfulness or those in which public health,
interest, or safety requires otherwise, any person who holds a license,
permit or other authorization appearing to have violated any provision of
the Communications Act or any provision of this chapter will, before
revocation, suspension, or cease and desist proceedings are instituted, be
served with a written notice calling these facts to his or her attention and
requesting a statement concerning the matter. FCC Form 793 may be used for
this purpose. The Notice of Violation may be combined with a Notice of
Apparent Liability to Monetary Forfeiture. In such event, notwithstanding
the Notice of Violation, the provisions of §1.80 apply and not those of
§1.89.
(b) Within 10 days from receipt of notice or such other period as may be
specified, the recipient shall send a written answer, in duplicate, directly
to the Commission office originating the official notice. If an answer
cannot be sent or an acknowledgment cannot be made within such 10-day period
by reason of illness or other unavoidable circumstance, acknowledgment and
answer shall be made at the earliest practicable date with a satisfactory
explanation of the delay.
(c) The answer to each notice shall be complete in itself and shall not be
abbreviated by reference to other communications or answers to other
notices. In every instance the answer shall contain a statement of action
taken to correct the condition or omission complained of and to preclude its
recurrence. In addition:
(1) If the notice relates to violations that may be due to the physical or
electrical characteristics of transmitting apparatus and any new apparatus
is to be installed, the answer shall state the date such apparatus was
ordered, the name of the manufacturer, and the promised date of delivery. If
the installation of such apparatus requires a construction permit, the file
number of the application shall be given, or if a file number has not been
assigned by the Commission, such identification shall be given as will
permit ready identification of the application.
(2) If the notice of violation relates to lack of attention to or improper
operation of the transmitter, the name and license number of the operator in
charge (where applicable) shall be given.
[ 48 FR 24890 , June 3, 1983]
§ 1.91 Revocation and/or cease and desist proceedings; hearings.
top
(a) If it appears that a station license or construction permit should be
revoked and/or that a cease and desist order should be issued, the
Commission will issue an order directing the person to show cause why an
order of revocation and/or a cease and desist order, as the facts may
warrant, should not be issued.
(b) An order to show cause why an order of revocation and/or a cease and
desist order should not be issued will contain a statement of the matters
with respect to which the Commission is inquiring and will call upon the
person to whom it is directed (the respondent) to appear before the
Commission at a hearing, at a time and place stated in the order, but not
less than thirty days after the receipt of such order, and given evidence
upon the matters specified in the order to show cause. However, if safety of
life or property is involved, the order to show cause may specify a hearing
date less than thirty days from the receipt of such order.
(c) To avail himself of such opportunity for hearing, the respondent,
personally or by his attorney, shall file with the Commission, within thirty
days of the service of the order or such shorter period as may be specified
therein, a written appearance stating that he will appear at the hearing and
present evidence on the matters specified in the order. The Commission in
its discretion may accept a late appearance. However, an appearance tendered
after the specified time has expired will not be accepted unless accompanied
by a petition stating with particularity the facts and reasons relied on to
justify such late filing. Such petition for acceptance of late appearance
will be granted only if the Commission determines that the facts and reasons
stated therein constitute good cause for failure to file on time.
(d) Hearings on the matters specified in such orders to show cause shall
accord with the practice and procedure prescribed in this subpart and
subpart B of this part, with the following exceptions: (1) In all such
revocation and/or cease and desist hearings, the burden of proceeding with
the introduction of evidence and the burden of proof shall be upon the
Commission; and (2) the Commission may specify in a show cause order, when
the circumstances of the proceeding require expedition, a time less than
that prescribed in §§1.276 and 1.277 within which the initial decision in
the proceeding shall become effective, exceptions to such initial decision
must be filed, parties must file requests for oral argument, and parties
must file notice of intention to participate in oral argument.
(e) Correction of or promise to correct the conditions or matters complained
of in a show cause order shall not preclude the issuance of a cease and
desist order. Corrections or promises to correct the conditions or matters
complained of, and the past record of the licensee, may, however, be
considered in determining whether a revocation and/or a cease and desist
order should be issued.
(f) Any order of revocation and/or cease and desist order issued after
hearing pursuant to this section shall include a statement of findings and
the grounds therefor, shall specify the effective date of the order, and
shall be served on the person to whom such order is directed.
(Sec. 312, 48 Stat. 1086, as amended; 47 U.S.C. 312)
§ 1.92 Revocation and/or cease and desist proceedings; after waiver of
hearing.
top
(a) After the issuance of an order to show cause, pursuant to §1.91, calling
upon a person to appear at a hearing before the Commission, the occurrence
of any one of the following events or circumstances will constitute a waiver
of such hearing and the proceeding thereafter will be conducted in
accordance with the provisions of this section.
(1) The respondent fails to file a timely written appearance as prescribed
in §1.91(c) indicating that he will appear at a hearing and present evidence
on the matters specified in the order.
(2) The respondent, having filed a timely written appearance as prescribed
in §1.91(c), fails in fact to appear in person or by his attorney at the
time and place of the duly scheduled hearing.
(3) The respondent files with the Commission, within the time specified for
a written appearance in §1.91(c), a written statement expressly waiving his
rights to a hearing.
(b) When a hearing is waived under the provisions of paragraph (a) (1) or
(3) of this section, a written statement signed by the respondent denying or
seeking to mitigate or justify the circumstances or conduct complained of in
the order to show cause may be submitted within the time specified in
§1.91(c). The Commission in its discretion may accept a late statement.
However, a statement tendered after the specified time has expired will not
be accepted unless accompanied by a petition stating with particularity the
facts and reasons relied on to justify such late filing. Such petitions for
acceptance of a late statement will be granted only if the Commission
determines that the facts and reasons stated therein constitute good cause
for failure to file on time.
(c) Whenever a hearing is waived by the occurrence of any of the events or
circumstances listed in paragraph (a) of this section, the Chief
Administrative Law Judge (or the presiding officer if one has been
designated) shall, at the earliest practicable date, issue an order reciting
the events or circumstances constituting a waiver of hearing, terminating
the hearing proceeding, and certifying the case to the Commission. Such
order shall be served upon the respondent.
(d) After a hearing proceeding has been terminated pursuant to paragraph (c)
of this section, the Commission will act upon the matters specified in the
order to show cause in the regular course of business. The Commission will
determine on the basis of all the information available to it from any
source, including such further proceedings as may be warranted, if a
revocation order and/or a cease and desist order should issue, and if so,
will issue such order. Otherwise, the Commission will issue an order
dismissing the proceeding. All orders specified in this paragraph will
include a statement of the findings of the Commission and the grounds and
reasons therefor, will specify the effective date thereof, and will be
served upon the respondent.
(e) Corrections or promise to correct the conditions or matters complained
of in a show cause order shall not preclude the issuance of a cease and
desist order. Corrections or promises to correct the conditions or matters
complained of, and the past record of the licensee, may, however, be
considered in determining whether a revocation and/or a cease and desist
order should be issued.
(Sec. 312, 48 Stat. 1086, as amended; 47 U.S.C. 312)
[ 28 FR 12415 , Nov. 22, 1963, as amended at 29 FR 6443 , May 16, 1964; 37 FR 19372 , Sept. 20, 1972]
§ 1.93 Consent orders.
top
(a) As used in this subpart, a “consent order” is a formal decree accepting
an agreement between a party to an adjudicatory hearing proceeding held to
determine whether that party has violated statutes or Commission rules or
policies and the appropriate operating Bureau, with regard to such party's
future compliance with such statutes, rules or policies, and disposing of
all issues on which the proceeding was designated for hearing. The order is
issued by the officer designated to preside at the hearing or (if no officer
has been designated) by the Chief Administrative Law Judge.
(b) Where the interests of timely enforcement or compliance, the nature of
the proceeding, and the public interest permit, the Commission, by its
operating Bureaus, may negotiate a consent order with a party to secure
future compliance with the law in exchange for prompt disposition of a
matter subject to administrative adjudicative proceedings. Consent orders
may not be negotiated with respect to matters which involve a party's basic
statutory qualifications to hold a license (see 47 U.S.C. 308 and 309).
[ 41 FR 14871 , Apr. 8, 1976]
§ 1.94 Consent order procedures.
top
(a) Negotiations leading to a consent order may be initiated by the
operating Bureau or by a party whose possible violations are issues in the
proceeding. Negotiations may be initiated at any time after designation of a
proceeding for hearing. If negotiations are initiated the presiding officer
shall be notified. Parties shall be prepared at the initial prehearing
conference to state whether they are at that time willing to enter
negotiations. See §1.248(c)(7). If either party is unwilling to enter
negotiations, the hearing proceeding shall proceed. If the parties agree to
enter negotiations, they will be afforded an appropriate opportunity to
negotiate before the hearing is commenced.
(b) Other parties to the proceeding are entitled, but are not required, to
participate in the negotiations, and may join in any agreement which is
reached.
(c) Every agreement shall contain the following:
(1) An admission of all jurisdictional facts;
(2) A waiver of the usual procedures for preparation and review of an
initial decision;
(3) A waiver of the right of judicial review or otherwise to challenge or
contest the validity of the consent order;
(4) A statement that the designation order may be used in construing the
consent order;
(5) A statement that the agreement shall become a part of the record of the
proceeding only if the consent order is signed by the presiding officer and
the time for review has passed without rejection of the order by the
Commission;
(6) A statement that the agreement is for purposes of settlement only and
that its signing does not constitute an admission by any party of any
violation of law, rules or policy (see 18 U.S.C. 6002); and
(7) A draft order for signature of the presiding officer resolving by
consent, and for the future, all issues specified in the designation order.
(d) If agreement is reached, it shall be submitted to the presiding officer
or Chief Administrative Law Judge, as the case may be, who shall either sign
the order, reject the agreement, or suggest to the parties that negotiations
continue on such portion of the agreement as he considers unsatisfactory or
on matters not reached in the agreement. If he rejects the agreement, the
hearing shall proceed. If he suggests further negotiations, the hearing will
proceed or negotiations will continue, depending on the wishes of parties to
the agreement. If he signs the consent order, he shall close the record.
(e) Any party to the proceeding who has not joined in any agreement which is
reached may appeal the consent order under §1.302, and the Commission may
review the agreement on its own motion under the provisions of that section.
If the Commission rejects the consent order, the proceeding will be remanded
for further proceedings. If the Commission does not reject the consent
order, it shall be entered in the record as a final order and is subject to
judicial review on the initiative only of parties to the proceeding who did
not join in the agreement. The Commission may revise the agreement and
consent order. In that event, private parties to the agreement may either
accept the revision or withdraw from the agreement. If the party whose
possible violations are issues in the proceeding withdraws from the
agreement, the consent order will not be issued or made a part of the
record, and the proceeding will be remanded for further proceedings.
(f) The provisions of this section shall not alter any existing procedure
for informal settlement of any matter prior to designation for hearing (see,
e.g., 47 U.S.C. 208) or for summary decision after designation for hearing.
(g) Consent orders, pleadings relating thereto, and Commission orders with
respect thereto shall be served on parties to the proceeding. Public notice
will be given of orders issued by an administrative law judge, the Chief
Administrative Law Judge, or the Commission. Negotiating papers constitute
work product, are available to parties participating in negotiations, but
are not routinely available for public inspection.
[ 41 FR 14871 , Apr. 8, 1976]
§ 1.95 Violation of consent orders.
top
Violation of a consent order shall subject the consenting party to any and
all sanctions which could have been imposed in the proceeding resulting in
the consent order if all of the issues in that proceeding had been decided
against the consenting party and to any further sanctions for violation
noted as agreed upon in the consent order. The Commission shall have the
burden of showing that the consent order has been violated in some (but not
in every) respect. Violation of the consent order and the sanctions to be
imposed shall be the only issues considered in a proceeding concerning such
an alleged violation.
[ 41 FR 14871 , Apr. 8, 1976]
Reconsideration and Review of Actions Taken by the Commission and Pursuant to
Delegated Authority; Effective Dates and Finality Dates of Actions
top
§ 1.101 General provisions.
top
Under section 5(c) of the Communications Act of 1934, as amended, the
Commission is authorized, by rule or order, to delegate certain of its
functions to a panel of commissioners, an individual commissioner, an
employee board, or an individual employee. Section 0.201(a) of this chapter
describes in general terms the basic categories of delegations which are
made by the Commission. Subpart B of part 0 of this chapter sets forth all
delegations which have been made by rule. Sections 1.102 through 1.120 set
forth procedural rules governing reconsideration and review of actions taken
pursuant to authority delegated under section 5(c) of the Communications
Act, and reconsideration of actions taken by the Commission. As used in
§§1.102 through 1.117, the term designated authority means any person,
panel, or board which has been authorized by rule or order to exercise
authority under section 5(c) of the Communications Act.
[ 28 FR 12415 , Nov. 22, 1963, as amended at 62 FR 4170 , Jan. 29, 1997]
§ 1.102 Effective dates of actions taken pursuant to delegated authority.
top
(a) Final actions following review of an initial decision. (1) Final
decisions of a commissioner, or panel of commissioners following review of
an initial decision shall be effective 40 days after public release of the
full text of such final decision.
(2) If a petition for reconsideration of such final decision is filed, the
effect of the decision is stayed until 40 days after release of the final
order disposing of the petition.
(3) If an application for review of such final decision is filed, or if the
Commission on its own motion orders the record of the proceeding before it
for review, the effect of the decision is stayed until the Commission's
review of the proceeding has been completed.
(b) Non-hearing and interlocutory actions. (1) Non-hearing or interlocutory
actions taken pursuant to delegated authority shall, unless otherwise
ordered by the designated authority, be effective upon release of the
document containing the full text of such action, or in the event such a
document is not released, upon release of a public notice announcing the
action in question.
(2) If a petition for reconsideration of a non-hearing action is filed, the
designated authority may in its discretion stay the effect of its action
pending disposition of the petition for reconsideration. Petitions for
reconsideration of interlocutory actions will not be entertained.
(3) If an application for review of a non-hearing or interlocutory action is
filed, or if the Commission reviews the action on its own motion, the
Commission may in its discretion stay the effect of any such action until
its review of the matters at issue has been completed.
[ 28 FR 12415 , Nov. 22, 1963, as amended at 62 FR 4170 , Jan. 29, 1997]
§ 1.103 Effective dates of Commission actions; finality of Commission
actions.
top
(a) Unless otherwise specified by law or Commission rule (e.g. §§1.102 and
1.427), the effective date of any Commission action shall be the date of
public notice of such action as that latter date is defined in §1.4(b) of
these rules: Provided, That the Commission may, on its own motion or on
motion by any party, designate an effective date that is either earlier or
later in time than the date of public notice of such action. The designation
of an earlier or later effective date shall have no effect on any pleading
periods.
(b) Notwithstanding any determinations made under paragraph (a) of this
section, Commission action shall be deemed final, for purposes of seeking
reconsideration at the Commission or judicial review, on the date of public
notice as defined in §1.4(b) of these rules.
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 154,
303, 307)
[ 46 FR 18556 , Mar. 25, 1981]
§ 1.104 Preserving the right of review; deferred consideration of application
for review.
top
(a) The provisions of this section apply to all final actions taken pursuant
to delegated authority, including final actions taken by members of the
Commission's staff on nonhearing matters. They do not apply to interlocutory
actions of the Chief Administrative Law Judge in hearing proceedings, or to
hearing designation orders issued under delegated authority. See §§0.351,
1.106(a) and 1.115(e).
(b) Any person desiring Commission consideration of a final action taken
pursuant to delegated authority shall file either a petition for
reconsideration or an application for review (but not both) within 30 days
from the date of public notice of such action, as that date is defined in
§1.4(b) of these rules. The petition for reconsideration will be acted on by
the designated authority or referred by such authority to the Commission:
Provided, That a petition for reconsideration of an order designating a
matter for hearing will in all cases be referred to the Commission. The
application for review will in all cases be acted upon by the Commission.
Note: In those cases where the Commission does not intend to release a
document containing the full text of its action, it will state that fact in
the public notice announcing its action.
(c) If in any matter one party files a petition for reconsideration and a
second party files an application for review, the Commission will withhold
action on the application for review until final action has been taken on
the petition for reconsideration.
(d) Any person who has filed a petition for reconsideration may file an
application for review within 30 days from the date of public notice of such
action, as that date is defined in §1.4(b) of these rules. If a petition for
reconsideration has been filed, any person who has filed an application for
review may: (1) Withdraw his application for review, or (2) substitute an
amended application therefor.
Note: In those cases where the Commission does not intend to release a
document containing the full text of its action, it will state that fact in
the public notice announcing its action.
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 154,
303, 307)
[ 28 FR 12415 , Nov. 22, 1963, as amended at 41 FR 14871 , Apr. 8, 1976; 44 FR 60294 , Oct. 19, 1979; 46 FR 18556 , Mar. 25, 1981; 62 FR 4170 , Jan. 29, 1997]
§ 1.106 Petitions for reconsideration.
top
(a)(1) Petitions requesting reconsideration of a final Commission action
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 §1.429. This §1.106 does
not govern reconsideration of such actions.)
(2) Within the period allowed for filing a petition for reconsideration, any
party to the proceeding may request the presiding officer to certify to the
Commission the question as to whether, on policy in effect at the time of
designation or adopted since designation, and undisputed facts, a hearing
should be held. If the presiding officer finds that there is substantial
doubt, on established policy and undisputed facts, that a hearing should be
held, he will certify the policy question to the Commission with a statement
to that effect. No appeal may be filed from an order denying such a request.
See also, §§1.229 and 1.251.
(b)(1) Subject to the limitations set forth in paragraph (b)(2) of this
section, any party to the proceeding, or any other person whose interests
are adversely affected by any action taken by the Commission or by the
designated authority, may file a petition requesting reconsideration of the
action taken. If the petition is filed by a person who is not a party to the
proceeding, it shall state with particularity the manner in which the
person's interests are adversely affected by the action taken, and shall
show good reason why it was not possible for him to participate in the
earlier stages of the proceeding.
(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 is present:
(i) The petition relies on facts which relate to events which have occurred
or circumstances which have changed since the last opportunity to present
such matters; or
(ii) The petition relies on facts unknown to petitioner until after his last
opportunity to present such matters which could not, through the exercise of
ordinary diligence, have been learned 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) A petition for reconsideration which relies on facts not previously
presented to the Commission or to the designated authority may be granted
only under the following circumstances:
(1) The facts fall within one or more of the categories set forth in
§1.106(b)(2); or
(2) The Commission or the designated authority determines that consideration
of the facts relied on is required in the public interest.
(d)(1) The petition 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
or relief sought and, subject to this requirement, may contain alternative
requests.
(2) The petition for reconsideration shall also, where appropriate, cite the
findings of fact and/or conclusions of law which petitioner believes to be
erroneous, and shall state with particularity the respects in which he
believes such findings and conclusions should be changed. The petition may
request that additional findings of fact and conclusions of law be made.
(e) Where a petition for reconsideration is based upon a claim of electrical
interference, under appropriate rules in this chapter, to an existing
station or a station for which a construction permit is outstanding, such
petition, in addition to meeting the other requirements of this section,
must be accompanied by an affidavit of a qualified radio engineer. Such
affidavit shall show, either by following the procedures set forth in this
chapter for determining interference in the absence of measurements, or by
actual measurements made in accordance with the methods prescribed in this
chapter, that electrical interference will be caused to the station within
its normally protected contour.
(f) The petition for reconsideration and any supplement thereto shall be
filed within 30 days from the date of public notice of the final Commission
action, as that date is defined in §1.4(b) of these rules, and shall be
served upon parties to the proceeding. The petition for reconsideration
shall not exceed 25 double spaced typewritten pages. No supplement or
addition to a petition for reconsideration which has not been acted upon by
the Commission or by the designated authority, filed after expiration of the
30 day period, will be considered except upon leave granted upon a separate
pleading for leave to file, which shall state the grounds therefor.
(g) Oppositions to a petition for reconsideration shall be filed within 10
days after the petition is filed, and shall be served upon petitioner and
parties to the proceeding. Oppositions shall not exceed 25 double spaced
typewritten pages.
(h) Petitioner may reply to oppositions within seven days after the last day
for filing oppositions, and any such reply shall be served upon parties to
the proceeding. Replies shall not exceed 10 double spaced typewritten pages,
and shall be limited to matters raised in the opposition.
(i) Petitions for reconsideration, oppositions, and replies shall conform to
the requirements of §§1.49, 1.51, and 1.52 and shall be submitted to the
Secretary, Federal Communications Commission, Washington, D.C., 20554.
(j) The Commission or designated authority may grant the petition for
reconsideration in whole or in part or may deny 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.
(k)(1) If the Commission or the designated authority grants the petition for
reconsideration in whole or in part, it may, in its decision:
(i) Simultaneously reverse or modify the order from which reconsideration is
sought;
(ii) Remand the matter to a bureau or other Commission personnel for such
further proceedings, including rehearing, as may be appropriate; or
(iii) Order such other proceedings as may be necessary or appropriate.
(2) If the Commission or designated authority initiates further proceedings,
a ruling on the merits of the matter will be deferred pending completion of
such proceedings. Following completion of such further proceedings, the
Commission or designated authority may affirm, reverse, or modify its
original order, or it may set aside the order and remand the matter for such
further proceedings, including rehearing, as may be appropriate.
(3) Any order disposing of a petition for reconsideration which reverses or
modifies the original order is subject to the same provisions with respect
to reconsideration as the original order. In no event, however, shall a
ruling which denies a petition for reconsideration be considered a
modification of the original order. A petition for reconsideration of an
order which has been previously denied on reconsideration may be dismissed
by the staff as repetitious.
Note: For purposes of this section, the word “order” refers to that portion
of its action wherein the Commission announces its judgment. This should be
distinguished from the “memorandum opinion” or other material which often
accompany and explain the order.
(l) No evidence other than newly discovered evidence, evidence which has
become available only since the original taking of evidence, or evidence
which the Commission or the designated authority believes should have been
taken in the original proceeding shall be taken on any rehearing ordered
pursuant to the provisions of this section.
(m) The filing of a petition for reconsideration is not a condition
precedent to judicial review of any action taken by the Commission or by the
designated authority, except where the person seeking such review was not a
party to the proceeding resulting in the action, or relies on questions of
fact or law upon which the Commission or designated authority has been
afforded no opportunity to pass. (See §1.115(c).) Persons in those
categories who meet the requirements of this section may qualify to seek
judicial review by filing a petition for reconsideration.
(n) Without special order of the Commission, the filing of a petition for
reconsideration shall not excuse any person from complying with or obeying
any decision, order, or requirement of the Commission, or operate in any
manner to stay or postpone the enforcement thereof. However, upon good cause
shown, the Commission will stay the effectiveness of its order or
requirement pending a decision on the petition for reconsideration. (This
paragraph applies only to actions of the Commission en banc. For provisions
applicable to actions under delegated authority, see §1.102.)
(o) Petitions for reconsideration of licensing actions, as well as
oppositions and replies thereto, that are filed with respect to the Wireless
Radio Services, may be filed electronically via ULS.
(Secs. 4, 303, 307, 405, 48 Stat., as amended, 1066, 1082, 1083, 1095; 47
U.S.C. 154, 303, 307, 405)
[ 28 FR 12415 , Nov. 22, 1963, as amended at 37 FR 7507 , Apr. 15, 1972; 41 FR 1287 , Jan. 7, 1976; 44 FR 60294 , Oct. 19, 1979; 46 FR 18556 , Mar. 25, 1981;
62 FR 4170 , Jan. 29, 1997; 63 FR 68920 , Dec. 14, 1998]
§ 1.108 Reconsideration on Commission's own motion.
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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 §1.4(b) of these rules.
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 154,
303, 307)
[ 28 FR 12415 , Nov. 22, 1963, as amended at 46 FR 18556 , Mar. 25, 1981]
§ 1.110 Partial grants; rejection and designation for hearing.
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Where the Commission without a hearing grants any application in part, or
with any privileges, terms, or conditions other than those requested, or
subject to any interference that may result to a station if designated
application or applications are subsequently granted, the action of the
Commission shall be considered as a grant of such application unless the
applicant shall, within 30 days from the date on which such grant is made or
from its effective date if a later date is specified, file with the
Commission a written request rejecting the grant as made. Upon receipt of
such request, the Commission will vacate its original action upon the
application and set the application for hearing in the same manner as other
applications are set for hearing.
§ 1.113 Action modified or set aside by person, panel, or board.
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(a) Within 30 days after public notice has been given of any action taken
pursuant to delegated authority, the person, panel, or board taking the
action may modify or set it aside on its own motion.
(b) Within 60 days after notice of any sanction imposed under delegated
authority has been served on the person affected, the person, panel, or
board which imposed the sanction may modify or set it aside on its own
motion.
(c) Petitions for reconsideration and applications for review shall be
directed to the actions as thus modified, and the time for filing such
pleadings shall be computed from the date upon which public notice of the
modified action is given or notice of the modified sanction is served on the
person affected.
§ 1.115 Application for review of action taken pursuant to delegated
authority.
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(a) Any person aggrieved by any action taken pursuant to delegated authority
may file an application requesting review of that action by the Commission.
Any person filing an application for review who has not previously
participated in the proceeding shall include with his application a
statement describing with particularity the manner in which he is aggrieved
by the action taken and showing good reason why it was not possible for him
to participate in the earlier stages of the proceeding. Any application for
review which fails to make an adequate showing in this respect will be
dismissed.
(b)(1) The application for review shall concisely and plainly state the
questions presented for review with reference, where appropriate, to the
findings of fact or conclusions of law.
(2) Except as provided in paragraph (b)(5) of this section, the application
for review shall specify with particularity, from among the following, the
factor(s) which warrant Commission consideration of the questions presented:
(i) The action taken pursuant to delegated authority is in conflict with
statute, regulation, case precedent, or established Commission policy.
(ii) The action involves a question of law or policy which has not
previously been resolved by the Commission.
(iii) The action involves application of a precedent or policy which should
be overturned or revised.
(iv) An erroneous finding as to an important or material question of fact.
(v) Prejudicial procedural error.
(3) The application for review shall state with particularity the respects
in which the action taken by the designated authority should be changed.
(4) The application for review shall state the form of relief sought and,
subject to this requirement, may contain alternative requests.
(c) No application for review will be granted if it relies on questions of
fact or law upon which the designated authority has been afforded no
opportunity to pass.
Note: Subject to the requirements of §1.106, new questions of fact or law
may be presented to the designated authority in a petition for
reconsideration.
(d) Except as provided in paragraph (e) of this section, the application for
review and any supplemental thereto shall be filed within 30 days of public
notice of such action, as that date is defined in section 1.4(b). Opposition
to the application shall be filed within 15 days after the application for
review is filed. Except as provided in paragraph (e)(3) of this section,
replies to oppositions shall be filed within 10 days after the opposition is
filed and shall be limited to matters raised in the opposition.
(e)(1) Applications for review of interlocutory rulings made by the Chief
Administrative Law Judge (see §0.351) shall be deferred until the time when
exceptions are filed unless the Chief Judge certifies the matter to the
Commission for review. A matter shall be certified to the Commission only if
the Chief Judge determines that it presents a new or novel question of law
or policy and that the ruling is such that error would be likely to require
remand should the appeal be deferred and raised as an exception. The request
to certify the matter to the Commission shall be filed within 5 days after
the ruling is made. The application for review shall be filed within 5 days
after the order certifying the matter to the Commission is released or such
ruling is made. Oppositions shall be filed within 5 days after the
application is filed. Replies to oppositions shall be filed only if they are
requested by the Commission. Replies (if allowed) shall be filed within 5
days after they are requested. A ruling certifying or not certifying a
matter to the Commission is final: Provided, however, That the Commission
may, on its own motion, dismiss the application for review on the ground
that objections to the ruling should be deferred and raised as an exception.
(2) The failure to file an application for review of an interlocutory ruling
made by the Chief Administrative Law Judge or the denial of such application
by the Commission, shall not preclude any party entitled to file exceptions
to the initial decision from requesting review of the ruling at the time
when exceptions are filed. Such requests will be considered in the same
manner as exceptions are considered.
(3) Applications for review of a hearing designation order issued under
delegated authority shall be deferred until exceptions to the initial
decision in the case are filed, unless the presiding Administrative Law
Judge certifies such an application for review to the Commission. A matter
shall be certified to the Commission only if the presiding Administrative
Law Judge determines that the matter involves a controlling question of law
as to which there is substantial ground for difference of opinion and that
immediate consideration of the question would materially expedite the
ultimate resolution of the litigation. A ruling refusing to certify a matter
to the Commission is not appealable. In addition, the Commission may
dismiss, without stating reasons, an application for review that has been
certified, and direct that the objections to the hearing designation order
be deferred and raised when exceptions in the initial decision in the case
are filed. A request to certify a matter to the Commission shall be filed
with the presiding Administrative Law Judge within 5 days after the
designation order is released. Any application for review authorized by the
Administrative Law Judge shall be filed within 5 days after the order
certifying the matter to the Commission is released or such a ruling is
made. Oppositions shall be filed within 5 days after the application for
review is filed. Replies to oppositions shall be filed only if they are
requested by the Commission. Replies (if allowed) shall be filed within 5
days after they are requested.
(4) Applications for review of final staff decisions issued on delegated
authority in formal complaint proceedings on the Enforcement Bureau's
Accelerated Docket (see, e.g., §1.730) shall be filed within 15 days of
public notice of the decision, as that date is defined in §1.4(b). These
applications for review oppositions and replies in Accelerated Docket
proceedings shall be served on parties to the proceeding by hand or
facsimile transmission.
(f) Applications for review, oppositions, and replies shall conform to the
requirements of §§1.49, 1.51, and 1.52, and shall be submitted to the
Secretary, Federal Communications Commission, Washington, DC 20554. Except
as provided below, applications for review and oppositions thereto shall not
exceed 25 double-space typewritten pages. Applications for review of
interlocutory actions in hearing proceedings (including designation orders)
and oppositions thereto shall not exceed 5 double-spaced typewritten pages.
When permitted (see paragraph (e)(3) of this section), reply pleadings shall
not exceed 5 double-spaced typewritten pages. The application for review
shall be served upon the parties to the proceeding. Oppositions to the
application for review shall be served on the person seeking review and on
parties to the proceeding. When permitted (see paragraph (e)(3) of this
section), replies to the opposition(s) to the application for review shall
be served on the person(s) opposing the application for review and on
parties to the proceeding.
(g) The Commission may grant the application for review in whole or in part,
or it may deny the application with or without specifying reasons therefor.
A petition requesting reconsideration of a ruling which denies an
application for review will be entertained only if one or more of the
following circumstances is present:
(1) The petition relies on facts which related to events which have occurred
or circumstances which have changed since the last opportunity to present
such matters; or
(2) The petition relies on facts unknown to petitioner until after his last
opportunity to present such matters which could not, through the exercise of
ordinary diligence, have been learned prior to such opportunity.
(h)(1) If the Commission grants the application for review in whole or in
part, it may, in its decision:
(i) Simultaneously reverse or modify the order from which review is sought;
(ii) Remand the matter to the designated authority for reconsideration in
accordance with its instructions, and, if an evidentiary hearing has been
held, the remand may be to the person(s) who conducted the hearing; or
(iii) Order such other proceedings, including briefs and oral argument, as
may be necessary or appropriate.
(2) In the event the Commission orders further proceedings, it may stay the
effect of the order from which review is sought. (See §1.102.) Following the
completion of such further proceedings the Commission may affirm, reverse or
modify the order from which review is sought, or it may set aside the order
and remand the matter to the designated authority for reconsideration in
accordance with its instructions. If an evidentiary hearing has been held,
the Commission may remand the matter to the person(s) who conducted the
hearing for rehearing on such issues and in accordance with such
instructions as may be appropriate.
Note: For purposes of this section, the word “order” refers to that portion
of its action wherein the Commission announces its judgment. This should be
distinguished from the “memorandum opinion” or other material which often
accompany and explain the order.
(i) An order of the Commission which reverses or modifies the action taken
pursuant to delegated authority is subject to the same provisions with
respect to reconsideration as an original order of the Commission. In no
event, however, shall a ruling which denies an application for review be
considered a modification of the action taken pursuant to delegated
authority.
(j) No evidence other than newly discovered evidence, evidence which has
become available only since the original taking of evidence, or evidence
which the Commission believes should have been taken in the original
proceeding shall be taken on any rehearing ordered pursuant to the
provisions of this section.
(k) The filing of an application for review shall be a condition precedent
to judicial review of any action taken pursuant to delegated authority.
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 154,
303, 307)
[ 28 FR 12415 , Nov. 22, 1963, as amended at 41 FR 14871 , Apr. 8, 1976; 44 FR 60295 , Oct. 19, 1979; 46 FR 18556 , Mar. 25, 1981; 48 FR 12719 , Mar. 28,
1983; 50 FR 39000 , Sept. 26, 1985; 54 FR 40392 , Oct. 2, 1989; 55 FR 36641 ,
Sept. 6, 1990; 57 FR 19387 , May 6, 1992; 62 FR 4170 , Jan. 29, 1997; 63 FR 41446 , Aug. 4, 1998; 67 FR 13223 , Mar. 21, 2002]
§ 1.117 Review on motion of the Commission.
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(a) Within 40 days after public notice is given of any action taken pursuant
to delegated authority, the Commission may on its own motion order the
record of the proceeding before it for review.
(b) If the Commission reviews the proceeding on its own motion, it may order
such further procedure as may be useful to it in its review of the action
taken pursuant to delegated authority.
(c) With or without such further procedure, the Commission may either
affirm, reverse, modify, or set aside the action taken, or remand the
proceeding to the designated authority for reconsideration in accordance
with its instructions. If an evidentiary hearing has been held, the
Commission may remand the proceeding to the person(s) who conducted the
hearing for rehearing on such issues and in accordance with such
instructions as may be appropriate. An order of the Commission which
reverses or modifies the action taken pursuant to delegated authority, or
remands the matter for further proceedings, is subject to the same
provisions with respect to reconsideration as an original action of the
Commission.
§ 1.120 Protests of grants without hearing.
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(a) The provisions of this section shall not be applicable to any
application: (1) Filed on or after December 12, 1960; (2) filed before
December 12, 1960, but substantially amended (as defined in the applicable
provisions of this chapter) on or after that date; or (3) filed before
December 12, 1960, and not thereafter substantially amended, but with
respect to which the rules in this chapter provide an opportunity for
petitions to deny to be filed under section 309 of the Communications Act,
as amended. See §§1.580 and 1.962.
(b) Where any instrument of authorization for a radio station, other than a
license pursuant to a construction permit, has been granted without a
hearing, any party in interest may file a protest directed to such grant and
request a hearing on the application granted. Such protest shall be signed
by the protestant and subscribed to under oath. Such protest must be filed
with the Commission within 30 days after release of the document containing
the full text of such action, or in case such a document is not released,
after release of a “Public Notice” announcing the action in question and
must separately set forth:
(1) Such allegations of fact as will show the protestant to be a party in
interest, i.e., a person aggrieved or whose interests are adversely affected
by the Commission's authorization, protest of which is sought. Each such
allegation of fact shall be separately stated.
(2) Facts indicating the reasons why the grant was improperly made or would
otherwise not be in the public interest. Each such reason shall be
separately stated, and facts in support thereof shall be specified in detail
and shall not include general non-specific conclusory arguments and
allegations.
(3) The specific issues upon which protestant wishes a hearing to be held,
which issues must relate directly to a matter specified with particularity
as part of paragraph (b)(2) of this section.
(c) Arguments and citations of authority may be set forth in a brief
accompanying the protest but must be excluded from the protest itself.
(d) Oppositions to protests and briefs in support thereof shall contain all
material, including that pertinent to the determination referred to in
paragraph (i) of this section, deemed appropriate to the Commission's
resolution of the protest. Such oppositions and supporting briefs must be
filed within 10 days after the filing of such protest, and any replies to
such oppositions must be filed within 5 days after the filing of the
oppositions.
(e) Protests, oppositions, and replies shall be filed with the Commission in
original and 14 copies and shall be accompanied by proof of service upon the
grantee or the protestant, as the case may be, and/or their respective
attorneys.
(f) The Commission may upon consideration of a protest direct either the
protestant or grantee or both to submit further statements of fact under
oath relating to the matters raised in the protest.
(g) Within 30 days from the date of the filing of the protest, the
Commission will enter findings as to whether such protest meets the
requirements set forth in paragraphs (b) (1) and (2) of this section. If the
Commission finds that one of these requirements is not met, it will dismiss
the protest. If the Commission finds that these requirements are met, it
will designate the application in question for hearing. As to issues which
the Commission believes present no grounds for setting aside the grant, even
if the facts alleged were to be proven, the Commission may designate such
issues for oral argument only. The other issues will be designated for
evidentiary hearing except that the Commission may redraft the issues in
accordance with the facts or substantive matters alleged in the protest and
may also specify such additional issues as it deems desirable. In any
evidentiary hearing subsequently held upon issues specified by the
Commission, upon its own initiative or adopted by it, both the burden of
proceeding with the introduction of evidence and the burden of proof shall
be upon the grantee. With respect to issues resulting from facts set forth
in the protest and not adopted or specified by the Commission on its own
motion, both the burden of proceeding with the introduction of evidence and
the burden of proof shall be upon the protestant.
(h) The procedure in such protest hearing shall be governed by the
provisions of subpart B of this part, except as otherwise provided in this
section.
(i) Pending hearing and decision, the effective date of the Commission's
action to which protest is made shall be postponed to the effective date of
the Commission's decision after hearing, unless the authorization involved
is necessary to the maintenance or conduct of an existing service or unless
the Commission affirmatively finds that the public interest requires that
the grant remain in effect, in which event the Commission shall authorize
the applicant to utilize the facilities or authorization in question pending
the Commission's decision after hearing.
(Sec. 7, 66 Stat. 715, as amended. See, in particular, sec. 4 (a) and (d),
74 Stat. 889, 892; 47 U.S.C. 309)
[ 28 FR 12415 , Nov. 22, 1963, as amended at 28 FR 14503 , Dec. 31, 1963]
Subpart B—Hearing Proceedings
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Source: 28 FR 12425 , Nov. 22, 1963, unless otherwise noted.
General
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§ 1.201 Scope.
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This subpart shall be applicable to the following cases which have been
designated for hearing:
(a) Adjudication (as defined by the Administrative Procedure Act); and
(b) Rule making proceedings which are required by law to be made on the
record after opportunity for a Commission hearing.
Note: For special provisions relating to AM broadcast station applications
involving other North American countries see §73.3570.
[ 28 FR 12425 , Nov. 22, 1963, as amended at 51 FR 32088 , Sept. 9, 1986]
§ 1.202 Official reporter; transcript.
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The Commission will designate from time to time an official reporter for the
recording and transcribing of hearing proceedings. The transcript of the
testimony taken, or argument had, at any hearing will not be furnished by
the Commission, but will be open to inspection under §0.453(a)(1) of this
chapter. Copies of such transcript, if desired, may be obtained from the
official reporter upon payment of the charges therefor.
(5 U.S.C. 556)
[ 32 FR 20861 , Dec. 28, 1967]
§ 1.203 The record.
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The transcript of testimony and exhibits, together with all papers and
requests filed in the proceeding, shall constitute the exclusive record for
decision. Where any decision rests on official notice of a material fact not
appearing in the record, any party shall on timely request be afforded an
opportunity to show the contrary.
(5 U.S.C. 556)
§ 1.204 Pleadings; definition.
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As used in this subpart, the term pleading means any written notice, motion,
petition, request, opposition, reply, brief, proposed findings, exceptions,
memorandum of law, or other paper filed with the Commission in a hearing
proceeding. It does not include exhibits or documents offered in evidence.
See §1.356.
[ 29 FR 8219 , June 30, 1964]
§ 1.205 Continuances and extensions.
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Continuances of any proceeding or hearing and extensions of time for making
any filing or performing any act required or allowed to be done within a
specified time may be granted by the Commission or the presiding officer
upon motion for good cause shown, unless the time for performance or filing
is limited by statute.
§ 1.207 Interlocutory matters, reconsideration and review; cross references.
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(a) Rules governing interlocutory pleadings in hearing proceedings are set
forth in §§1.291 through 1.298.
(b) Rules governing appeal from rulings made by the presiding officer are
set forth as §§1.301 and 1.302.
(c) Rules governing the reconsideration and review of actions taken pursuant
to delegated authority, and the reconsideration of actions taken by the
Commission, are set forth in §§1.101 through 1.120.
[ 28 FR 12425 , Nov. 22, 1963, as amended at 29 FR 6443 , May 16, 1964; 36 FR 19439 , Oct. 6, 1971]
§ 1.209 Identification of responsible officer in caption to pleading.
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Each pleading filed in a hearing proceeding shall indicate in its caption
whether it is to be acted upon by the Commission, the Chief Administrative
Law Judge, or the presiding officer. If it is to be acted upon by the
presiding officer, he shall be identified by name.
[ 29 FR 8219 , June 30, 1964, as amended at 37 FR 19372 , Sept. 20, 1972; 62 FR 4171 , Jan. 29, 1997]
§ 1.211 Service.
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Except as otherwise expressly provided in this chapter, all pleadings filed
in a hearing proceeding shall be served upon all other counsel in the
proceeding or, if a party is not represented by counsel, then upon such
party. All such papers shall be accompanied by proof of service. For
provisions governing the manner of service, see §1.47.
[ 29 FR 8219 , June 30, 1964]
Participants and Issues
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§ 1.221 Notice of hearing; appearances.
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(a) Upon designation of an application for hearing, the Commission issues an
order containing the following:
(1) A statement as to the reasons for the Commission's action.
(2) A statement as to the matters of fact and law involved, and the issues
upon which the application will be heard.
(3) A statement as to the time, place, and nature of the hearing. (If the
time and place are not specified, the order will indicate that the time and
place will be specified at a later date.)
(4) A statement as to the legal authority and jurisdiction under which the
hearing is to be held.
(b) The order designating an application for hearing is mailed to the
applicant by the Reference Information Center of the Consumer and
Governmental Affairs Bureau and this order or a summary thereof is published
in theFederal Register.Reasonable notice of hearing will be given to the
parties in all proceedings; and, whenever possible, the Commission will give
at least 60 days notice of comparative hearings.
(c) In order to avail himself of the opportunity to be heard, the applicant,
in person or by his attorney, shall, within 20 days of the mailing of the
notice of designation for hearing by the Reference Information Center of the
Consumer and Governmental Affairs Bureau, file with the Commission, in
triplicate, a written appearance stating that he will appear of the date
fixed for hearing and present evidence on the issues specified in the order.
Where an applicant fails to file such a written appearance within the time
specified, or has not filed prior to the expiration of that time a petition
to dismiss without prejudice, or a petition to accept, for good cause shown,
such written appearance beyond expiration of said 20 days, the application
will be dismissed with prejudice for failure to prosecute.
(d) The Commission will on its own motion name as parties to the hearing any
person found to be a party in interest.
(e) In order to avail himself of the opportunity to be heard, any person
named as a party pursuant to paragraph (d) of this section shall, within 20
days of the mailing of the notice of his designation as a party, file with
the Commission, in person or by attorney, a written appearance in
triplicate, stating that he will appear at the hearing. Any person so named
who fails to file this written statement within the time specified, shall,
unless good cause for such failure is shown, forfeit his hearing rights.
(f)(1) A fee must accompany each written appearance filed with the
Commission in certain cases designated for hearing. See subpart G, part 1
for the amount due. Except as provided in paragraph (g) of this section, the
fee must accompany each written appearance at the time of its filing and
must be in conformance with the requirements of subpart G of the rules. A
written appearance that does not contain the proper fee, or is not
accompanied by a deferral request as per §1.1115 of the rules, shall be
dismissed and returned to the applicant by the fee processing staff. The
presiding judge will be notified of this action and may dismiss the
applicant with prejudice for failure to prosecute if the written appearance
is not resubmitted with the correct fee within the original 20 day filing
period.
Note: If the parties file a settlement agreement prior to filing the Notice
of Appearance or simultaneously with it, the hearing fee need not accompany
the Notice of Appearance. In filing the Notice of Appearance, the applicant
should clearly indicate that a settlement agreement has been filed. (The
fact that there are ongoing negotiations that may lead to a settlement does
not affect the requirement to pay the fee.) If a settlement agreement is not
effectuated, the Presiding Judge will require immediate payment of the fee.
(2) When a fee is required to accompany a written appearance as described in
paragraph (f)(1) of this section, the written appearance must also contain
FCC Registration Number (FRN) in conformance with subpart W of this part.
The presiding judge will notify the party filing the appearance of the
omitted FRN and dismiss the applicant with prejudice for failure to
prosecute if the written appearance is not resubmitted with the FRN within
ten (10) business days of the date of notification.
(g) In comparative broadcast proceedings involving applicants for new
facilities, where the hearing fee was paid before designation of the
applications for hearing as required by the Public Notice described at
§73.3571(c), §73.3572(d), or §73.3573(g) of this chapter, a hearing fee
payment should not be made with the filing of the Notice of Appearance.
(5 U.S.C. 554. Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)
[28 12424, Nov. 22, 1963, as amended at 51 FR 19347 , May 29, 1986; 52 FR 5288 , Feb. 20, 1987; 55 FR 19154 , May 8, 1990; 56 FR 25638 , June 5, 1991; 64 FR 60725 , Nov. 8, 1999; 66 FR 47895 , Sept. 14, 2001; 67 FR 13223 , Mar. 21,
2002]
§ 1.223 Petitions to intervene.
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(a) Where, in cases involving applications for construction permits and
station licenses, or modifications or renewals thereof, the Commission has
failed to notify and name as a party to the hearing any person who qualifies
as a party in interest, such person may acquire the status of a party by
filing, under oath and not more than 30 days after the publication in
theFederal Registerof the hearing issues or any substantial amendment
thereto, a petition for intervention showing the basis of its interest.
Where such person's interest is based upon a claim that a grant of the
application would cause objectionable interference under applicable
provisions of this chapter to such person as a licensee or permittee of an
existing or authorized station, the petition to intervene must be
accompanied by an affidavit of a qualified radio engineer which shall show,
either by following the procedures prescribed in this chapter for
determining interference in the absence of measurements or by actual
measurements made in accordance with the methods prescribed in this chapter,
the extent of such interference. Where the person's status as a party in
interest is established, the petition to intervene will be granted.
(b) Any other person desiring to participate as a party in any hearing may
file a petition for leave to intervene not later than 30 days after the
publication in theFederal Registerof the full text or a summary of the order
designating an application for hearing or any substantial amendment thereto.
The petition must set forth the interest of petitioner in the proceedings,
must show how such petitioner's participation will assist the Commission in
the determination of the issues in question, must set forth any proposed
issues in addition to those already designated for hearing, and must be
accompanied by the affidavit of a person with knowledge as to the facts set
forth in the petition. The presiding officer, in his discretion, may grant
or deny such petition or may permit intervention by such persons limited to
a particular stage of the proceeding.
(c) Any person desiring to file a petition for leave to intervene later than
30 days after the publication in theFederal Registerof the full text or a
summary of the order designating an application for hearing or any
substantial amendment thereto shall set forth the interest of petitioner in
the proceeding, show how such petitioner's participation will assist the
Commission in the determination of the issues in question, must set forth
any proposed issues in addition to those already designated for hearing, and
must set forth reasons why it was not possible to file a petition within the
time prescribed by paragraphs (a) and (b) of this section. Such petition
shall be accompanied by the affidavit of a person with knowledge of the
facts set forth in the petition, and where petitioner claims that a grant of
the application would cause objectionable interference under applicable
provisions of this chapter, the petition to intervene must be accompanied by
the affidavit of a qualified radio engineer showing the extent of such
alleged interference according to the methods prescribed in paragraph (a) of
this section. If, in the opinion of the presiding officer, good cause is
shown for the delay in filing, he may in his discretion grant such petition
or may permit intervention limited to particular issues or to a particular
stage of the proceeding.
(Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)
[ 28 FR 12425 , Nov. 22, 1963, as amended at 29 FR 7821 , June 19, 1964; 41 FR 14872 , Apr. 8, 1976; 51 FR 19347 , May 29, 1986]
§ 1.224 Motion to proceed in forma pauperis.
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(a) A motion to proceed in forma pauperis may be filed by an individual, a
corporation, and unincorporated entity, an association or other similar
group, if the moving party is either of the following:
(1) A respondent in a revocation proceeding, or a renewal applicant, who
cannot carry on his livelihood without the radio license at stake in the
proceeding; or
(2) An intervenor in a hearing proceeding who is in a position to introduce
testimony which is of probable decisional significance, on a matter of
substantial public interest importance, which cannot, or apparently will
not, be introduced by other parties to the proceeding, and who is not
seeking personal financial gain.
(b) In the case of a licensee, the motion to proceed in forma pauperis shall
contain specific allegations of fact sufficient to show that the moving
party is eligible under paragraph (a) of this section and that he cannot,
because of his poverty, pay the expenses of litigation and still be able to
provide himself and his dependents with the necessities of life. Such
allegations of fact shall be supported by affidavit of a person or persons
with personal knowledge thereof. The information submitted shall detail the
income and assets of the individual and his financial obligations and
responsibilities, and shall contain an estimate of the cost of participation
in the proceeding. Personal financial information may be submitted to the
presiding officer in confidence.
(c)(1) In the case of an individual intervenor, the motion to proceed in
forma pauperis shall contain specific allegations of fact sufficient to show
that he is eligible under paragraph (a) of this section and that he has
dedicated financial resources to sustain his participation which are
reasonable in light of his personal resources and other demands upon them
but are inadequate for effective participation in the proceeding. Such
allegations of fact shall be supported by affidavit of a person or persons
with personal knowledge thereof. The information submitted shall detail the
income and assets of the individual and his immediate family and his
financial obligations and responsibilities, and shall contain an estimate of
the cost of participation. Personal financial information may be submitted
to the presiding officer in confidence.
(2) In the case of an intervening group, the motion to proceed in forma
pauperis shall contain specific allegations of fact sufficient to show that
the moving party is eligible under paragraph (a) of this section and that it
cannot pay the expenses of litigation and still be able to carry out the
activities and purposes for which it was organized. Such allegations of fact
shall be supported by affidavit of the President and Treasurer of the group,
and/or by other persons having personal knowledge thereof. The information
submitted shall include a copy of the corporate charter or other documents
that describe the activities and purposes of the organization; a current
balance sheet and profit and loss statement; facts showing, under all the
circumstances, that it would not be reasonable to expect added resources of
individuals composing the group to be pooled to meet the expenses of
participating in the proceeding; and an estimate of the cost of
participation. Personal financial information pertaining to members of the
group may be submitted to the presiding officer in confidence.
(d) If the motion is granted, the presiding officer may direct that a free
copy of the transcript of testimony be made available to the moving party
and may relax the rules of procedure in any manner which will ease his
financial burden, is fair to other parties to the proceeding, and does not
involve the payment of appropriated funds to a party.
[ 41 FR 53021 , Dec. 3, 1976]
§ 1.225 Participation by non-parties; consideration of communications.
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(a) Any person who wishes to appear and give evidence on any matter and who
so advises the Secretary, will be notified by the Secretary if that matter
is designated for hearing. In the case of requests bearing more than one
signature, notice of hearing will be given to the person first signing
unless the request indicates that such notice should be sent to someone
other than such person.
(b) No person shall be precluded from giving any relevant, material, and
competent testimony at a hearing because he lacks a sufficient interest to
justify his intervention as a party in the matter.
(c) When a hearing is held, no communication will be considered in
determining the merits of any matter unless it has been received into
evidence. The admissibility of any communication shall be governed by the
applicable rules of evidence, and no communication shall be admissible on
the basis of a stipulation unless Commission counsel as well as counsel for
all of the parties shall join in such stipulation.
§ 1.227 Consolidations.
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(a) The Commission, upon motion or upon its own motion, will, where such
action will best conduce to the proper dispatch of business and to the ends
of justice, consolidate for hearing:
(1) Any cases which involve the same applicant or involve substantially the
same issues, or
(2) Any applications which present conflicting claims, except where a random
selection process is used.
(b)(1) In broadcast cases, except as provided in paragraph (b)(5) of this
section, and except as otherwise provided in §1.1601, et seq., no
application will be consolidated for hearing with a previously filed
application or applications unless such application, or such application as
amended, if amended so as to require a new file number, is substantially
complete and tendered for filing by the close of business on the day
preceding the day designated by Public Notice as the day any one of the
previously filed applications is available and ready for processing.
(2) In other than broadcast, common carrier, and safety and special radio
services cases, any application that is mutually exclusive with another
application or applications already designated for hearing will be
consolidated for hearing with such other application or applications only if
the later application in question has been filed within 5 days after public
notice has been given in theFederal Registerof the Commission's order which
first designated for hearing the prior application or applications with
which such application is in conflict.
(3) Common carrier cases: (i) General rule. Where an application is mutually
exclusive with a previously filed application, the second application will
be entitled to comparative consideration with the first or entitled to be
included in a random selection process, only if the second has been properly
filed at least one day before the Commission takes action on the first
application. Specifically, the later filed application must have been
received by the Commission, in a condition acceptable for filing, before the
close of business on the day prior to the grant date or designation date of
the earlier filed application.
(ii) Domestic public fixed and public mobile. See Rule §21.31 of this
chapter for the requirements as to mutually exclusive applications. See also
Rule §21.23 of this chapter for the requirements as to amendments of
applications.
(iii) Public coast stations (Maritime mobile service). See paragraph (b)(4)
of this section.
(4) This paragraph applies when mutually exclusive applications subject to
section 309(b) of the Communications Act and not subject to competitive
bidding procedures pursuant to §1.2102 of this chapter are filed in the
Private Radio Services, or when there are more such applications for initial
licenses than can be accommodated on available frequencies. Except for
applications filed under part 101, subparts H and O, Private Operational
Fixed Microwave Service, and applications for high seas public coast
stations (see §§80.122(b)(1) (first sentence), 80.357, 80.361, 80.363(a)(2),
80.371(a), (b), and (d), and 80.374 of this chapter) mutual exclusivity will
occur if the later application or applications are received by the
Commission's offices in Gettysburg, PA (or Pittsburgh, PA for applications
requiring the fees set forth at part 1, subpart G of the rules) in a
condition acceptable for filing within 30 days after the release date of
public notice listing the first prior filed application (with which
subsequent applications are in conflict) as having been accepted for filing
or within such other period as specified by the Commission. For applications
in the Private Operational Fixed Microwave Service, mutual exclusivity will
occur if two or more acceptable applications that are in conflict are filed
on the same day. Applications for high seas public coast stations will be
processed on a first come, first served basis, with the first acceptable
application cutting off the filing rights of subsequent, conflicting
applications. Applications for high seas public coast stations received on
the same day will be treated as simultaneously filed and, if granting more
than one would result in harmful interference, must be resolved through
settlement or technical amendment.
(5) Any mutually exclusive application filed after the date prescribed in
paragraph (b)(1), (b)(2), (b)(3), or (b)(4) of this section will be
dismissed without prejudice and will be eligible for refiling only after a
final decision is rendered by the Commission with respect to the prior
application or applications or after such application or applications are
dismissed or removed from the hearing docket.
(6) An application which is mutually exclusive with an application for
renewal of license of a broadcast station filed on or before May 1, 1995
will be designated for comparative hearing with such license renewal
application if it is substantially complete and tendered for filing no later
than the date prescribed in §73.3516(e).
[ 28 FR 12425 , Nov. 22, 1963, as amended at 34 FR 7966 , May 21, 1969; 37 FR 13983 , July 15, 1972; 38 FR 26202 , Sept. 19, 1973; 48 FR 27200 , June 13,
1983; 48 FR 34039 , July 27, 1983; 52 FR 10229 , Mar. 31, 1987; 55 FR 46008 ,
Oct. 31, 1990; 55 FR 46513 , Nov. 5, 1990; 61 FR 18291 , Apr. 25, 1996; 67 FR 34851 , May 16, 2002; 67 FR 48563 , July 25, 2002]
§ 1.229 Motions to enlarge, change, or delete issues.
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(a) A motion to enlarge, change or delete the issues may be filed by any
party to a hearing. Except as provided for in paragraph (b) of this section,
such motions must be filed within 15 days after the full text or a summary
of the order designating the case for hearing has been published in
theFederal Register.
(b)(1) In comparative broadcast proceedings involving applicants for only
new facilities, such motions shall be filed within 30 days of the release of
the designation order, except that persons not named as parties to the
proceeding in the designation order may file such motions with their
petitions to intervene up to 30 days after publication of the full text or a
summary of the designation order in theFederal Register.( See §1.223 of this
part).
(2) In comparative broadcast proceedings involving renewal applicants, such
motions shall be filed within 30 days after publication of the full text or
a summary of the designation order in theFederal Register.
(3) Any person desiring to file a motion to modify the issues after the
expiration of periods specified in paragraphs (a), (b)(1), and (b)(2), of
this section, shall set forth the reason why it was not possible to file the
motion within the prescribed period. Except as provided in paragraph (c) of
this section, the motion will be granted only if good cause is shown for the
delay in filing. Motions for modifications of issues which are based on new
facts or newly discovered facts shall be filed within 15 days after such
facts are discovered by the moving party.
(c) In the absence of good cause for late filing of a motion to modify the
issues, the motion to enlarge will be considered fully on its merits if (and
only if) initial examination of the motion demonstrates that it raises a
question of probable decisional significance and such substantial public
interest importance as to warrant consideration in spite of its untimely
filing.
(d) Such motions, opposition thereto, and replies to oppositions shall
contain specific allegations of fact sufficient to support the action
requested. Such allegations of fact, except for those of which official
notice may be taken, shall be supported by affidavits of a person or persons
having personal knowledge thereof. The failure to file an opposition or a
reply will not necessarily be construed as an admission of any fact or
argument contained in a pleading.
(e) In comparative broadcast proceedings involving applicants for only new
facilities, in addition to the showing with respect to the requested issue
modification described in paragraph (d) of this section, the party
requesting the enlargement of issues against an applicant in the proceeding
shall identify those documents the moving party wishes to have produced and
any other discovery procedures the moving party wishes to employ in the
event the requested issue is added to the proceeding.
(1) In the event the motion to enlarge issues is granted, the Commission or
delegated authority acting on the motion will also rule on the additional
discovery requests, and, if granted, such additional discovery will be
scheduled to be completed within 30 days of the action on the motion.
(2) The moving party may file supplemental discovery requests on the basis
of information provided in responsive pleadings or discovered as a result of
initial discovery on the enlarged issue. The grant or denial of any such
supplemental requests and the timing of the completion of such supplemental
discovery are subject to the discretion of the presiding judge.
(3) The 30-day time limit for completion of discovery on enlarged issues
shall not apply where the persons subject to such additional discovery are
not parties to the proceeding. In such case, additional time will be
required to afford such persons adequate notice of the discovery procedures
being employed.
(f) In any case in which the presiding judge or the Commission grants a
motion to enlarge the issues to inquire into allegations that an applicant
made misrepresentations to the Commission or engaged in other misconduct
during the application process, the enlarged issues include notice that,
after hearings on the enlarged issue and upon a finding that the alleged
misconduct occurred and warrants such penalty, in addition to or in lieu of
denying the application, the applicant may be liable for a forfeiture of up
to the maximum statutory amount. See 47 U.S.C. 503(b)(2)(A).
[ 41 FR 14872 , Apr. 8, 1976, as amended at 44 FR 34947 , June 18, 1979; 51 FR 19347 , May 29, 1986; 56 FR 792 , Jan. 9, 1991; 56 FR 25639 , June 5, 1991; 62 FR 4171 , Jan. 29, 1997]
Presiding Officer
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§ 1.241 Designation of presiding officer.
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(a) Hearings will be conducted by the Commission, by one or more
commissioners, or by a law judge designated pursuant to section 11 of the
Administrative Procedure Act. If a presiding officer becomes unavailable to
the Commission prior to the taking of testimony another presiding officer
will be designated.
(b) Unless the Commission determines that due and timely execution of its
functions requires otherwise, presiding officers shall be designated, and
notice thereof released to the public, at least 10 days prior to the date
set for hearing.
(5 U.S.C. 556)
§ 1.243 Authority of presiding officer.
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From the time he is designated to preside until issuance of his decision or
the transfer of the proceeding to the Commission or to another presiding
officer the presiding officer shall have such authority as is vested in him
by law and by the provisions of this chapter, including authority to:
(a) Administer oaths and affirmations;
(b) Issue subpenas;
(c) Examine witnesses;
(d) Rule upon questions of evidence;
(e) Take or cause depositions to be taken;
(f) Regulate the course of the hearing, maintain decorum, and exclude from
the hearing any person engaging in contemptuous conduct or otherwise
disrupting the proceedings;
(g) Require the filing of memoranda of law and the presentation of oral
argument with respect to any question of law upon which he is required to
rule during the course of the hearing;
(h) Hold conferences for the settlement or simplification of the issues by
consent of the parties;
(i) Dispose of procedural requests or similar matters, as provided for in
§0.341 of this chapter;
(j) Take actions and make decisions in conformity with the Administrative
Procedure Act;
(k) Act on motions to enlarge, modify or delete the hearing issues; and
(l) Act on motions to proceed in forma pauperis pursuant to §1.224.
(5 U.S.C. 556)
[ 28 FR 12425 , Nov. 22, 1963, as amended at 41 FR 53022 , Dec. 3, 1976]
§ 1.244 Designation of a settlement judge.
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(a) In broadcast comparative cases involving applicants for only new
facilities, the applicants may request the appointment of a settlement judge
to facilitate the resolution of the case by settlement.
(b) Where all applicants in the case agree that such procedures may be
beneficial, such requests may be filed with the presiding judge no later
than 15 days prior to the date scheduled by the presiding judge for the
commencement of hearings. The presiding judge shall suspend the procedural
dates in the case and forward the request to the Chief Administrative Law
Judge for action.
(c) If, in the discretion of the Chief Administrative Law Judge, it appears
that the appointment of a settlement judge will facilitate the settlement of
the case, the Chief Judge will appoint a “neutral” as defined in 5 U.S.C.
581 and 583(a) to act as the settlement judge.
(1) The parties may request the appointment of a settlement judge of their
own choosing so long as that person is a “neutral” as defined in 5 U.S.C.
581.
(2) The appointment of a settlement judge in a particular case is subject to
the approval of all the applicants in the proceeding. See 5 U.S.C. 583(b).
(3) The Commission's Administrative Law Judges are eligible to act as
settlement judges, except that an Administrative Law Judge will not be
appointed as a settlement judge in any case in which the Administrative Law
Judge also acts as the presiding officer.
(4) Other members of the Commission's staff who qualify as neutrals may be
appointed as settlement judges, except that staff members whose duties
include drafting, review, and/or recommendations in adjudicatory matters
pending before the Commission shall not be appointed as settlement judges.
(d) The settlement judge shall have the authority to require applicants to
submit their Standardized Integration Statements and/or their written direct
cases for review. The settlement judge may also meet with the applicants
and/or their counsel, individually and/or at joint conferences, to discuss
their cases and the cases of their competitors. All such meetings will be
off-the-record, and the settlement judge may express an opinion as to the
relative comparative standing of the applicants and recommend possible means
to resolve the proceeding by settlement. The proceedings before the
settlement judge shall be subject to the confidentiality provisions of 5
U.S.C. 574. Moreover, no statements, offers of settlement, representations
or concessions of the parties or opinions expressed by the settlement judge
will be admissible as evidence in any Commission licensing proceeding.
[ 56 FR 793 , Jan. 9, 1991, as amended at 62 FR 4171 , Jan. 29, 1997]
§ 1.245 Disqualification of presiding officer.
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(a) In the event that a presiding officer deems himself disqualified and
desires to withdraw from the case, he shall notify the Commission of his
withdrawal at least 7 days prior to the date set for hearing.
(b) Any party may request the presiding officer to withdraw on the grounds
of personal bias or other disqualification.
(1) The person seeking disqualification shall file with the presiding
officer an affidavit setting forth in detail the facts alleged to constitute
grounds for disqualification. Such affidavit shall be filed not later than 5
days before the commencement of the hearing unless, for good cause shown,
additional time is necessary.
(2) The presiding officer may file a response to the affidavit; and if he
believes himself not disqualified, shall so rule and proceed with the
hearing.
(3) The person seeking disqualification may appeal a ruling of
disqualification, and, in that event, shall do so at the time the ruling is
made. Unless an appeal of the ruling is filed at this time, the right to
request withdrawal of the presiding officer shall be deemed waived.
(4) If an appeal of the ruling is filed, the presiding officer shall certify
the question, together with the affidavit and any response filed in
connection therewith, to the Commission. The hearing shall be suspended
pending a ruling on the question by the Commission.
(5) The Commission may rule on the question without hearing, or it may
require testimony or argument on the issues raised.
(6) The affidavit, response, testimony or argument thereon, and the
Commission's decision shall be part of the record in the case.
(5 U.S.C. 556)
[ 28 FR 12425 , Nov. 22, 1963, as amended at 55 FR 36641 , Sept. 6, 1990; 62 FR 4171 , Jan. 29, 1997]
Prehearing Procedures
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§ 1.246 Admission of facts and genuineness of documents.
top
(a) Within 20 days after the time for filing a notice of appearance has
expired; or within 20 days after the release of an order adding parties to
the proceeding (see §§1.223 and 1.227) or changing the issues (see §1.229);
or within such shorter or longer time as the presiding officer may allow on
motion or notice, a party may serve upon any other party a written request
for the admission by the latter of the genuineness of any relevant documents
identified in and exhibited by a clear copy with the request or of the truth
of any relevant matters of fact set forth in the request.
(b) Each of the matters of which an admission is requested shall be deemed
admitted unless, within a period designated in the request, not less than 10
days after service thereof, or within such shorter or longer time as the
presiding officer may allow on motion or notice, the party to whom the
request is directed serves upon the party requesting the admission either:
(1) A sworn statement denying specifically the matters of which an admission
is requested or setting forth in detail the reasons why he cannot truthfully
admit or deny those matters, or (2) written objections on the ground that
some or all of the requested admissions are privileged or irrelevant or that
the request is otherwise improper in whole or in part. If written objections
to a part of the request are made, the remainder of the request shall be
answered within the period designated in the request. A denial shall fairly
meet the substance of the requested admission, and when good faith requires
that a party deny only a part or a qualification of a matter of which an
admission is requested, he shall specify so much of it as is true and deny
only the remainder.
(c) A copy of the request and of any answer shall be served by the party
filing on all other parties to the proceeding and upon the presiding
officer.
(d) Written objections to the requested admissions may be ruled upon by the
presiding officer without additional pleadings.
[ 33 FR 463 , Jan. 12, 1968, as amended at 35 FR 17333 , Nov. 11, 1970]
§ 1.248 Prehearing conferences; hearing conferences.
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(a) The Commission, on its own initiative or at the request of any party,
may direct the parties or their attorneys to appear at a specified time and
place for a conference prior to a hearing, or to submit suggestions in
writing, for the purpose of considering, among other things, the matters set
forth in paragraph (c) of this section. The initial prehearing conference
shall be scheduled 30 days after the effective date of the order designating
a case for hearing, unless good cause is shown for scheduling such
conference at a later date.
(b)(1) The presiding officer (or the Commission or a panel of commissioners
in a case over which it presides), on his own initiative or at the request
of any party, may direct the parties or their attorneys to appear at a
specified time and place for a conference prior to or during the course of a
hearing, or to submit suggestions in writing, for the purpose of considering
any of the matters set forth in paragraph (c) of this section. The initial
prehearing conference shall be scheduled 30 days after the effective date of
the order designating a case for hearing, unless good cause is shown for
scheduling such conference at a later date.
(2) Except as circumstances otherwise require, the presiding officer shall
allow a reasonable period prior to commencement of the hearing for the
orderly completion of all prehearing procedures, including discovery, and
for the submission and disposition of all prehearing motions. Where the
circumstances so warrant, the presiding officer shall, promptly after the
hearing is ordered, call a preliminary prehearing conference, to inquire
into the use of available procedures contemplated by the parties and the
time required for their completion, to formulate a schedule for their
completion, and to set a date for commencement of the hearing.
(c) In conferences held, or in suggestions submitted, pursuant to paragraphs
(a) and (b) of this section, the following matters, among others, may be
considered:
(1) The necessity or desirability of simplification, clarification,
amplification, or limitation of the issues;
(2) The admission of facts and of the genuineness of documents (see §1.246),
and the possibility of stipulating with respect to facts;
(3) The procedure at the hearing;
(4) The limitation of the number of witnesses;
(5) In cases arising under Title II of the Communications Act, the necessity
or desirability of amending the pleadings and offers of settlement or
proposals of adjustment; and
(6) In cases involving comparative broadcast applications:
(i) Narrowing the issues or the areas of inquiry and proof at the hearing;
(ii) [Reserved]
(iii) Reports and letters relating to surveys or contacts;
(iv) Assumptions regarding the availability of equipment;
(v) Network programming;
(vi) Assumptions regarding the availability of networks proposed;
(vii) Offers of letters in general;
(viii) The method of handling evidence relating to the past cooperation of
existing stations owned and/or operated by the applicants with organizations
in the area;
(ix) Proof of contracts, agreements, or understandings reduced to writing;
(x) Stipulations;
(xi) Need for depositions;
(xii) The numbering of exhibits;
(xiii) The order or offer of proof with relationship to docket number;
(xiv) The date for the formal hearing; and
(xv) Such other matters as may expedite the conduct of the hearing.
(7) In proceedings in which consent agreements may be negotiated (see
§1.93), the parties shall be prepared to state at the initial prehearing
conference whether they are at that time willing to enter negotiations
leading to a consent agreement.
(d) This paragraph applies to broadcast proceedings only.
(1) At the prehearing conference prescribed by this section, the parties to
the proceeding shall be prepared to discuss the advisability of reducing any
or all phases of their affirmative direct cases to written form.
(2) In hearings involving applications for new, improved and changed
facilities and in comparative hearings involving only applications for new
facilities, where it appears that it will contribute significantly to the
disposition of the proceeding for the parties to submit all or any portion
of their affirmative direct cases in writing, the presiding officer may, in
his discretion, require them to do so.
(3) In other broadcast proceedings, where it appears that it will contribute
significantly to the disposition of the proceeding for the parties to submit
all or any portion of their affirmative direct cases in writing, it is the
policy of the Commission to encourage them to do so. However, the phase or
phases of the proceeding to be submitted in writing, the dates for the
exchange of the written material, and other limitations upon the effect of
adopting the written case procedure (such as whether material ruled out as
incompetent may be restored by other competent testimony) is to be left to
agreement of the parties as approved by the presiding officer.
(4) In broadcast comparative cases involving applicants for only new
facilities, oral testimony and cross examination will be permitted only
where, in the discretion of the presiding judge, material issues of
decisional fact cannot be resolved without oral evidentiary hearing
procedures or the public interest otherwise requires oral evidentiary
proceedings.
(e) An official transcript of all conferences shall be made.
(f) The presiding officer may, upon the written request of a party or
parties, approve the use of a speakerphone as a means of attendance at a
prehearing conference if such use is found to conduce to the proper dispatch
of business and the ends of justice.
[ 28 FR 12425 , Nov. 22, 1963, as amended at 33 FR 463 , Jan. 12, 1968; 36 FR 14133 , July 30, 1971; 37 FR 7507 , Apr. 15, 1972; 41 FR 14873 , Apr. 8, 1976;
43 FR 33251 , July 31, 1978; 56 FR 793 , Jan. 9, 1991]
§ 1.249 Prehearing statement.
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Immediately upon convening the formal hearing in any proceeding, the
presiding officer shall enter upon the record a statement reciting all
actions taken at the prehearing conferences, and incorporating into the
record all of the stipulations and agreements of the parties which are
approved by him, and any special rules which he may deem necessary to govern
the course of the proceeding.
[ 28 FR 12425 , Nov. 22, 1963. Redesignated at 33 FR 463 , Jan. 12, 1968]
Hearing and Intermediate Decision
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§ 1.250 Discovery and preservation of evidence; cross-reference.
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For provisions relating to prehearing discovery and preservation of
admissible evidence, see §§1.311 through 1.325.
[ 33 FR 463 , Jan. 12, 1968]
§ 1.251 Summary decision.
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(a)(1) Any party to an adjudicatory proceeding may move for summary decision
of all or any of the issues set for hearing. The motion shall be filed at
least 20 days prior to the date set for commencement of the hearing. The
party filing the motion may not rest upon mere allegations or denials but
must show, by affidavit or by other materials subject to consideration by
the presiding officer, that there is no genuine issue of material fact for
determination at the hearing.
(2) With the permission of the presiding officer, or upon his invitation, a
motion for summary decision may be filed at any time before or after the
commencement of the hearing. No appeal from an order granting or denying a
request for permission to file a motion for summary decision shall be
allowed. If the presiding officer authorizes a motion for summary decision
after the commencement of the hearing, proposed findings of fact and
conclusions of law on those issues which the moving party believes can be
resolved shall be attached to the motion, and any other party may file
findings of fact and conclusions of law as an attachment to pleadings filed
by him pursuant to paragraph (b) of this section.
(b) Within 14 days after a motion for summary decision is filed, any other
party to the proceeding may file an opposition or a countermotion for
summary decision. A party opposing the motion may not rest upon mere
allegations or denials but must show, by affidavit or by other materials
subject to consideration by the presiding officer, that there is a genuine
issue of material fact for determination at the hearing, that he cannot, for
good cause, present by affidavit or otherwise facts essential to justify his
opposition, or that summary decision is otherwise inappropriate.
(c) Affidavits shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matters stated therein.
(d) The presiding officer may, in his discretion, set the matter for
argument and call for the submission of proposed findings, conclusions,
briefs or memoranda of law. The presiding officer, giving appropriate weight
to the nature of the proceeding, the issue or issues, the proof, and to the
need for cross-examination, may grant a motion for summary decision to the
extent that the pleadings, affidavits, materials obtained by discovery or
otherwise, admissions, or matters officially noticed, show that there is no
genuine issue as to any material fact and that a party is otherwise entitled
to summary decision. If it appears from the affidavits of a party opposing
the motion that he cannot, for good cause shown, present by affidavit or
otherwise facts essential to justify his opposition, the presiding officer
may deny the motion, may order a continuance to permit affidavits to be
obtained or discovery to be had, or make such other order as is just.
(e) If all of the issues (or a dispositive issue) are determined on a motion
for summary decision no hearing (or further hearing) will be held. The
presiding officer will issue a Summary Decision, which is subject to appeal
or review in the same manner as an Initial Decision. See §§1.271 through
1.282. If some of the issues only (including no dispositive issue) are
decided on a motion for summary decision, or if the motion is denied, the
presiding officer will issue a memorandum opinion and order, interlocutory
in character, and the hearing will proceed on the remaining issues. Appeal
from interlocutory rulings is governed by §1.301.
(f) The presiding officer may take any action deemed necessary to assure
that summary decision procedures are not abused. He may rule in advance of a
motion that the proceeding is not appropriate for summary decision, and may
take such other measures as are necessary to prevent any unwarranted delay.
(1) Should it appear to the satisfaction of the presiding officer that a
motion for summary decision has been presented in bad faith or solely for
the purpose of delay, or that such a motion is patently frivolous, he will
enter a determination to that effect upon the record.
(2) If, on making such determination, the presiding officer concludes that
the facts warrant disciplinary action against an attorney, he will certify
the matter to the Commission with his findings and recommendations, for
consideration under §1.24.
(3) If, on making such determination, the presiding officer concludes that
the facts warrant a finding of bad faith on the part of a party to the
proceeding, he will certify the matter to the Commission, with his findings
and recommendations, for a determination as to whether the facts warrant
addition of an issue as to the character qualifications of that party.
[ 37 FR 7507 , Apr. 15, 1972, as amended at 42 FR 56508 , Oct. 26, 1977]
§ 1.253 Time and place of hearing.
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(a) The Commission will specify the day on which and the place at which any
hearing is to commence.
(b) The presiding officer will specify the days on which subsequent hearing
sessions are to be held.
(c) If the Commission specifies that a hearing is to commence in the
District of Columbia, it shall be moved therefrom only by order of the
Commission.
(d) If the Commission specifies that a hearing is to commence at a field
location, all appropriate proceedings will be completed at such location
before the hearing is moved therefrom. When such proceedings are completed,
the presiding officer may move the hearing from the field location specified
to another appropriate field location or to the District of Columbia.
§ 1.254 Nature of the hearing; burden of proof.
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Any hearing upon an application shall be a full hearing in which the
applicant and all other parties in interest shall be permitted to
participate but in which both the burden of proceeding with the introduction
of evidence upon any issue specified by the Commission, as well as the
burden of proof upon all such issues, shall be upon the applicant except as
otherwise provided in the order of designation.
(Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)
§ 1.255 Order of procedure.
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(a) At hearings on a formal complaint or petition or in a proceeding for any
instrument of authorization which the Commission is empowered to issue, the
complainant, petitioner, or applicant, as the case may be, shall, unless the
Commission otherwise orders, open and close. At hearings on protests, the
protestant opens and closes the proceedings in case the issues are not
specifically adopted by the Commission; otherwise the grantee does so. At
hearings on orders to show cause, to cease and desist, to revoke or modify a
station license under sections 312 and 316 of the Communications Act, or
other like proceedings instituted by the Commission, the Commission shall
open and close.
(b) At all hearings under Title II of the Communications Act, other than
hearings on formal complaints, petitions, or applications, the respondent
shall open and close unless otherwise specified by the Commission.
(c) In all other cases, the Commission or presiding officer shall designate
the order of presentation. Intervenors shall follow the party in whose
behalf intervention is made, and in all cases where the intervention is not
in support of an original party, the Commission or presiding officer shall
designate at what stage such intervenors shall be heard.
[ 28 FR 12425 , Nov. 22, 1963, as amended at 33 FR 463 , Jan. 12, 1968]
§ 1.258 Closing of the hearing.
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The record of hearing shall be closed by an announcement to that effect at
the hearing by the presiding officer when the taking of testimony has been
concluded. In the discretion of the presiding officer, the record may be
closed as of a future specified date in order to permit the admission into
the record of exhibits to be prepared: Provided, The parties to the
proceeding stipulate on the record that they waive the opportunity to
cross-examine or present evidence with respect to such exhibits. The record
in any hearing which has been adjourned may not be closed by such officer
prior to the day on which the hearing is to resume, except upon 10 days'
notice to all parties to the proceeding.
§ 1.260 Certification of transcript.
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After the close of the hearing, the complete transcript of testimony,
together with all exhibits, shall be certified as to identity by the
presiding officer and filed in the Office of the Secretary. Notice of such
certification shall be served on all parties to the proceedings.
[ 71 FR 15618 , Mar. 29, 2006]
§ 1.261 Corrections to transcript.
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At any time during the course of the proceeding, or as directed by the
presiding officer, but not later than 10 days after the date of notice of
certification of the transcript, any party to the proceeding may file with
the presiding officer a motion requesting the correction of the transcript,
which motion shall be accompanied by proof of service thereof upon all other
parties to the proceeding. Within 5 days after the filing of such a motion,
other parties may file a pleading in support of or in opposition to such
motion. Thereafter, the presiding officer shall, by order, specify the
corrections to be made in the transcript, and a copy of the order shall be
served upon all parties and made a part of the record. The presiding
officer, on his own initiative, may specify corrections to be made in the
transcript on 5 days' notice.
[ 40 FR 51441 , Nov. 5, 1975]
§ 1.263 Proposed findings and conclusions.
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(a) Each party to the proceeding may file proposed findings of fact and
conclusions, briefs, or memoranda of law: Provided, however, That the
presiding officer may direct any party other than Commission counsel to file
proposed findings of fact and conclusions, briefs, or memoranda of law. Such
proposed findings of fact, conclusions, briefs, and memoranda of law shall
be filed within 20 days after the record is closed, unless additional time
is allowed.
(b) All pleadings and other papers filed pursuant to this section shall be
accompanied by proof of service thereof upon all other counsel in the
proceeding; if a party is not represented by counsel, proof of service upon
such party shall be made.
(c) In the absence of a showing of good cause therefor, the failure to file
proposed findings of fact, conclusions, briefs, or memoranda of law, when
directed to do so, may be deemed a waiver of the right to participate
further in the proceeding.
(5 U.S.C. 557)
§ 1.264 Contents of findings of fact and conclusions.
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Proposed findings of fact shall be set forth in serially numbered paragraphs
and shall set out in detail and with particularity all basic evidentiary
facts developed on the record (with appropriate citations to the transcript
of record or exhibit relied on for each evidentiary fact) supporting the
conclusions proposed by the party filing same. Proposed conclusions shall be
separately stated. Proposed findings of fact and conclusions submitted by a
person other than an applicant may be limited to those issues in connection
with the hearing which affect the interests of such person.
(5 U.S.C. 557)
§ 1.267 Initial and recommended decisions.
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(a) Except as provided in this paragraph, in §§1.94, 1.251 and 1.274, or
where the proceeding is terminated on motion (see §1.302), the presiding
officer shall prepare an initial (or recommended) decision, which shall be
transmitted to the Secretary of the Commission. In the case of rate making
proceedings conducted under sections 201–205 of the Communications Act, the
presumption shall be that the presiding officer shall prepare an initial or
recommended decision. The Secretary will make the decision public
immediately and file it in the docket of the case.
(b) Each initial and recommended decision shall contain findings of fact and
conclusions, as well as the reasons or basis therefor, upon all the material
issues of fact, law, or discretion presented on the record; each initial
decision shall also contain the appropriate rule or order, and the sanction,
relief or denial thereof; and each recommended decision shall contain
recommendations as to what disposition of the case should be made by the
Commission. Each initial decision will show the date upon which it will
become effective in accordance with the rules in this part in the absence of
exceptions, appeal, or review.
(c) The authority of the Presiding Officer over the proceedings shall cease
when he has filed his Initial or Recommended Decision, or if it is a case in
which he is to file no decision, when he has certified the case for
decision: Provided, however, That he shall retain limited jurisdiction over
the proceeding for the purpose of effecting certification of the transcript
and corrections to the transcript, as provided in §§1.260 and 1.261,
respectively, and for the purpose of ruling initially on applications for
awards of fees and expenses under the Equal Access to Justice Act.
(Sec. 409, 48 Stat. 1096, as amended; 47 U.S.C. 409, 5 U.S.C. 557; secs. 4,
303, 307, 48 Stat., as amended, 1066, 1082, 1083: 47 U.S.C. 154, 303, 307)
[ 28 FR 12425 , Nov. 22, 1963, as amended at 41 FR 14873 , Apr. 8, 1976; 47 FR 3786 , Jan. 27, 1982]
Review Proceedings
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§ 1.271 Delegation of review function.
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The Commission may direct, by order or rule, that its review function in a
case or category of cases be performed by a commissioner, or a panel of
commissioners, in which event the commissioner or panel shall exercise the
authority and perform the functions which would otherwise have been
performed by the Commission under §§1.273 through 1.282.
Note: To provide for an orderly completion of cases, exceptions and related
pleadings filed after March 1, 1996, shall be directed to the Commission and
will not be acted upon by the Review Board.
[ 62 FR 4171 , Jan. 29, 1997]
§ 1.273 Waiver of initial or recommended decision.
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At the conclusion of the hearing or within 20 days thereafter, all parties
to the proceeding may agree to waive an initial or recommended decision, and
may request that the Commission issue a final decision or order in the case.
If the Commission has directed that its review function in the case be
performed by a commissioner, a panel of commissioners, the request shall be
directed to the appropriate review authority. The Commission or such review
authority may in its discretion grant the request, in whole or in part, if
such action will best conduce to the proper dispatch of business and to the
ends of justice.
[ 28 FR 12425 , Nov. 22, 1963, as amended at 62 FR 4171 , Jan. 29, 1997]
§ 1.274 Certification of the record to the Commission for initial or final
decision.
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(a) Where the presiding officer is available to the Commission, and where
the Commission finds upon the record that due and timely execution of its
functions imperatively and unavoidably so requires, the Commission may
direct that the record in a pending proceeding be certified to it for
initial or final decision. Unless the Commission finds that due and timely
execution of its functions imperatively and unavoidably requires that no
recommended decision be issued, the presiding officer will prepare and file
a recommended decision, which will be released with the Commission's initial
or final decision.
(b) Where the presiding officer becomes unavailable to the Commission after
the taking of testimony has been concluded, the Commission may direct that
the record in a pending proceeding be certified to it for initial or final
decision. In that event, the record shall be certified to the Commission by
the Chief Administrative Law Judge.
(c)(1) Where the presiding officer becomes unavailable to the Commission
after the taking of evidence has commenced but before it has been concluded,
the Commission may order a rehearing before another presiding officer
designated in accordance with §1.241.
(2) Upon a finding that due and timely execution of its functions
imperatively and unavoidably so requires, the Commission may (as an
alternative) order that the hearing be continued by another presiding
officer designated in accordance with §1.241 or by the Commission itself. In
that event, the officer continuing the hearing shall, upon completion of the
hearing, certify the proceeding to the Commission for an initial or final
decision. Unless the Commission finds upon the record that due and timely
execution of its functions imperatively and unavoidably requires that no
recommended decision be issued, the officer continuing the hearing shall
prepare and file a recommended decision to be released with the Commission's
initial or final decision. If all the parties expressly consent, and if the
Commission does not order otherwise, the officer continuing the hearing may
prepare an initial decision.
(Sec. 409, 48 Stat. 1096, as amended; 47 U.S.C. 409)
§ 1.276 Appeal and review of initial decision.
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(a)(1) Within 30 days after the date on which public release of the full
text of an initial decision is made, or such other time as the Commission
may specify, any of the parties may appeal to the Commission by filing
exceptions to the initial decision, and such decision shall not become
effective and shall then be reviewed by the Commission, whether or not such
exceptions may thereafter be withdrawn. It is the Commission's policy that
extensions of time for filing exceptions shall not be routinely granted.
(2) Exceptions shall be consolidated with the argument in a supporting brief
and shall not be submitted separately. As used in this subpart, the term
exceptions means the document consolidating the exceptions and supporting
brief. The brief shall contain (i) a table of contents, (ii) a table of
citations, (iii) a concise statement of the case, (iv) a statement of the
questions of law presented, and (v) the argument, presenting clearly the
points of fact and law relied upon in support of the position taken on each
question, with specific reference to the record and all legal or other
materials relied on.
(b) The Commission may on its own initiative provide, by order adopted not
later than 20 days after the time for filing exceptions expires, that an
initial decision shall not become final, and that it shall be further
reviewed or considered by the Commission.
(c) In any case in which an initial decision is subject to review in
accordance with paragraph (a) or (b) of this section, the Commission may, on
its own initiative or upon appropriate requests by a party, take any one or
more of the following actions:
(1) Hear oral argument on the exceptions;
(2) Require the filing of briefs;
(3) Prior to or after oral argument or the filing of exceptions or briefs,
reopen the record and/or remand the proceedings to the presiding officer to
take further testimony or evidence;
(4) Prior to or after oral argument or the filing of exceptions or briefs,
remand the proceedings to the presiding officer to make further findings or
conclusions; and
(5) Prior to or after oral argument or the filing of exceptions or briefs,
issue, or cause to be issued by the presiding officer, a supplemental
initial decision.
(d) No initial decision shall become effective before 50 days after public
release of the full text thereof is made unless otherwise ordered by the
Commission. The timely filing of exceptions, the further review or
consideration of an initial decision on the Commission's initiative, or the
taking of action by the Commission under paragraph (c) of this section shall
stay the effectiveness of the initial decision until the Commission's review
thereof has been completed. If the effective date of an initial decision
falls within any further time allowed for the filing of exceptions, it shall
be postponed automatically until 30 days after time for filing exceptions
has expired.
(e) If no exceptions are filed, and the Commission has not ordered the
review of an initial decision on its initiative, or has not taken action
under paragraph (c) of this section, the initial decision shall become
effective, an appropriate notation to that effect shall be entered in the
docket of the case, and a “Public Notice” thereof shall be given by the
Commission. The provisions of §1.108 shall not apply to such public notices.
(f) When any party fails to file exceptions within the specified time to an
initial decision which proposes to deny its application, such party shall be
deemed to have no interest in further prosecution of its application, and
its application may be dismissed with prejudice for failure to prosecute.
(Sec. 40, 48 Stat. 1096, as amended; 47 U.S.C. 409)
[ 28 FR 12425 , Nov. 22, 1963, as amended at 41 FR 14873 , Apr. 8, 1976]
§ 1.277 Exceptions; oral arguments.
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(a) The consolidated supporting brief and exceptions to the initial decision
(see §1.276(a)(2)), including rulings upon motions or objections, shall
point out with particularity alleged material errors in the decision or
ruling and shall contain specific references to the page or pages of the
transcript of hearing, exhibit or order if any on which the exception is
based. Any objection not saved by exception filed pursuant to this section
is waived.
(b) Within the period of time allowed in §1.276(a) for the filing of
exceptions, any party may file a brief in support of an initial decision, in
whole or in part, which may contain exceptions and which shall be similar in
form to the brief in support of exceptions (see §1.276(a)(2)).
(c) Except by special permission, the consolidated brief and exceptions will
not be accepted if the exceptions and argument exceed 25 double-spaced
typewritten pages in length. (The table of contents and table of citations
are not counted in the 25 page limit; however, all other contents of and
attachments to the brief are counted.) Within 10 days, or such other time as
the Commission or delegated authority may specify, after the time for filing
exceptions has expired, any other party may file a reply brief, which shall
not exceed 25 double spaced typewritten pages and shall contain a table of
contents and a table of citations. If exceptions have been filed, any party
may request oral argument not later than five days after the time for filing
replies to the exceptions has expired. The Commission or delegated
authority, in its discretion, will grant oral argument by order only in
cases where such oral presentations will assist in the resolution of the
issues presented. Within five days after release of an order designating an
initial decision for oral argument, as provided in paragraph (d) of this
section, any party who wishes to participate in oral argument shall file a
written notice of intention to appear and participate in oral argument.
Failure to file a written notice shall constitute a waiver of the
opportunity to participate.
(d) Each order scheduling a case for oral argument will contain the
allotment of time for each party for oral argument before the Commission.
The Commission will grant, in its discretion, upon good cause shown, an
extension of such time upon petition by a party, which petition must be
filed within 5 days after issuance of said order for oral argument.
(e) Within 10 days after a transcript of oral argument has been filed in the
Office of the Secretary, any party who participated in the oral argument may
file with the Commission a motion requesting correction of the transcript,
which motion shall be accompanied by proof of service thereof upon all other
parties who participated in the oral argument. Within 5 days after the
filing of such a motion, other parties may file a pleading in support of or
in opposition to such motion. Thereafter, the officer who presided at the
oral argument shall, by order, specify the corrections to be made in the
transcript, and a copy of the order shall be served upon all parties to the
proceeding. The officer who presided at the oral argument may, on his own
initiative, by order, specify corrections to be made in the transcript on 5
days notice of the proposed corrections to all parties who participated in
the oral argument.
(f) Any commissioner who is not present at oral argument and who is
otherwise authorized to participate in a final decision may participate in
making that decision after reading the transcript of oral argument.
(Sec. 409, 48 Stat. 1096, as amended; 47 U.S.C. 409)
[ 28 FR 12425 , Nov. 22, 1963, as amended at 41 FR 14873 , Apr. 8, 1976; 41 FR 34259 , Aug. 13, 1976; 44 FR 12426 , Mar. 7, 1979; 56 FR 793 , Jan. 9, 1991; 62 FR 4171 , Jan. 29, 1997; 71 FR 15618 , Mar. 29, 2006]
§ 1.279 Limitation of matters to be reviewed.
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Upon review of any initial decision, the Commission may, in its discretion,
limit the issues to be reviewed to those findings and conclusions to which
exceptions have been filed, or to those findings and conclusions specified
in the Commission's order of review issued pursuant to §1.276(b).
§ 1.282 Final decision of the Commission.
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(a) After opportunity has been afforded for the filing of proposed findings
of fact and conclusions, exceptions, supporting statements, briefs, and for
the holding of oral argument as provided in this subpart, the Commission
will issue a final decision in each case in which an initial decision has
not become final.
(b) The final decision shall contain:
(1) Findings of fact and conclusions, as well as the reasons or basis
therefor, upon all the material issues of fact, law or discretion presented
on the record;
(2) Rulings on each relevant and material exception filed; the Commission
will deny irrelevant exceptions, or those which are not of decisional
significance, without a specific statement of reasons prescribed by
paragraph (b)(1) of this section; and
(3) The appropriate rule or oder and the sanction, relief or denial thereof.
(Sec. 8(b), 60 Stat. 2422; 5 U.S.C. 1007(b))
[ 28 FR 12425 , Nov. 22, 1963, as amended at 41 FR 14873 , Apr. 8, 1976]
Interlocutory Actions in Hearing Proceedings
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§ 1.291 General provisions.
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(a)(1) The Commission acts on petitions to amend, modify, enlarge or delete
the issues in hearing proceedings which involve rule making matters
exclusively. It also acts on interlocutory pleadings filed in matters or
proceedings which are before the Commission.
(2) The Chief Administrative Law Judge acts on those interlocutory matters
listed in §0.351 of this chapter.
(3) All other interlocutory matters in hearing proceedings are acted on by
the presiding officer. See §§0.218 and 0.341 of this chapter.
(4) Each interlocutory pleading shall indicate in its caption whether the
pleading is to be acted upon by the Commission, the Chief Administrative Law
Judge, or the presiding officer. If the pleading is to be acted upon by the
presiding officer, he shall be identified by name.
(b) All interlocutory pleadings shall be submitted in accordance with the
provisions of §§1.4, 1.44, 1.47, 1.48, 1.49, and 1.52.
(c)(1) Procedural rules governing interlocutory pleadings are set forth in
§§1.294–1.298.
(2) Rules governing appeal from, and reconsideration of, interlocutory
rulings made by the presiding officer are set forth in §§1.301 and 1.303.
(3) Rules governing the review of interlocutory rulings made by the Chief
Administrative Law Judge are set forth in §§1.101, 1.102(b), 1.115, and
1.117. Petitions requesting reconsideration of an interlocutory ruling made
by the Commission, or the Chief Administrative Law Judge will not be
entertained. See, however, §1.113.
(d) No initial decision shall become effective under §1.276(e) until all
interlocutory matters pending before the Commission in the proceeding at the
time the initial decision is issued have been disposed of and the time
allowed for appeal from interlocutory rulings of the presiding officer has
expired.
(Secs. 4(i), 303(r) and 5(c)(1) of the Communications Act of 1934, as
amended; 47 CFR 0.61 and 0.283)
[ 29 FR 6443 , May 16, 1964, as amended at 29 FR 12773 , Sept. 10, 1964; 37 FR 19372 , Sept. 20, 1972; 41 FR 14873 , Apr. 8, 1976; 49 FR 4381 , Feb. 6, 1984;
62 FR 4171 , Jan. 29, 1997]
§ 1.294 Oppositions and replies.
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(a) Any party to a hearing may file an opposition to an interlocutory
request filed in that proceeding.
(b) Except as provided in paragraph (c) of this section, oppositions shall
be filed within 4 days after the original pleading is filed, and replies to
oppositions will not be entertained. See, however, §1.732.
(c) Oppositions to pleadings in the following categories shall be filed
within 10 days after the pleading is filed. Replies to such oppositions
shall be filed within 5 days after the opposition is filed, and shall be
limited to matters raised in the opposition.
(1) Petitions to amend, modify, enlarge, or delete the issues upon which the
hearing was ordered.
(2) [Reserved]
(3) Petitions by adverse parties requesting dismissal of an application.
(4) Joint requests for approval of agreements filed pursuant to §1.525.
(d) Additional pleadings may be filed only if specifically requested or
authorized by the person(s) who is to make the ruling.
[ 29 FR 6444 , May 16, 1964, as amended at 39 FR 10909 , Mar. 22, 1974]
§ 1.296 Service.
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No pleading filed pursuant to §1.51 or §1.294 will be considered unless it
is accompanied by proof of service upon the parties to the proceeding.
(Secs. 4(i), 303(r) and 5(c)(1) of the Communications Act of 1934, as
amended; 47 CFR 0.61 and 0.283)
[ 49 FR 4381 , Feb. 6, 1984, as amended at 62 FR 4171 , Jan. 29, 1997]
§ 1.297 Oral argument.
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Oral argument with respect to any contested interlocutory matter will be
held when, in the opinion of the person(s) who is to make the ruling, the
ends of justice will be best served thereby. Timely notice will be given of
the date, time, and place of any such oral argument.
[ 29 FR 6444 , May 16, 1964]
§ 1.298 Rulings; time for action.
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(a) Unless it is found that irreparable injury would thereby be caused one
of the parties, or that the public interest requires otherwise, or unless
all parties have consented to the contrary, consideration of interlocutory
requests will be withheld until the time for filing oppositions (and
replies, if replies are allowed) has expired. As a matter of discretion,
however, requests for continuances and extensions of time, requests for
permission to file pleadings in excess of the length prescribed in this
chapter, and requests for temporary relief may be ruled upon ex parte
without waiting for the filing of responsive pleadings.
(b) In the discretion of the presiding officer, rulings on interlocutory
matters may be made orally at the hearing. The presiding officer may, in his
discretion, state his reasons on the record or subsequently issue a written
statement of the reasons for his ruling, either separately or as part of the
initial decision.
[ 28 FR 12425 , Nov. 22, 1963, as amended at 29 FR 6444 , May 16, 1964; 41 FR 14874 , Apr. 8, 1976]
Appeal and Reconsideration of Presiding Officer's Ruling
top
§ 1.301 Appeal from presiding officer's interlocutory ruling; effective date
of ruling.
top
(a) Interlocutory rulings which are appealable as a matter of right. Rulings
listed in this paragraph are appealable as a matter of right. An appeal from
such a ruling may not be deferred and raised as an exception to the initial
decision.
(1) If the presiding officer's ruling denies or terminates the right of any
person to participate as a party to a hearing proceeding, such person, as a
matter of right, may file an appeal from that ruling.
(2) If the presiding officer's ruling requires testimony or the production
of documents, over objection based on a claim of privilege, the ruling on
the claim of privilege is appealable as a matter of right.
(3) If the presiding officer's ruling denies a motion to disqualify the
presiding judge, the ruling is appealable as a matter of right.
(4) Rulings granting a joint request filed under §1.525 without terminating
the proceeding are appealable by any party as a matter of right.
(5) A ruling removing counsel from the hearing is appealable as a matter of
right, by counsel on his own behalf or by his client. (In the event of such
ruling, the presiding officer will adjourn the hearing for such period as is
reasonably necessary for the client to secure new counsel and for counsel to
familiarize himself with the case).
(b) Other interlocutory rulings. Except as provided in paragraph (a) of this
section, appeals from interlocutory rulings of the presiding officer shall
be filed only if allowed by the presiding officer. Any party desiring to
file an appeal shall first file a request for permission to file appeal. The
request shall be filed within 5 days after the order is released or (if no
written order) after the ruling is made. Pleadings responsive to the request
shall be filed only if they are requested by the presiding officer. The
request shall contain a showing that the appeal presents a new or novel
question of law or policy and that the ruling is such that error would be
likely to require remand should the appeal be deferred and raised as an
exception. The presiding officer shall determine whether the showing is such
as to justify an interlocutory appeal and, in accordance with his
determination, will either allow or disallow the appeal or modify the
ruling. If the presiding officer allows or disallows the appeal, his ruling
is final: Provided, however, That the Commission may, on its own motion,
dismiss an appeal allowed by the presiding officer on the ground that
objection to the ruling should be deferred and raised as an exception. In
the discretion of the presiding officer, the request for permission to file
appeal may be made orally, on the record of the proceeding. The request may
be disposed of orally.
(1) If an appeal is not allowed, or is dismissed by the Commission, or if
permission to file an appeal is not requested, objection to the ruling may
be raised on review of the initial decision.
(2) If an appeal is allowed and is considered on its merits, the disposition
on appeal is final. Objection to the ruling or to the action on appeal may
not be raised on review of the initial decision.
(3) If the presiding officer modifies the ruling, any party adversely
affected by the modified ruling may file a request for permission to file
appeal, pursuant to the provisions of this paragraph.
(c) Procedures, effective date. (1) Unless the presiding officer orders
otherwise, rulings made by him shall be effective when the order is released
or (if no written order) when the ruling is made. The Commission may stay
the effect of any ruling which comes before it for consideration on appeal.
(2) Appeals filed under paragraph (a) of this section shall be filed within
5 days after the order is released or (if no written order) after the ruling
is made. Appeals filed under paragraph (b) of this section shall be filed
within 5 days after the appeal is allowed.
(3) The appeal shall conform with the specifications set out in §1.49 and
shall be subscribed and verified as provided in §1.52.
(4) The appeal shall be served on parties to the proceeding (see §§1.47 and
1.211), and shall be filed with the Secretary, Federal Communications
Commission, Washington, D.C. 20554.
(5) The appeal shall not exceed 5 double-spaced typewritten pages.
(6) Appeals are acted on by the Commission.
(7) Oppositions and replies shall be served and filed in the same manner as
appeals and shall be served on appellant if he is not a party to the
proceeding. Oppositions shall be filed within 5 days after the appeal is
filed. Replies shall not be permitted, unless the Commission specifically
requests them. Oppositions shall not exceed 5 double-spaced typewritten
pages. Replies shall not exceed 5 double-spaced typewritten pages.
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 154,
303, 307)
[ 35 FR 17333 , Nov. 11, 1970, as amended at 40 FR 39509 , Aug. 28, 1975; 41 FR 14874 , Apr. 8, 1976; 41 FR 28789 , July 13, 1976; 46 FR 58682 , Dec. 3, 1981;
55 FR 36641 , Sept. 6, 1990; 62 FR 4171 , Jan. 29, 1997]
§ 1.302 Appeal from presiding officer's final ruling; effective date of
ruling.
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(a) If the presiding officer's ruling terminates a hearing proceeding, any
party to the proceeding, as a matter of right, may file an appeal from that
ruling within 30 days after the ruling is released.
(b) Any party who desires to preserve the right to appeal shall file a
notice of appeal within 10 days after the ruling is released. If a notice of
appeal is not filed within 10 days, the ruling shall be effective 30 days
after the ruling is released and within this period, may be reviewed by the
Commission on its own motion. If an appeal is not filed following notice of
appeal, the ruling shall be effective 50 days after the day of its release
and, within this period, may be reviewed by the Commission on its own
motion. If an appeal is filed, or if the Commission reviews the ruling on
its own motion, the effect of the ruling is further stayed pending the
completion of proceedings on appeal or review.
(c) The appeal shall conform with the specifications set out in §1.49 and
shall be subscribed and verified as provided in §1.52.
(d) The appeal shall be served on parties to the proceeding (see §§1.47 and
1.211), and shall be filed with the Secretary, Federal Communications
Commission, Washington, D.C. 20554.
(e) The appeal shall not exceed 25 double-spaced typewritten pages.
(f) The Commission will act on the appeal.
(g) Oppositions and replies shall be filed and served in the same manner as
the appeal. Oppositions to an appeal shall be filed within 15 days after the
appeal is filed. Replies to oppositions shall be filed within 10 days after
the opposition is filed and shall be limited to matters raised in the
oppositions. Oppositions shall not exceed 25 double-spaced typewritten
pages. Replies shall not exceed 10 double-spaced typewritten pages.
[ 35 FR 17333 , Nov. 11, 1970, as amended at 36 FR 7423 , Apr. 20, 1971; 62 FR 4171 , Jan. 29, 1997]
The Discovery and Preservation of Evidence
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Authority: Sections 1.311 through 1.325 are issued under secs. 4, 303,
409, 48 Stat., as amended, 1066, 1082, 1096; 47 U.S.C. 154, 303, 409, 5
U.S.C. 552.
§ 1.311 General.
top
Sections 1.311 through 1.325 provide for taking the deposition of any person
(including a party), for interrogatories to parties, and for orders to
parties relating to the production of documents and things and for entry
upon real property. These procedures may be used for the discovery of
relevant facts, for the production and preservation of evidence for use at
the hearing, or for both purposes.
(a) Applicability. For purposes of discovery, these proecdures may be used
in any case of adjudication (as defined in the Administrative Procedure Act)
which has been designated for hearing. For the preservation of evidence,
they may be used in any case which has been designated for hearing and is
conducted under the provisions of this subpart (see §1.201).
(b) Scope of examination. Persons and parties may be examined regarding any
matter, not privileged, which is relevant to the hearing issues, including
the existence, description, nature, custody, condition and location of any
books, documents, or other tangible things and the identity and location of
persons having knowledge of relevant facts. It is not ground for objection
to use of these procedures that the testimony will be inadmissible at the
hearing if the testimony sought appears reasonably calculated to lead to the
discovery of admissible evidence. The use of these procedures against the
Commission is subject to the following additional limitations:
(1) The informer's privilege shall encompass information which may lead to
the disclosure of an informer's identity.
(2) Commission personnel may not be questioned by deposition for the
purposes of discovery except on special order of the Commission, but may be
questioned by written interrogatories under §1.323. Interrogatories shall be
served on the appropriate Bureau Chief (see §1.21(b)). They will be answered
and signed by those personnel with knowledge of the facts. The answers will
be served by the Secretary of the Commission upon parties to the proceeding.
(3) Commission records are not subject to discovery under §1.325. The
inspection of Commission records is governed by the Freedom of Information
Act, as amended, and by §§0.451 through 0.467 of this chapter. Commission
employees may be questioned by written interrogatories regarding the
existence, nature, description, custody, condition and location of
Commission records, but may not be questioned concerning their contents
unless the records are available (or are made available) for inspection
under §§0.451 through 0.467. See §0.451(b)(5) of this chapter.
(4) Subject to paragraphs (b) (1) through (3) of this section, Commission
personnel may be questioned generally by written interrogatories regarding
the existence, description, nature, custody, condition and location of
relevant documents and things and regarding the identity and location of
persons having knowledge of relevant facts, and may otherwise only be
examined regarding facts of the case as to which they have direct personal
knowledge.
(c) Schedule for use of the procedures. (1) In comparative broadcast
proceedings involving applicants for only new facilities, discovery
commences with the release of the hearing designation order, and, in routine
cases, the discovery phase of the proceeding will be conducted in a manner
intended to conclude that portion of the case within 90 days of the release
of the designation order.
(2) In all other proceedings, except as provided by special order of the
presiding officer, discovery may be initiated before or after the prehearing
conference provided for in §1.248 of this part.
(3) In all proceedings, the presiding officer may at any time order the
parties or their attorneys to appear at a conference to consider the proper
use of these procedures, the time to be allowed for such use, and/or to hear
agrument and render a ruling on disputes that arise under these rules.
(d) Who shall act. Actions provided for in §§1.311 through 1.325 will, in
most cases, be taken by the officer designated to preside at the hearing
(see §1.241). If the proceeding, or a particular matter to which the action
relates, is before the Commission, a commissioner or panel of commissioners,
or the Chief Administrative Law Judge, the action will be taken by such
officer or body. The term presiding officer, as used in §§1.311 through
1.325 shall be understood to refer to the appropriate officer or body. See
§§0.341, 0.351, 0.365, and 1.271 of this chapter.
(e) Stipulations regarding the taking of depositions. If all of the parties
so stipulate in writing and if there is no interference to the conduct of
the proceeding, depositions may be taken before any person, at any time
(subject to the limitation below) or place, upon any notice and in any
manner, and when so taken may be used like other depositions. An original
and one copy of the stipulation shall be filed with the Secretary of the
Commission, and a copy of the stipulation shall be served on the presiding
officer, at least 3 days before the scheduled taking of the deposition.
[ 33 FR 463 , Jan. 12, 1968, as amended at 40 FR 39509 , Aug. 28, 1975; 47 FR 51873 , Nov. 18, 1982; 56 FR 794 , Jan. 9, 1991; 62 FR 4171 , Jan. 29, 1997]
§ 1.313 Protective orders.
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The use of the procedures set forth in §§1.311 through 1.325 of this part is
subject to control by the presiding officer, who may issue any order
consistent with the provisions of those sections which is appropriate and
just for the purpose of protecting parties and deponents or of providing for
the proper conduct of the proceeding. Whenever doing so would be conducive
to the efficient and expeditious conduct of the proceeding, the presiding
officer may convene a conference to hear argument and issue a ruling on any
disputes that may arise under these rules. The ruling, whether written or
delivered on the record at a conference, may specify any measures, including
the following to assure proper conduct of the proceeding or to protect any
party or deponent from annoyance, expense, embarassment or oppression:
(a) That depositions shall not be taken or that interrogatories shall not be
answered.
(b) That certain matters shall not be inquired into.
(c) That the scope of the examination or interrogatories shall be limited to
certain matters.
(d) That depositions may be taken only at some designated time or place, or
before an officer, other than that stated in the notice.
(e) That depositions may be taken only by written interrogatories or only
upon oral examination.
(f) That, after being sealed, the deposition shall be opened only by order
of the presiding officer.
[ 33 FR 463 , Jan. 12, 1968, as amended at 56 FR 794 , Jan. 9, 1991]
§ 1.315 Depositions upon oral examination—notice and preliminary procedure.
top
(a) Notice. A party to a hearing proceeding desiring to take the deposition
of any person upon oral examination shall give a minimum of 21 days notice
in writing to every other party, to the person to be examined, and to the
presiding officer. An original and three copies of the notice shall be filed
with the Secretary of the Commission. Related pleadings shall be served and
filed in the same manner. The notice shall contain the following
information:
(1) The name and address of each person to be examined, if known, and if the
name is not known, a general description sufficient to identify him or the
particular class or group to which he belongs.
(2) The time and place for taking the deposition of each person to be
examined, and the name or descriptive title and address of the officer
before whom the deposition is to be taken.
(3) The matters upon which each person will be examined. See §1.319.
(b) Responsive pleadings. (1) Within 7 days after service of the notice to
take depositions, a motion opposing the taking of depositions may be filed
by any party to the proceeding or by the person to be examined. See
§1.319(a).
(2) Within 14 days after service of the notice to take depositions, a
response to the opposition motion may be filed by any party to the
proceeding.
(3) Additional pleadings should not be filed and will not be considered.
(4) The computation of time provisions set forth in §1.4(g) shall not apply
to pleadings filed under the provisions of this paragraph.
(c) Protective order. On an opposition motion filed under paragraph (b) of
this section, or on his own motion, the presiding officer may issue a
protective order. See §1.313. A protective order issued by the presiding
officer on his own motion may be issued at any time prior to the date
specified in the notice for the taking of depositions.
(d) Authority to take depositions. (1) If an opposition motion is not filed
within 7 days after service of the notice to take depositions, and if the
presiding officer does not on his own motion issue a protective order prior
to the time specified in the notice for the taking of depositions, the
depositions described in the notice may be taken. An order for the taking of
depositions is not required.
(2) If an opposition motion is filed, the depositions described in the
notice shall not be taken until the presiding officer has acted on that
motion. If the presiding officer authorizes the taking of depositions, he
may specify a time, place or officer for taking them different from that
specified in the notice to take depositions.
(3) If the presiding officer issues a protective order, the depositions
described in the notice may be taken (if at all) only in accordance with the
provisions of that order.
(e) Broadcast comparative proceedings involving applicants for only new
facilities. In these cases, the 21-day advance notice provision of paragraph
(a) of this section shall be inapplicable to depositions of active and
passive owners of applicants in the proceeding. All applicants in such
proceedings should be prepared to make their active and passive owners
available for depositions during the period commencing with the deadline for
filing notices of appearance and ending 90 days after the release of the
designation order, if such depositions are requested by a party to the
proceeding. All such depositions will be conducted in Washington, DC or in
the community of license of the proposed station, at the deponent's option,
unless all parties agree to some other location.
[ 33 FR 10571 , July 25, 1968, as amended at 56 FR 794 , Jan. 9, 1991]
§ 1.316 Depositions upon written interrogatories—notice and preliminary
procedure.
top
(a) Service of interrogatories; notice. A party to the hearing proceeding
desiring to take the deposition of any person upon written interrogatories
shall serve the interrogatories upon every other party and shall give a
minimum of 35 days notice in writing to every other party and to the person
to be examined. An original and three copies of the interrogatories and the
notice (and of all related pleadings) shall be filed with the Secretary of
the Commission. A copy of the interrogatories and the notice (and of all
related pleadings) shall be served on the presiding officer. The notice
shall contain the following information:
(1) The name and address of each person to be examined, if known, and if the
name is not known, a general description sufficient to identify him or the
particular class or group to which he belongs.
(2) The time and place for taking the deposition of each person to be
examined, and the name or descriptive title and address of the officer
before whom the deposition is to be taken.
(3) The matters upon which each person will be examined. See §1.319.
(b) Additional interrogatories. Within 7 days after the filing and service
of the original interrogatories, any other party to the proceeding may, in
the same manner, file and serve additional interrogatories to be asked of
the same witness at the same time and place, with notice to the witness of
any additional matters upon which he will be examined.
(c) Cross interrogatories. Within 14 days after the filing and service of
the original interrogatories, any party to the proceeding may, in the same
manner, file and serve cross interrogatories, which shall be limited to
matters raised in the original or in the additional interrogatories.
(d) Responsive pleadings. (1) Within 21 days after service of the original
interrogatories, any party to the proceeding may move to limit or suppress
any original, additional or cross interrogatory, and the person to be
examined may file a motion opposing the taking of depositions. See
§1.319(a).
(2) Within 28 days after service of the original interrogatories, a response
to a motion to limit or suppress any interrogatory or to a motion opposing
the taking of depositions may be filed by any party to the proceeding.
(3) Additional pleadings should not be filed and will not be considered.
(e) Protective order. On a motion to limit or suppress or an opposition
motion filed under paragraph (d) of this section, or on his own motion, the
presiding officer may issue a protective order. See §1.313. A protective
order issued by the presiding officer on his own motion may be issued at any
time prior to the date specified in the notice for the taking of
depositions.
(f) Authority to take depositions. (1) If an opposition motion is not filed
within 21 days after service of the notice to take depositions, and if the
presiding officer does not on his own motion issue a protective order prior
to the time specified in the notice for the taking of depositions, the
depositions described in the notice may be taken. An order for the taking of
depositions is not required.
(2) If an opposition motion is filed, the depositions described in the
notice shall not be taken until the presiding officer has acted on that
motion. If the presiding officer authorizes the taking of depositions, he
may specify a time, place or officer for taking them different from that
specified in the notice to take depositions.
(3) If the presiding officer issues a protective order, the depositions
described in the notice may be taken (if at all) only in accordance with the
provisions of that order.
Note: The computation of time provisions of §1.4(g) shall not apply to
interrogatories and pleadings filed under the provisions of this section.
[ 33 FR 10571 , July 25, 1968]
§ 1.318 The taking of depositions.
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(a) Persons before whom depositions may be taken. Depositions shall be taken
before any judge of any court of the United States; any U.S. Commissioner;
any clerk of a district court; any chancellor, justice or judge of a supreme
or superior court; the mayor or chief magistrate of a city; any judge of a
county court, or court of common pleas of any of the United States; any
notary public, not being of counsel or attorney to any party, nor interested
in the event of the proceeding; or presiding officers, as provided in
§1.243.
(b) Attendance of witnesses. The attendance of witnesses at the taking of
depositions may be compelled by the use of subpena as provided in §§1.331
through 1.340.
(c) Oath; transcript. The officer before whom the deposition is to be taken
shall administer an oath or affirmation to the witness and shall personally,
or by someone acting under his direction and in his presence record the
testimony of the witness. The testimony may be taken stenographically or,
upon approval by the presiding officer, testimony may be taken through the
use of telephonically or electronically recorded methods, including
videotape. In the event these latter methods are used for the deposition,
the parties may agree to the waiver of the provisions of paragraphs (e) and
(f) as appropriate and as approved by the presiding officer.
(d) Examination. (1) In the taking of depositions upon oral examination, the
parties may proceed with examination and cross-examination of deponents as
permitted at the hearing. In lieu of participating in the oral examination,
parties served with the notice to take depositions may transmit written
interrogatories to the officer designated in the notice, who shall propound
them to the witness and record the answers verbatim.
(2) In the taking of depositions upon written interrogatories, the party who
served the original interrogatories shall transmit copies of all
interrogatories to the officer designated in the notice, who shall propound
them to the witness and record the answers verbatim.
(e) Submission of deposition to witness; changes; signing. When the
testimony is fully transcribed, the deposition of each witness shall be
submitted to him for examination and shall be read to or by him, unless such
examination and reading are waiver by the witness and by the parties. Any
changes in form or substance which the witness desires to make shall be
entered upon the deposition by the officer with a statement of the reasons
given by the witness for making them. The deposition shall then be signed by
the witness, unless the parties by stipulation waive the signing, or the
witness is ill, cannot be found, or refuses to sign. If the deposition is
not signed by the witness, the officer shall sign it and state on the record
the fact of the waiver, the illness or absence of the witness, or of his
refusal to sign, together with the reason (if any) given therefor; and the
deposition may then be used as fully as though signed, unless upon a motion
to suppress, the presiding officer holds that the reason given for the
refusal to sign requires rejection of the deposition in whole or in part.
(f) Certification of deposition and filing by officer; copies. The officer
shall certify on the deposition that the witness was duly sworn by him, that
the deposition is a true record of the testimony given by the witness, and
that said officer is not of counsel or attorney to either of the parties,
nor interested in the event of the proceeding or investigation. He shall
then securely seal the deposition in an envelope endorsed with the title of
the action and marked “Deposition of (here insert name of witness)” and
shall promptly send the original and two copies of the deposition and of all
exhibits, together with the notice and any interrogatories received by him,
by certified mail to the Secretary of the Commission.
[ 33 FR 463 , Jan. 12, 1968, as amended at 47 FR 51873 , Nov. 18, 1982]
§ 1.319 Objections to the taking of depositions.
top
(a) Objections to be made by motion prior to the taking of depositions. If
there is objection to the substance of any interrogatory or to examination
on any matter clearly covered by the notice to take depositions, the
objection shall be made in a motion opposing the taking of depositions or in
a motion to limit or suppress the interrogatory as provided in §§1.315(b)
and 1.316(d) and shall not be made at the taking of the deposition.
(b) Objections to be made at the taking of depositions. Errors and
irregularities occurring at the oral examination in the manner of taking the
deposition, in the form of the questions or answers, in the oath or
affirmation, or in the conduct of parties, and errors of any kind which
might be obviated, removed, or cured if promptly presented, are waived
unless reasonable objection thereto is made at the taking of the deposition.
If such objection is made, counsel shall, if possible, agree upon the
measures required to obviate, remove, or cure such errors. The measures
agreed upon shall be taken. If agreement cannot be reached, the objection
shall be noted on the deposition by the officer taking it, and the testimony
objected to shall be taken subject to the objection.
(c) Additional objections which may be made at the taking of depositions.
Objection may be made at the taking of depositions on the ground of
relevancy or privilege, if the notice to take depositions does not clearly
indicate that the witness is to be examined on the matters to which the
objection relates. See paragraph (a) of this section. Objection may also be
made on the ground that the examination is being conducted in such manner as
to unreasonably annoy, embarrass, or oppress a deponent or party.
(1) When there is objection to a line of questioning, as permitted by this
paragraph, counsel shall, if possible, reach agreement among themselves
regarding the proper limits of the examination.
(2) If counsel cannot agree on the proper limits of the examination the
taking of depositions shall continue on matters not objected to and counsel
shall, within 24 hours, either jointly or individually, telegraph statements
of their positions to the presiding officer, together with the telephone
numbers at which they and the officer taking the depositions can be reached,
or shall otherwise jointly confer with the presiding officer. If individual
statements are submitted, copies shall be provided to all counsel
participating in the taking of depositions.
(3) The presiding officer shall promptly rule upon the question presented or
take such other action as may be appropriate under §1.313, and shall give
notice of his ruling, by telephone, to counsel who submitted statements and
to the officer taking the depositions. The presiding officer shall
thereafter reduce his ruling to writing.
(4) The taking of depositions shall continue in accordance with the
presiding officer's ruling. Such rulings are not subject to appeal.
[ 33 FR 463 , Jan. 12, 1968]
§ 1.321 Use of depositions at the hearing.
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(a) No inference concerning the admissibility of a deposition in evidence
shall be drawn because of favorable action on the notice to take
depositions.
(b) Except as provided in this paragraph and in §1.319, objection may be
made at the hearing to receiving in evidence any deposition or part thereof
for any reason which would require the exclusion of the evidence if the
witness were then present and testifying.
(1) Objections to the competency of a witness, or the competency, relevancy
or materiality of testimony are waived by failure to make them before or
during the taking of depositions if (and only if) the ground of the
objection is one which might have been obviated or removed if presented at
that time.
(2) Objection on the ground of privilege is waived by failure to make it
before or during the taking of depositions.
(c) A party shall not be deemed to make a person his own witness for any
purpose by taking his deposition. The introduction in evidence of the
deposition or any part thereof for any purpose other than that of
contradicting or impeaching the deponent makes the deponent the witness of
the party introducing the deposition, but this shall not apply to the use by
an adverse party of a deposition as described in paragraph (d)(2) of this
section. At the hearing any party may rebut any relevant evidence contained
in a deposition whether introduced by him or by any other party.
(d) At the hearing (or in a pleading), any part or all of a deposition, so
far as admissible, may be used against any party who was present or
represented at the taking of the deposition or who had due notice thereof,
in accordance with any one of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting
or impeaching the testimony of deponent as a witness.
(2) The deposition of a party or of any one who at the time of taking the
deposition was an officer, director, or managing agent of a public or
private corporation, partnership or association which is a party may be used
by an adverse party for any purpose.
(3) To the extent that the affirmative direct case of a party is made in
writing pursuant to §1.248(d), the deposition of any witness, whether or not
a party, may be used by any party for any purpose, provided the witness is
made available for cross-examination. In all cases, the deposition of a
witness, whether or not a party, may be used by any party for any purpose if
the presiding officer finds: (i) That the witness is dead; or (ii) that the
witness is out of the United States, unless it appears that the absence of
the witness was procured by the party offering the deposition; or (iii) that
the witness is unable to attend or testify because of age, sickness,
infirmity, or imprisonment; or (iv) upon application and notice, that such
exceptional circumstances exist as to make it desirable in the interest of
justice and with due regard to the importance of presenting the testimony of
witnesses orally in open hearing, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party, an
adverse party may require him to introduce all of it which is relevant to
the part introduced, and any party may introduce any other parts.
(5) Substitution of parties does not affect the right to use depositions
previously taken; and, when an action in any hearing has been dismissed and
another action involving the same subject matter is afterward brought
between the same parties or their representatives or successors in interest,
all depositions lawfully taken and duly filed in the former action may be
used in the latter as if originally taken therefor.
[ 33 FR 463 , Jan. 12, 1968, as amended at 41 FR 14874 , Apr. 8, 1976]
§ 1.323 Interrogatories to parties.
top
(a) Interrogatories. Any party may serve upon any other party written
interrogatories to be answered in writing by the party served or, if the
party served is a public or private corporation or a partnership or
association, by any officer or agent, who shall furnish such information as
is available to the party. A copy of the interrogatories shall be served
upon all parties to the proceeding. An original and three copies of the
interrogatories, answers, and all related pleadings shall be filed with the
Secretary of the Commission. A copy of the interrogatories, answers and all
related pleadings shall be served on the presiding officer.
(1) Except as otherwise provided in a protective order, the number of
interrogatories or sets of interrogatories is not limited.
(2) Except as provided in such an order, interrogatories may be served after
a deposition has been taken, and a deposition may be sought after
interrogatories have been answered.
(b) Answers and objections. Each interrogatory shall be answered separately
and fully in writing under oath or affirmation, unless it is objected to, in
which event the reasons for objection shall be stated in lieu of an answer.
The answers shall be signed by the person making them, and the objections by
the attorney making them. The party upon whom the interrogatories were
served shall serve a copy of the answers and objections upon all parties to
the proceeding within 14 days after service of the interrogatories, or
within such shorter or longer period as the presiding officer may allow.
Answers may be used in the same manner as depositions of a party (see
§1.321(d)).
(c) Motion to compel an answer. Any party to the proceeding may, within 7
days, move for an order with respect to any objection or other failure to
answer an interrogatory. For purposes of this paragraph, an evasive or
incomplete answer is a failure to answer; and if the motion is based on the
assertion that the answer is evasive or incomplete, it shall contain a
statement as to the scope and detail of an answer which would be considered
responsive and complete. The party upon whom the interrogatories were served
may file a response within 7 days after the motion is filed, to which he may
append an answer or an amended answer. Additional pleadings should not be
submitted and will not be considered.
(d) Action by the presiding officer. If the presiding officer determines
that an objection is not justified, he shall order that the answer be
served. If an interrogatory has not been answered, the presiding officer may
rule that the right to object has been waived and may order that an answer
be served. If an answer does not comply fully with the requirements of this
section, the presiding officer may order that an amended answer be served,
may specify the scope and detail of the matters to be covered by the amended
answer, and may specify any appropriate procedural consequences (including
adverse findings of fact and dismissal with prejudice) which will follow
from the failure to make a full and responsive answer. If a full and
responsive answer is not made, the presiding officer may issue an order
invoking any of the procedural consequences specified in the order to compel
an answer.
(e) Appeal. As order to compel an answer is not subject to appeal.
[ 33 FR 10572 , July 25, 1968, as amended at 35 FR 17334 , Nov. 11, 1970]
§ 1.325 Discovery and production of documents and things for inspection,
copying, or photographing.
top
(a) A party to a Commission proceeding may request any other party except
the Commission to produce and permit inspection and copying or
photographing, by or on behalf of the requesting party, of any designated
documents, papers, books, accounts, letters, photographs, objects, or
tangible things which constitute or contain evidence within the scope of the
examination permitted by §1.311(b) of this part and which are in his
possession, custody, or control or to permit entry upon designated land or
other property in his possession or control for purposes of inspecting,
measuring, surveying, or photographing the property or any designated object
or operation thereon within the scope of the examination permitted by
§1.311(b) of this part.
(1) Such requests need not be filed with the presiding officer, but copies
of the request shall be served on all other parties to the proceeding.
(2) The party against whom the request was made must, within 10 days, comply
with the request or object to the request, claiming a privilege or raising
other proper objections. If the request is not complied with in whole or in
part, the requesting party may file a motion to compel production of
documents or access to property with the presiding officer. A motion to
compel must be accompanied by a copy of the original request and the
responding party's objection or claim of privilege. Motions to compel must
be filed within five business days of the objection or claim of privilege.
(3) In resolving any disputes involving the production of documents or
access to property, the presiding officer may direct that the materials
objected to be presented to him for in camera inspection.
(b) Any party seeking the production of Commission records should proceed
under §0.460 or §0.461 of this chapter. See §§0.451 through 0.467.
(c) In comparative broadcast proceedings involving applicants for only new
facilities, all applicants will serve the materials listed in the Standard
Document Production Order and the Standardized Integration Statement on all
other parties in the case that have filed Notices of Appearance. The
exchange of these materials must be accomplished within five days after the
date established for filing notices of appearance (see §1.221).
(1) Standard Document Production Order. The following documents must be
produced or objected to on grounds of privilege (Unless otherwise directed
by the presiding officer, copies of these documents should not be filed with
the presiding officer):
(i) All formation and organizational documents, including articles of
incorporation, by laws, partnership agreements, voting rights, proxies, and
any amendments to the foregoing documents;
(ii) All minutes of meetings relating to the application;
(iii) All documents relating to the rights or plans of persons or entities
to purchase an interest in the applicant or of current owners to alineate
their interests;
(iv) All documents relating to pledges, mortgages, security interests, or
other encumbrances of any kind with respect to the applicant;
(v) All bank letters and other financing documents with the dollar amounts
unexpurgated;
(vi) All documents relating to the applicant's proposed transmitter site;
(vii) All documents relating to communications by proposed integrated
principals with respect to their proposed participation in the management of
the station and the disposition of their current employment;
(viii) All documents relating to prior integration pledges made by
principals who propose to be integrated into the management of the station
at issue;
(ix) All documents relating to communications by and between principals of
the applicant concerning the application, including communications between
active and passive principals;
(x) Representative documents relating to enhancement credits and preferences
sought by the applicant's principals for local residence, civic
participation, past broadcast experience, minority/female status, and the
like;
(xi) All documents relating to commitments to divest other media interests;
and
(xii) All documents that identify or describe the principals who are
responsible for completing the application, arranging financing, obtaining
the applicant's transmitter site, publishing the required notices,
establishing the local public inspection file, and retaining lawyers,
engineers, and other professionals.
(2) Standardized Integration Statement. On the same day that documents are
exchanged pursuant to the Standardized Document Production Order, the
following information must also be provided by all applicants (Copies of
this statement should be filed with the presiding officer and served on all
parties to the proceeding that have filed Notices of Appearance):
(i) The ownership structure of the applicant, i.e., whether it is a
partnership, limited partnership, or a corporation (if a corporation,
indicate whether it has voting and non-voting stock);
(ii) The ownership percentage of each owner;
(iii) The identity of the owners who will work at the proposed station, what
titles and duties they will have, how many hours they will work per week,
and how they will reconcile any current business interests or employment
with that commitment to the station;
(iv) All other media interests held by the persons identified under
paragraph (c)(2)(ii), of this section;
(v) Whether the integrated owners will claim credit for minority or female
ownership and if so, specifically on what basis;
(vi) Whether the integrated owners will claim credit for local residence and
civic involvement in the city of license or service area and if so,
specifically on what basis (including a detailed chronology of past
residence and a description of civic activities and their duration);
(vii) Whether the integrated owners will claim credit for previous broadcast
experience and if so, provide a detailed list of the stations they worked
at, the titles and duties they had, and the years in which they were so
employed; and
(viii) Whether the applicant will claim a daytimer preference and if so,
specifically on what basis.
(3) Supplemental document production. Parties may request additional
relevant documents, not called for in the Standard Document Production
Order, at any time after the release of the designation order. Supplemental
requests for documents based on materials exchanged pursuant to the
Standardized Document Production Order and Standardized Integration
Statement must be filed no later than ten days after those standardized
exchanges. Other supplemental document requests must be filed no later than
ten days after receipt of the information on which those requests are based.
Supplemental document requests will be handled under the procedures
established in paragraph (a) of this section. To facilitate the resolution
of disputes concerning the production of documents, the presiding officer
may convene a pre-hearing conference to hear argument on and dispose of any
such disputes.
[ 33 FR 463 , Jan. 12, 1968, as amended at 40 FR 39509 , Aug. 28, 1975; 56 FR 794 , Jan. 9, 1991; 56 FR 25639 , June 5, 1991]
Subpenas
top
Authority: Sections 1.331 and 1.333 through 1.340 are issued under sec.
409, 48 Stat. 1096; 47 U.S.C. 409.
§ 1.331 Who may sign and issue.
top
Subpenas requiring the attendance and testimony of witnesses, and subpenas
requiring the production of any books, papers, schedules of charges,
contracts, agreements, and documents relating to any matter under
investigation or hearing, may be signed and issued as follows:
(a) Hearings before the Commission en banc, an individual commissioner, or a
panel of commissioners: By any commissioner participating in the conduct of
the hearing.
(b) Hearings before an administrative law judge: By the administrative law
judge or, in his absence, by the Chief Administrative Law Judge.
§ 1.333 Requests for issuance of subpena.
top
(a) Unless submitted on the record while a hearing is in progress, requests
for a subpena ad testificandum shall be submitted in writing.
(b) Requests for a subpena duces tecum shall be submitted in writing, duly
subscribed and verified, and shall specify with particularity the books,
papers, and documents desired and the facts expected to be proved thereby.
Where the subpena duces tecum request is directed to a nonparty to the
proceeding, the presiding officer may issue the same, upon request, without
an accompanying subpena to enforce a notice to take depositions, provided
for in paragraph (e) of this section, where it appears that the testimony of
said person is not required in connection with the subpena duces tecum.
(c) All requests for subpenas shall be supported by a showing of the general
relevance and materiality of the evidence sought.
(d) Requests for subpenas shall be submitted in triplicate, but need not be
served on the parties to the proceeding.
(e) Requests for issuance of a subpena ad testificandum to enforce a notice
to take depositions shall be submitted in writing. Such requests may be
submitted with the notice or at a later date. The request shall not be
granted until the period for the filing of motions opposing the taking of
depositions has expired or, if a motion has been filed, until that motion
has been acted on. Regardless of the time when the subpena request is
submitted, it need not be accompanied by a showing that relevant and
material evidence will be adduced, but merely that the person will be
examined regarding a nonprivileged matter which is relevant to the hearing
issues. The subpena request may ask that a subpena duces tecum be
contemporaneously issued commanding the person to whom it is directed to
produce designated books, papers, documents, or tangible things which
constitute or contain evidence relating to any of the matters within the
scope of the examination permitted by §1.311(b) but in that event the
subpena request will be subject to the provisions of §1.313 and paragraph
(b) of this section.
(f) Requests for issuance of a subpena duces tecum to enforce an order for
the production of documents and things for inspection and copying under
§1.325 may be submitted with the motion requesting the issuance of such an
order. Regardless of the time when the subpena request is submitted, it need
not be accompanied by a showing that relevant and material evidence will be
adduced, but merely that the documents and things to be examined contain
nonprivileged matter which is relevant to the subject matter of the
proceeding.
[ 28 FR 12425 , Nov. 22, 1963, as amended at 33 FR 466 , Jan. 12, 1968; 47 FR 51873 , Nov. 18, 1982]
§ 1.334 Motions to quash.
top
Any person against whom a subpena is directed may file a motion to quash or
limit the subpena, setting forth the reasons why the subpena should not be
complied with or why it should be limited in scope.
§ 1.335 Rulings.
top
Prompt notice, including a brief statement of the reasons therefor, will be
given of the denial, in whole or in part, of a request for subpena or of a
motion to quash.
§ 1.336 Service of subpenas.
top
(a) A subpena may be served by a United States marshal or his deputy, by
Commission personnel, or by any person who is not a party to the proceeding
and is not less than 18 years of age.
(b) Service of a subpena upon the person named therein shall be made by
exhibiting the original subpena to him, by reading the original subpena to
him if he is unable to read, by delivering the duplicate subpena to him, and
by tendering to him the fees for one day's attendance at the proceeding to
which he is summoned and the mileage allowed by law. If the subpena is
issued on behalf of the United States or an officer or agency thereof,
attendance fees and mileage need not be tendered.
§ 1.337 Return of service.
top
(a) If service of the subpena is made by a person other than a United States
marshal or his deputy such person shall make affidavit thereof, stating the
date, time, and manner of service.
(b) In case of failure to make service, the reasons for the failure shall be
stated on the original subpena by the person who attempted to make service.
(c) The original subpena, bearing or accompanied by the required return
affidavit or statement, shall be returned forthwith to the Secretary of the
Commission or, if so directed on the subpena, to the official before whom
the person named in the subpena is required to appear.
§ 1.338 Subpena forms.
top
(a) Subpena forms, marked “Original”, “Duplicate”, and “Triplicate”, and
bearing the Commission's seal, may be obtained from the Commission's Dockets
Division. These forms are to be completed and submitted with any request for
issuance of a subpena.
(b) If the request for issuance of a subpena is granted, the “Original” and
“Duplicate” copies of the subpena are returned to the person who submitted
the request. The “Triplicate” copy is retained for the Commission's files.
(c) The “Original” copy of the subpena includes a form for proof of service.
This form is to be executed by the person who effects service and returned
by him to the Secretary of the Commission or, if so directed on the subpena,
to the official before whom the person named in the subpena is required to
appear.
(d) The “Duplicate” copy of the subpena shall be served upon the person
named therein and retained by him. This copy should be presented in support
of any claim for witness fees or mileage allowances for testimony on behalf
of the Commission.
§ 1.339 Witness fees.
top
Witnesses who are subpenaed and respond thereto are entitled to the same
fees, including mileage, as are paid for like service in the courts of the
United States. Fees shall be paid by the party at whose instance the
testimony is taken.
§ 1.340 Attendance of witness; disobedience.
top
The attendance of witnesses and the production of documentary evidence may
be required from any place in the United States at any designated place of
hearing. In case of disobedience to a subpena, the Commission or any party
to a proceeding before the Commission may invoke the aid of any court of the
United States in requiring the attendance and testimony of witnesses and the
production of documentary evidence.
Evidence
top
§ 1.351 Rules of evidence.
top
Except as otherwise provided in this subpart, the rules of evidence
governing civil proceedings in matters not involving trial by jury in the
courts of the United States shall govern formal hearings. Such rules may be
relaxed if the ends of justice will be better served by so doing.
§ 1.352 Cumulative evidence.
top
The introduction of cumulative evidence shall be avoided, and the number of
witnesses that may be heard in behalf of a party on any issue may be
limited.
§ 1.353 Further evidence during hearing.
top
At any stage of a hearing, the presiding officer may call for further
evidence upon any issue and may require such evidence to be submitted by any
party to the proceeding.
§ 1.354 Documents containing matter not material.
top
If material and relevant matter offered in evidence is embraced in a
document containing other matter not material or relevant, and not intended
to be put in evidence, such document will not be received, but the party
offering the same shall present to other counsel, and to the presiding
officer, the original document, together with true copies of such material
and relevant matter taken therefrom, as it is desired to introduce. Upon
presentation of such matter, material and relevant, in proper form, it may
be received in evidence, and become a part of the record. Other counsel will
be afforded an opportunity to introduce in evidence, in like manner, other
portions of such document if found to be material and relevant.
§ 1.355 Documents in foreign language.
top
Every document, exhibit, or other paper written in a language other than
English, which shall be filed in any proceeding, or in response to any
order, shall be filed in the language in which it is written together with
an English translation thereof duly verified under oath to be a true
translation. Each copy of every such document, exhibit, or other paper filed
shall be accompanied by a separate copy of the translation.
§ 1.356 Copies of exhibits.
top
No document or exhibit, or part thereof, shall be received as, or admitted
in, evidence unless offered in duplicate. In addition, when exhibits of a
documentary character are to be offered in evidence, copies shall be
furnished to other counsel unless the presiding officer otherwise directs.
§ 1.357 Mechanical reproductions as evidence.
top
Unless offered for the sole purpose of attempting to prove or demonstrate
sound effect, mechanical or physical reproductions of sound waves shall not
be admitted in evidence. Any party desiring to offer any matter alleged to
be contained therein or thereupon shall have such matter typewritten on
paper of the size prescribed by §1.49, and the same shall be identified and
offered in duplicate in the same manner as other exhibits.
§ 1.358 Tariffs as evidence.
top
In case any matter contained in a tariff schedule on file with the
Commission is offered in evidence, such tariff schedule need not be produced
or marked for identification, but the matter so offered shall be specified
with particularity (tariff and page number) in such manner as to be readily
identified, and may be received in evidence by reference subject to check
with the original tariff schedules on file.
§ 1.359 Proof of official record; authentication of copy.
top
An official record or entry therein, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested by the
officer having legal custody of the record, or by his deputy, and
accompanied with a certificate that such officer has the custody. If the
office in which the record is kept is within the United States or within a
territory or insular possession subject to the dominion of the United
States, the certificate may be made by the judge of a court of record of the
district or political subdivision in which the record is kept, authenticated
by the seal of the court, or may be made by any public officer having a seal
of office having official duties in the district or political subdivision in
which the record is kept, authenticated by the seal of his office. If the
office in which the record is kept is in a foreign state or country, the
certificate may be made by a secretary of embassy or legation, consul
general, consul, vice consul, or consular agent, or by any officer in the
foreign service of the United States stationed in the foreign state or
country in which the record is kept, and authenticated by the seal of his
office.
§ 1.360 Proof of lack of record.
top
The absence of an official record or entry of a specified tenor in an
official record may be evidenced by a written statement signed by an
officer, or by his deputy, who would have custody of the official record, if
it existed, that after diligent search no record or entry of a specified
tenor is found to exist in the records of his office, accompanied by a
certificate as provided in §1.359. Such statement and certificate are
admissible as evidence that the records of his office contain no such record
or entry.
§ 1.361 Other proof of official record.
top
Sections 1.359 and 1.360 do not prevent the proof of official records or of
entry or lack of entry therein by any method authorized by any applicable
statute or by the rules of evidence at common law.
§ 1.362 Production of statements.
top
After a witness is called and has given direct testimony in a hearing, and
before he is excused, any party may move for the production of any statement
of such witness, or part thereof, pertaining to his direct testimony, in
possession of the party calling the witness, if such statement has been
reduced to writing and signed or otherwise approved or adopted by the
witness. Such motion shall be directed to the presiding officer. If the
party declines to furnish the statement, the testimony of the witness
pertaining to the requested statement shall be stricken.
[ 33 FR 466 , Jan. 12, 1968]
§ 1.363 Introduction of statistical data.
top
(a) All statistical studies, offered in evidence in common carrier hearing
proceedings, including but not limited to sample surveys, econometric
analyses, and experiments, and those parts of other studies involving
statistical methodology shall be described in a summary statement, with
supplementary details added in appendices so as to give a comprehensive
delineation of the assumptions made, the study plan utilized and the
procedures undertaken. In the case of sample surveys, there shall be a clear
description of the survey design, including the definition of the universe
under study, the sampling frame, and the sampling units; an explanation of
the method of selecting the sample and the characteristics measured or
counted. In the case of econometric investigations, the econometric model
shall be completely described and the reasons given for each assumption and
statistical specification. The effects on the final results of changes in
the assumptions should be made clear. When alternative models and variables
have been employed, a record shall be kept of these alternative studies, so
as to be available upon request. In the case of experimental analyses, a
clear and complete description of the experimental design shall be set
forth, including a specification of the controlled conditions and how the
controls were realized. In addition, the methods of making observations and
the adjustments, if any, to observed data shall be described. In the case of
every kind of statistical study, the following items shall be set forth
clearly: The formulas used for statistical estimates, standard errors and
test statistics, the description of statistical tests, plus all related
computations, computer programs and final results. Summary descriptions of
input data shall be submitted. Upon request, the actual input data shall be
made available.
(b) In the case of all studies and analyses offered in evidence in common
carrier hearing proceedings, other than the kinds described in paragraph (a)
of this section, there shall be a clear statement of the study plan, all
relevant assumptions and a description of the techniques of data collection,
estimation and/or testing. In addition, there shall be a clear statement of
the facts and judgments upon which conclusions are based and a statement of
the relative weights given to the various factors in arriving at each
conclusion, together with an indication of the alternative courses of action
considered. Lists of input data shall be made available upon request.
[ 35 FR 16254 , Oct. 16, 1970]
§ 1.364 Testimony by speakerphone.
top
(a) If all parties to the proceeding consent and the presiding officer
approves, the testimony of a witness may be taken by speakerphone.
(b) Documents used by the witness shall be made available to counsel by the
party calling the witness in advance of the speakerphone testimony. The
taking of testimony by speakerphone shall be subject to such other ground
rules as the parties may agree upon.
[ 43 FR 33251 , July 31, 1978]
Subpart C—Rulemaking Proceedings
top
Authority: 5 U.S.C. 553.
Source: 28 FR 12432 , Nov. 22, 1963, unless otherwise noted.
General
top
§ 1.399 Scope.
top
This subpart shall be applicable to notice and comment rulemakings
proceedings conducted under 5 U.S.C. 553, and shall have no application to
formal rulemaking (or rate making) proceedings unless the Commission directs
that it shall govern the conduct of a particular proceeding.
[ 42 FR 25735 , May 19, 1977]
§ 1.400 Definitions.
top
As used in this subpart, the term party refers to any person who
participates in a proceeding by the timely filing of a petition for rule
making, comments on a notice of proposed rule making, a petition for
reconsideration, or responsive pleadings in the manner prescribed by this
subpart. The term does not include those who submit letters, telegrams or
other informal materials.
[ 41 FR 1287 , Jan. 7, 1976]
Petitions and Related Pleadings
top
§ 1.401 Petitions for rulemaking.
top
(a) Any interested person may petition for the issuance, amendment or repeal
of a rule or regulation.
(b) The petition for rule making shall conform to the requirements of
§§1.49, 1.52, and 1.419(b) (or §1.420(e), if applicable), and shall be
submitted or addressed to the Secretary, Federal Communications Commission,
Washington, DC 20554, or may be submitted electronically.
(c) The petition shall set forth the text or substance of the proposed rule,
amendment, or rule to be repealed, together with all facts, views, arguments
and data deemed to support the action requested, and shall indicate how the
interests of petitioner will be affected.
(d) Petitions for amendment of the FM Table of Assignments (§73.202 of this
chapter) or the Television Table of Assignments (§73.606) shall be served by
petitioner on any Commission licensee or permittee whose channel assignment
would be changed by grant of the petition. The petition shall be accompanied
by a certificate of service on such licensees or permittees. Petitions to
amend the FM Table of Allotments must be accompanied by the appropriate
construction permit application and payment of the appropriate application
filing fee.
(e) Petitions which are moot, premature, repetitive, frivolous, or which
plainly do not warrant consideration by the Commission may be denied or
dismissed without prejudice to the petitioner.
[ 28 FR 12432 , Nov. 22, 1963, as amended at 28 FR 14503 , Dec. 31, 1963; 40 FR 53391 , Nov. 18, 1975; 45 FR 42621 , June 25, 1980; 63 FR 24125 , May 1, 1998;
71 FR 76215 , Dec. 20, 2006]
§ 1.403 Notice and availability.
top
All petitions for rule making (other than petitions to amend the FM,
Television, and Air-Ground Tables of Assignments) meeting the requirements
of §1.401 will be given a file number and, promptly thereafter, a “Public
Notice” will be issued (by means of a Commission release entitled “Petitions
for Rule Making Filed”) as to the petition, file number, nature of the
proposal, and date of filing, Petitions for rule making are available at the
Commission's Reference Information Center, 445 12th Street, SW, Washington,
DC and may also be available electronically over the Internet at
http://www.fcc.gov/.
[ 67 FR 13223 , Mar. 21, 2002]
§ 1.405 Responses to petitions; replies.
top
Except for petitions to amend the FM Television or Air-Ground Tables of
Assignments:
(a) Any interested person may file a statement in support of or in
opposition to a petition for rule making prior to Commission action on the
petition but not later than 30 days after “Public Notice”, as provided for
in §1.403, is given of the filing of such a petition. Such a statement shall
be accompanied by proof of service upon the petitioner on or prior to the
date of filing in conformity with §1.47 and shall conform in other aspects
with the requirements of §§1.49, 1.52, and 1.419(b).
(b) Any interested person may file a reply to statements in support of or in
opposition to a petition for rule making prior to Commission action on the
petition but not later than 15 days after the filing of such a statement.
Such a reply shall be accompanied by proof of service upon the party or
parties filing the statement or statements to which the reply is directed on
or prior to the date of filing in conformity with §1.47 and shall conform in
other aspects with the requirements of §§1.49, 1.52, and 1.419(b).
(c) No additional pleadings may be filed unless specifically requested by
the Commission or authorized by it.
(d) The Commission may act on a petition for rule making at any time after
the deadline for the filing of replies to statements in support of or in
opposition to the petition. Statements in support of or in opposition to a
petition for rule making, and replies thereto, shall not be filed after
Commission action.
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 154,
303, 307)
[ 28 FR 12413 , Nov. 22, 1963, as amended at 28 FR 14503 , Dec. 31, 1963; 45 FR 42621 , June 25, 1980; 46 FR 60404 , Dec. 9, 1981]
§ 1.407 Action on petitions.
top
If the Commission determines that the petition discloses sufficient reasons
in support of the action requested to justify the institution of a
rulemaking proceeding, and notice and public procedure thereon are required
or deemed desirable by the Commission, an appropriate notice of proposed
rule making will be issued. In those cases where notice and public procedure
thereon are not required, the Commission may issue a final order amending
the rules. In all other cases the petition for rule making will be denied
and the petitioner will be notified of the Commission's action with the
grounds therefor.
Rulemaking Proceedings
top
§ 1.411 Commencement of rulemaking proceedings.
top
Rulemaking proceedings are commenced by the Commission, either on it own
motion or on the basis of a petition for rulemaking. See §§1.401–1.407.
§ 1.412 Notice of proposed rulemaking.
top
(a) Except as provided in paragraphs (b) and (c) of this section, prior
notice of proposed rulemaking will be given.
(1) Notice is ordinarily given by publication of a “Notice of Proposed Rule
Making” in theFederal Register.A summary of the full decision adopted by the
Commission constitutes a “Notice of Proposed Rulemaking” for purposes
ofFederal Registerpublication.
(2) If all persons subject to the proposed rules are named, the proposal may
(in lieu of publication) be personally served upon those persons.
(3) If all persons subject to the proposed rules are named and have actual
notice of the proposal as a matter of law, further prior notice of proposed
rulemaking is not required.
(b) Rule changes (including adoption, amendment, or repeal of a rule or
rules) relating to the following matters will ordinarily be adopted without
prior notice:
(1) Any military, naval, or foreign affairs function of the United States.
(2) Any matter relating to Commission management or personnel or to public
property, loans, grants, benefits, or contracts.
(3) Interpretative rules.
(4) General statements of policy.
(5) Rules of Commission organization, procedure, or practice.
(c) Rule changes may in addition be adopted without prior notice in any
situation in which the Commission for good cause finds that notice and
public procedure are impracticable, unnecessary, or contrary to the public
interest. The finding of good cause and a statement of the basis for that
finding are in such situations published with the rule changes.
(d) In addition to the notice provisions of paragraph (a) of this section,
the Commission, before prescribing any requirements as to accounts, records,
or memoranda to be kept by carriers, will notify the appropriate State
agencies having jurisdiction over any carrier involved of the proposed
requirements.
[ 28 FR 12432 , Nov. 22, 1963, as amended at 51 FR 7445 , Mar. 4, 1986]
§ 1.413 Content of notice.
top
A notice of the proposed issuance, amendment, or repeal of a rule will
include the following:
(a) A statement of the time, nature and place of any public rulemaking
proceeding to be held.
(b) Reference to the authority under which the issuance, amendment or repeal
of a rule is proposed.
(c) Either the terms or substance of the proposed rule or a description of
the subjects and issues involved.
(d) The docket number assigned to the proceeding.
(e) A statement of the time for filing comments and replies thereto.
§ 1.415 Comments and replies.
top
(a) After notice of proposed rulemaking is issued, the Commission will
afford interested persons an opportunity to participate in the rulemaking
proceeding through submission of written data, views, or arguments, with or
without opportunity to present the same orally in any manner.
(b) A reasonable time will be provided for submission of comments in support
of or in opposition to proposed rules, and the time provided will be
specified in the notice of proposed rulemaking.
(c) A reasonable time will be provided for filing comments in reply to the
original comments, and the time provided will be specified in the notice of
proposed rulemaking.
(d) No additional comments may be filed unless specifically requested or
authorized by the Commission.
Note: In some (but not all) rulemaking proceedings, interested persons may
also communicate with the Commission and its staff on an ex parte basis,
provided certain procedures are followed. See §§1.420 and 1.1200 et seq. See
also __ FCC 2d __ (1980) (i.e., this order).
(e) For time limits for filing motions for extension of time for filing
responses to petitions for rulemaking, replies to such responses, comments
filed in response to notices of proposed rulemaking, replies to such
comments, see §1.46(b).
[ 28 FR 12432 , Nov. 22, 1963, as amended at 42 FR 28888 , June 6, 1977; 45 FR 45591 , July 7, 1980; 52 FR 37460 , Oct. 7, 1987]
§ 1.419 Form of comments and replies; number of copies.
top
(a) Comments, replies, and other documents filed in a rulemaking proceeding
shall conform to the requirements of §1.49.
(b) An original and 4 copies of all comments, briefs and other documents
filed in a rulemaking proceeding shall be furnished the Commission. The
distribution of such copies shall be as follows:
Secretary (original and 1) 2
Bureau 2
Reference Information Center 1
Total 5
Participants filing the required 5 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 2
Bureau 2
Reference Information Center 1
Total 10
However, 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 section 1.1206(a) of this chapter. Letters submitted to
Commissioners or Commission staff will be treated in the same way as
informal comments, as set forth above. Also such informal participants who
wish the responsible members of the staff and the Commissioners to have
personal copies may file an additional 7 copies. The distribution of such
copies shall be as follows:
Commissioners 5
Secretary 2
Bureau 2
Total 9
(c) Any person desiring to file identical documents in more than one
docketed rulemaking proceeding shall furnish the Commission two additional
copies of any such document for each additional docket. This requirement
does not apply if the proceedings have been consolidated.
(d) Participants that file comments and replies in electronic form need only
submit one copy of those comments, so long as the submission conforms to any
procedural or filing requirements established for formal electronic
comments.
(e) Comments and replies and other documents filed in electronic form by a
party represented by an attorney shall include the name and mailing address
of at least one attorney of record. Parties not represented by an attorney
that file comments and replies and other documents in electronic form shall
provide their name and mailing address.
[ 28 FR 12432 , Nov. 22, 1963, as amended at 41 FR 50399 , Nov. 16, 1976; 50 FR 26567 , June 27, 1985; 54 FR 29037 , July 11, 1989; 63 FR 24125 , May 1, 1998;
63 FR 56091 , Oct. 21, 1998; 67 FR 13223 , Mar. 21, 2002]
§ 1.420 Additional procedures in proceedings for amendment of the FM or TV
Tables of Allotments, or for amendment of certain FM assignments.
top
(a) Comments filed in proceedings for amendment of the FM Table of
Allotments (§73.202 of this chapter) or the Television Table of Allotments
(§73.606 of this chapter) which are initiated on a petition for rule making
shall be served on petitioner by the person who files the comments.
(b) Reply comments filed in proceedings for amendment of the FM or
Television Tables of Allotments shall be served on the person(s) who filed
the comments to which the reply is directed.
(c) Such comments and reply comments shall be accompanied by a certificate
of service.
(d) Counterproposals shall be advanced in initial comments only and will not
be considered if they are advanced in reply comments.
(e) An original and 4 copies of all petitions for rulemaking, comments,
reply comments, and other pleadings shall be filed with the Commission.
(f) Petitions for reconsideration and responsive pleadings shall be served
on parties to the proceeding and on any licensee or permittee whose
authorization may be modified to specify operation on a different channel,
and shall be accompanied by a certificate of service.
(g) The Commission may modify the license or permit of a UHF TV station to a
VHF channel in the same community in the course of the rule making
proceeding to amend §73.606(b), or it may modify the license or permit of an
FM station to another class of channel through notice and comment
procedures, if any of the following conditions are met:
(1) There is no other timely filed expression of interest, or
(2) If another interest in the proposed channel is timely filed, an
additional equivalent class of channel is also allotted, assigned or
available for application.
Note to Paragraph (g): In certain situations, a licensee or permittee may
seek an adjacent, intermediate frequency or co-channel upgrade by
application. See §73.203(b) of this chapter.
(h) Where licensees (or permittees) of television broadcast stations jointly
petition to amend §73.606(b) and to exchange channels, and where one of the
licensees (or permittees) operates on a commercial channel while the other
operates on a reserved noncommercial educational channel within the same
band, and the stations serve substantially the same market, then the
Commission may amend §73.606(b) and modify the licenses (or permits) of the
petitioners to specify operation on the appropriate channels upon a finding
that such action will promote the public interest, convenience, and
necessity.
Note 1 to paragraph(h): Licensees and permittees operating Class A FM
stations who seek to upgrade their facilities to Class B1, B, C3, C2, C1, or
C on Channel 221, and whose proposed 1 mV/m signal contours would overlap
the Grade B contour of a television station operating on Channel 6 must meet
a particularly heavy burden by demonstrating that grants of their upgrade
requests are in the public interest. In this regard, the Commission will
examine the record in rule making proceedings to determine the availability
of existing and potential non-commercial education service.
(i) In the course of the rule making proceeding to amend §73.202(b) or
§73.606(b), the Commission may modify the license or permit of an FM or
television broadcast station to specify a new community of license where the
amended allotment would be mutually exclusive with the licensee's or
permittee's present assignment.
(j) Whenever an expression of interest in applying for, constructing, and
operating a station has been filed in a proceeding to amend the FM or TV
Table of Allotments, and the filing party seeks to dismiss or withdraw the
expression of interest, either unilaterally or in exchange for financial
consideration, that party must file with the Commission a request for
approval of the dismissal or withdrawal, a copy of any written agreement
related to the dismissal or withdrawal, and an affidavit setting forth:
(1) A certification that neither the party withdrawing its interest nor its
principals has received or will receive any money or other consideration in
excess of legitimate and prudent expenses in exchange for the dismissal or
withdrawal of the expression of interest;
(2) The exact nature and amount of any consideration received or promised;
(3) An itemized accounting of the expenses for which it seeks reimbursement;
and
(4) The terms of any oral agreement related to the dismissal or withdrawal
of the expression of interest.
(5) In addition, within 5 days of a party's request for approval, each
remaining party to any written or oral agreement must submit an affidavit
setting forth:
(i) A certification that neither it nor its principals has paid or will pay
money or other consideration in excess of the legitimate and prudent
expenses of the party withdrawing its expression of interest; and
(ii) The terms of any oral agreement relating to the dismissal or withdrawal
of the expression of interest.
Note to §1.420: The reclassification of a Class C station in accordance with
the procedure set forth in Note 4 to §73.3573 may be initiated through the
filing of an original petition for amendment of the FM Table of Allotments.
The Commission will notify the affected Class C station licensee of the
proposed reclassification by issuing a notice of proposed rule making,
except that where a triggering petition proposes an amendment or amendments
to the FM Table of Allotments in addition to the proposed reclassification,
the Commission will issue an order to show cause as set forth in Note 4 to
§73.3573, and a notice of proposed rule making will be issued only after the
reclassification issue is resolved. Triggering petitions will be dismissed
upon the filing, rather than the grant, of an acceptable construction permit
application to increase antenna height to at least 451 meters HAAT by a
subject Class C station.
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 154,
303, 307)
[ 39 FR 44022 , Dec. 20, 1974, as amended at 40 FR 53391 , Nov. 18, 1975; 41 FR 1287 , Jan. 7, 1976; 51 FR 15629 , Apr. 25, 1986; 51 FR 20291 , June 4, 1986;
52 FR 8260 , Mar. 17, 1987; 52 FR 25866 , July 9, 1987; 54 FR 16366 , Apr. 24,
1989; 54 FR 26201 , June 22, 1989; 55 FR 28914 , July 16, 1990; 58 FR 38535 ,
July 19, 1993; 59 FR 59503 , Nov. 17, 1994; 61 FR 43472 , Aug. 23, 1996; 65 FR 79776 , Dec. 20, 2000; 71 FR 76215 , Dec. 20, 2006]
§ 1.421 Further notice of rulemaking.
top
In any rulemaking proceeding where the Commission deems it warranted, a
further notice of proposed rulemaking will be issued with opportunity for
parties of record and other interested persons to submit comments in
conformity with §§1.415 and 1.419.
§ 1.423 Oral argument and other proceedings.
top
In any rulemaking where the Commission determines that an oral argument,
hearing or any other type of proceeding is warranted, notice of the time,
place and nature of such proceeding will be published in theFederal
Register.
[ 58 FR 66300 , Dec. 20, 1993]
§ 1.425 Commission action.
top
The Commission will consider all relevant comments and material of record
before taking final action in a rulemaking proceeding and will issue a
decision incorporating its finding and a brief statement of the reasons
therefor.
§ 1.427 Effective date of rules.
top
(a) Any rule issued by the Commission will be made effective not less than
30 days from the time it is published in theFederal Registerexcept as
otherwise specified in paragraphs (b) and (c) of this section.
(b) For good cause found and published with the rule, any rule issued by the
Commission may be made effective within less than 30 days from the time it
is published in theFederal Register.Rules involving any military, naval or
foreign affairs function of the United States; matters relating to agency
management or personnel, public property, loans, grants, benefits or
contracts; rules granting or recognizing exemption or relieving restriction;
rules of organization, procedure or practice; or interpretative rules; and
statements of policy may be made effective without regard to the 30-day
requirement.
(c) In cases of alterations by the Commission in the required manner or form
of keeping accounts by carriers, notice will be served upon affected
carriers not less than 6 months prior to the effective date of such
alterations.
§ 1.429 Petition for reconsideration.
top
(a) Any interested person may petition for reconsideration of a final action
in a proceeding conducted under this subpart (see §§1.407 and 1.425). Where
the action was taken by the Commission, the petition will be acted on by the
Commission. Where action was taken by a staff official under delegated
authority, the petition may be acted on by the staff official or referred to
the Commission for action.
Note: The staff has been authorized to act on rulemaking proceedings
described in §1.420 and is authorized to make editorial changes in the rules
(see §0.231(d)).
(b) A petition for reconsideration which relies on facts which have not
previously been presented to the Commission will be granted only under the
following circumstances:
(1) The facts relied on relate to events which have occurred or
circumstances which have changed since the last opportunity to present them
to the Commission;
(2) The facts 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 in question prior
to such opportunity; or
(3) The Commission determines that consideration of the facts relied on is
required in the public interest.
(c) The petition for reconsideration shall state with particularity the
respects in which petitioner believes the action taken should be changed.
(d) The petition for reconsideration and any supplement thereto shall be
filed within 30 days from the date of public notice of such action, as that
date is defined in §1.4(b). No supplement to a petition for reconsideration
filed after expiration of the 30 day period will be considered, except upon
leave granted pursuant to a separate pleading stating the grounds for
acceptance of the supplement. The petition for reconsideration shall not
exceed 25 double-spaced typewritten pages. See also §1.49(f).
(e) Except as provided in §1.420(f), petitions for reconsideration need not
be served on parties to the proceeding. (However, where the number of
parties is relatively small, the Commission encourages the service of
petitions for reconsideration and other pleadings, and agreements among
parties to exchange copies of pleadings. See also §1.47(d) regarding
electronic service of documents.) When a petition for reconsideration is
timely filed in proper form, public notice of its filing is published in
theFederal Register.The time for filing oppositions to the petition runs
from the date of public notice. See §1.4(b).
(f) Oppositions to a petition for reconsideration shall be filed within 15
days after the date of public notice of the petition's filing and need be
served only on the person who filed the petition. See also §1.49(d).
Oppositions shall not exceed 25 double-spaced typewritten pages. See
§1.49(f).
(g) Replies to an opposition shall be filed within 10 days after the time
for filing oppositions has expired and need be served only on the person who
filed the opposition. Replies shall not exceed 10 double-spaced typewritten
pages. See also §§1.49(d) and 1.49(f).
(h) Petitions for reconsideration, oppositions and replies shall conform to
the requirements of §§1.49 and 1.52, except that they need not be verified.
Except as provided in §1.420(e), an original and 11 copies shall be
submitted to the Secretary, Federal Communications Commission, Washington,
D.C. 20554. 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 the petition. Its order will contain a concise statement of
the reasons for the action taken. Any order disposing of 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.
(j) The filing of a petition for reconsideration is not a condition
precedent to judicial review of any action taken by the Commission, except
where the person seeking such review was not a party to the proceeding
resulting in the action or relies on questions of fact or law upon which the
Commission has been afforded no opportunity to pass. Subject to the
provisions of paragraph (b) of this section, such a person may qualify to
seek judicial review by filing a petition for reconsideration.
(k) Without special order of the Commission, the filing of a petition for
reconsideration shall not excuse any person from complying with any rule or
operate in any manner to stay or postpone its enforcement. However, upon
good cause shown, the Commission will stay the effective date of a rule
pending a decision on a petition for reconsideration. See, however,
§1.420(f).
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 154,
303, 307)
[ 41 FR 1287 , Jan. 7, 1976, as amended at 44 FR 5436 , Jan. 26, 1979; 46 FR 18556 , Mar. 25, 1981; 52 FR 49161 , Dec. 30, 1987; 63 FR 24126 , May 1, 1998]
Inquiries
top
§ 1.430 Proceedings on a notice of inquiry.
top
The provisions of this subpart also govern proceedings commenced by issuing
a “Notice of Inquiry,” except that such proceedings do not result in the
adoption of rules, and Notices of Inquiry are not required to be published
in theFederal Register.
[ 51 FR 7445 , Mar. 4, 1986]
Subpart D—Broadcast Applications and Proceedings
top
Source: 44 FR 38483 , July 2, 1979, unless otherwise noted.
§ 1.502 Emergency Broadcast Authorizations.
top
See §73.913.
General Filing Requirements
top
§ 1.511 Applications required.
top
See §73.3511.
§ 1.512 Where to file; number of copies.
top
See §73.3512.
§ 1.513 Who may sign applications.
top
See §73.3513.
§ 1.514 Content of applications.
top
See §73.3514.
§ 1.516 Specification of facilities.
top
See §73.3516.
§ 1.517 Contingent applications.
top
See §73.3517.
§ 1.518 Inconsistent or conflicting applications.
top
See §73.3518.
§ 1.519 Repetitious applications.
top
See §73.3519.
§ 1.520 Multiple applications.
top
See §73.3520.
§ 1.522 Amendment of applications.
top
See §73.3522.
§ 1.525 Agreements between parties for amendment or dismissal of, or failure
to prosecute, broadcast applications.
top
See §73.3525.
§ 1.526 Records to be maintained locally for public inspection by commercial
applicants, permittees and licensees.
top
See §73.3526.
§ 1.527 Records to be maintained locally for public inspection by
noncommercial educational applicants, permittees and licensees.
top
See §73.3527.
§ 1.531 Formal and informal applications.
top
See §73.3511.
§ 1.533 Application forms for authority to construct a new station or make
changes in an existing station.
top
See §73.3533.
§ 1.534 Application for extension of construction permit or for construction
permit to replace expired construction permit.
top
See §73.3534.
§ 1.536 Application for license to cover construction permit.
top
See §73.3536.
§ 1.538 Application for modification of license.
top
See §73.3538.
§ 1.539 Application for renewal of license.
top
See §73.3539.
§ 1.540 Application for voluntary assignment or transfer of control.
top
See §73.3540.
§ 1.541 Application for involuntary assignment of license or transfer of
control.
top
See §73.3541.
§ 1.542 Application for temporary authorization.
top
See §73.3542.
§ 1.543 Application for renewal or modification of special service
authorization.
top
See §73.3543.
§ 1.544 Application for broadcast station to conduct field strength
measurements and for experimental operation.
top
See §§73.157 and 73.1510.
§ 1.545 Application for permit to deliver programs to foreign countries.
top
See §73.3545.
§ 1.546 Application to determine operating power by direct measurement of
antenna power.
top
See §73.45.
§ 1.549 Requests for extension of authority to operate without required
monitors, indicating instruments, and EBS Attention Signal devices.
top
See §73.3549.
§ 1.550 Requests for new or modified call sign assignments.
top
See §73.3550.
§ 1.561 Staff consideration of applications which receive action by the
Commission.
top
See §73.3561.
§ 1.562 Staff consideration of applications which do not require action by
the Commission.
top
See §73.3562.
§ 1.564 Acceptance of applications.
top
See §73.3564.
§ 1.566 Defective applications.
top
See §73.3566.
§ 1.568 Dismissal of applications.
top
See §73.3568.
§ 1.570 AM broadcast station applications involving other North American
countries.
top
See §73.3570.
§ 1.571 Processing AM broadcast station applications.
top
See §73.3571.
§ 1.572 Processing TV broadcast and translator station applications.
top
See §73.3572.
§ 1.573 Processing FM broadcast and translator station applications.
top
See §73.3573.
§ 1.574 Processing of international broadcast station applications.
top
See §73.3574.
§ 1.578 Amendments to applications for renewal, assignment or transfer of
control.
top
See §73.3578.
§ 1.580 Local public notice of filing of broadcast applications.
top
See §73.3580.
§ 1.584 Petitions to deny.
top
See §73.3584.
§ 1.587 Procedure for filing informal applications.
top
See §73.3587.
§ 1.591 Grants without hearing.
top
See §73.3591.
§ 1.592 Conditional grant.
top
See §73.3592.
§ 1.593 Designation for hearing.
top
See §73.3593.
§ 1.594 Local public notice of designation for hearing.
top
See §73.3594.
§ 1.597 Procedures on transfer and assignment applications.
top
See §73.3597.
§ 1.598 Period of construction.
top
See §73.3598.
§ 1.599 Forfeiture of construction permit.
top
See §73.3599.
§ 1.601 Simultaneous modification and renewal of license.
top
See §73.3601.
§ 1.603 Special waiver procedure relative to applications.
top
See §73.3603.
§ 1.605 Retention of applications in hearing status after designation for
hearing.
top
See §73.3605.
§ 1.612 Annual employment report.
top
See §73.3612.
§ 1.613 Filing of contracts.
top
See §73.3613.
§ 1.615 Ownership reports.
top
See §73.3615.
Subpart E—Complaints, Applications, Tariffs, and Reports Involving Common
Carriers
top
Source: 28 FR 12450 , Nov. 22, 1963, unless otherwise noted.
General
top
§ 1.701 Show cause orders.
top
(a) The Commission may commence any proceeding within its jurisdiction
against any common carrier by serving upon the carrier an order to show
cause. The order shall contain a statement of the particulars and matters
concerning which the Commission is inquiring and the reasons for such
action, and will call upon the carrier to appear before the Commission at a
place and time therein stated and give evidence upon the matters specified
in the order.
(b) Any carrier upon whom an order has been served under this section shall
file its answer within the time specified in the order. Such answer shall
specifically and completely respond to all allegations and matters contained
in the show cause order.
(c) All papers filed by a carrier in a proceeding under this section shall
conform with the specifications of §§1.49 and 1.50 and the subscription and
verification requirements of §1.52.
[ 28 FR 12450 , Nov. 22, 1963, as amended at 36 FR 7423 , Apr. 20, 1971]
§ 1.703 Appearances.
top
(a) Hearings. Except as otherwise required by §1.221 regarding application
proceedings, by §1.91 regarding proceedings instituted under section 312 of
the Communications Act of 1934, as amended, or by Commission order in any
proceeding, no written statement indicating intent to appear need be filed
in advance of actual appearance at any hearing by any person or his
attorney.
(b) Oral arguments. Within 5 days after release of an order designating an
initial decision for oral argument or within such other time as may be
specified in the order, any party who wishes to participate in the oral
argument shall file a written statement indicating that he will appear and
participate. Within such time as may be specified in an order designating
any other matter for oral argument, any person wishing to participate in the
oral argument shall file a written statement to that effect setting forth
the reasons for his interest in the matter. The Commission will advise him
whether he may participate. (See §1.277 for penalties for failure to file
appearance statements in proceedings involving oral arguments on initial
decisions.)
(c) Commission counsel. The requirement of paragraph (b) of this section
shall not apply to counsel representing the Commission or the Chief of the
Enforcement Bureau.
[ 28 FR 12450 , Nov. 22, 1963, as amended at 67 FR 13223 , Mar. 21, 2002]
Complaints
top
§ 1.711 Formal or informal complaints.
top
Complaints filed against carriers under section 208 of the Communications
Act may be either formal or informal.
Informal Complaints
top
§ 1.716 Form.
top
An informal complaint shall be in writing and should contain: (a) The name,
address and telephone number of the complaint, (b) the name of the carrier
against which the complaint is made, (c) a complete statement of the facts
tending to show that such carrier did or omitted to do anything in
contravention of the Communications Act, and (d) the specific relief of
satisfaction sought.
[ 51 FR 16039 , Apr. 30, 1986]
§ 1.717 Procedure.
top
The Commission will forward informal complaints to the appropriate carrier
for investigation. The carrier will, within such time as may be prescribed,
advise the Commission in writing, with a copy to the complainant, of its
satisfaction of the complaint or of its refusal or inability to do so. Where
there are clear indications from the carrier's report or from other
communications with the parties that the complaint has been satisfied, the
Commission may, in its discretion, consider a complaint proceeding to be
closed, without response to the complainant. In all other cases, the
Commission will contact the complainant regarding its review and disposition
of the matters raised. If the complainant is not satisfied by the carrier's
response and the Commission's disposition, it may file a formal complaint in
accordance with §1.721 of this part.
[ 51 FR 16039 , Apr. 30, 1986]
§ 1.718 Unsatisfied informal complaints; formal complaints relating back to
the filing dates of informal complaints.
top
When an informal complaint has not been satisfied pursuant to §1.717, the
complainant may file a formal complaint with this Commission in the form
specified in §1.721. Such filing will be deemed to relate back to the filing
date of the informal complaint: Provided, That the formal complaint: (a) Is
filed within 6 months from the date of the carrier's report, (b) makes
reference to the date of the informal complaint, and (c) is based on the
same cause of action as the informal complaint. If no formal complaint is
filed within the 6-month period, the complainant will be deemed to have
abandoned the unsatisfied informal complaint.
[ 51 FR 16040 , Apr. 30, 1986]
§ 1.719 Informal complaints filed pursuant to section 258.
top
(a) Notwithstanding the requirements of §§1.716 through 1.718, the following
procedures shall apply to complaints alleging that a carrier has violated
section 258 of the Communications Act of 1934, as amended by the
Telecommunications Act of 1996, by making an unauthorized change of a
subscriber's preferred carrier, as defined by §64.1100(e) of this chapter.
(b) Form. The complaint shall be in writing, and should contain: The
complainant's name, address, telephone number and e-mail address (if the
complainant has one); the name of both the allegedly unauthorized carrier,
as defined by §64.1100(d) of this chapter, and authorized carrier, as
defined by §64.1100(c) of this chapter; a complete statement of the facts
(including any documentation) tending to show that such carrier engaged in
an unauthorized change of the subscriber's preferred carrier; a statement of
whether the complainant has paid any disputed charges to the allegedly
unauthorized carrier; and the specific relief sought.
(c) Procedure. The Commission will resolve slamming complaints under the
definitions and procedures established in §§64.1100 through 64.1190 of this
chapter. The Commission will issue a written (or electronic) order informing
the complainant, the unauthorized carrier, and the authorized carrier of its
finding, and ordering the appropriate remedy, if any, as defined by
§§64.1160 through 64.1170 of this chapter.
(d) Unsatisfied Informal Complaints Involving Unauthorized Changes of a
Subscriber's Preferred Carrier; Formal Complaints Relating Back to the
Filing Dates of Informal Complaints. If the complainant is unsatisfied with
the resolution of a complaint under this section, the complainant may file a
formal complaint with the Commission in the form specified in §1.721. Such
filing will be deemed to relate back to the filing date of the informal
complaint filed under this section, so long as the informal complaint
complied with the requirements of paragraph (b) of this section and provided
that: The formal complaint is filed within 45 days from the date an order
resolving the informal complaint filed under this section is mailed or
delivered electronically to the complainant; makes reference to both the
informal complaint number assigned to and the initial date of filing the
informal complaint filed under this section; and is based on the same cause
of action as the informal complaint filed under this section. If no formal
complaint is filed within the 45–day period, the complainant will be deemed
to have abandoned its right to bring a formal complaint regarding the cause
of action at issue.
[ 65 FR 47690 , Aug. 3, 2000]
Formal Complaints
top
§ 1.720 General pleading requirements.
top
Formal complaint proceedings are generally resolved on a written record
consisting of a complaint, answer, and joint statement of stipulated facts,
disputed facts and key legal issues, along with all associated affidavits,
exhibits and other attachments. Commission proceedings may also require or
permit other written submissions such as briefs, written interrogatories,
and other supplementary documents or pleadings. Those formal complaint
proceedings handled on the Enforcement Bureau's Accelerated Docket are
subject to pleading and procedural rules that differ in some respects from
the general rules for formal complaint proceedings.
(a) Pleadings must be clear, concise, and explicit. All matters concerning a
claim, defense or requested remedy, including damages, should be pleaded
fully and with specificity.
(b) Pleadings must contain facts which, if true, are sufficient to
constitute a violation of the Act or Commission order or regulation, or a
defense to such alleged violation.
(c) Facts must be supported by relevant documentation or affidavit.
(d) Legal arguments must be supported by appropriate judicial, Commission,
or statutory authority.
(e) Opposing authorities must be distinguished.
(f) Copies must be provided of all non-Commission authorities relied upon
which are not routinely available in national reporting systems, such as
unpublished decisions or slip opinions of courts or administrative agencies.
(g) Parties are responsible for the continuing accuracy and completeness of
all information and supporting authority furnished in a pending complaint
proceeding. Information submitted, as well as relevant legal authorities,
must be current and updated as necessary and in a timely manner at any time
before a decision is rendered on the merits of the complaint.
(h) Specific reference shall be made to any tariff provision relied on in
support of a claim or defense. Copies of relevant tariffs or relevant
portions of tariffs that are referred to or relied upon in a complaint,
answer, or other pleading shall be appended to such complaint, answer, or
other pleading.
(i) All statements purporting to summarize or explain Commission orders or
policies must cite, in standard legal form, the Commission ruling upon which
such statements are based.
(j) Pleadings shall identify the name, address, telephone number, and
facsimile transmission number for either the filing party's attorney or,
where a party is not represented by an attorney, the filing party.
[ 53 FR 11852 , Apr. 11, 1988, as amended at 58 FR 25572 , Apr. 27, 1993; 63 FR 1035 , Jan. 7, 1998; 63 FR 41446 , Aug. 4, 1998; 64 FR 60725 , Nov. 8, 1999]
§ 1.721 Format and content of complaints.
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(a) Subject to paragraph (e) of this section governing supplemental
complaints filed pursuant to §1.722, and paragraph (f) of this section
governing Accelerated Docket proceedings, a formal complaint shall contain:
(1) The name of each complainant and defendant;
(2) The occupation, address and telephone number of each complainant and, to
the extent known, each defendant;
(3) The name, address, and telephone number of complainant's attorney, if
represented by counsel;
(4) Citation to the section of the Communications Act and/or order and/or
regulation of the Commission alleged to have been violated.
(5) A complete statement of facts which, if proven true, would constitute
such a violation. All material facts must be supported, pursuant to the
requirements of §1.720(c) and paragraph (a)(11) of this section, by relevant
affidavits and documentation, including copies of relevant written
agreements, offers, counter-offers, denials, or other related
correspondence. The statement of facts shall include a detailed explanation
of the manner and time period in which a defendant has allegedly violated
the Act, Commission order, or Commission rule in question, including a full
identification or description of the communications, transmissions,
services, or other carrier conduct complained of and the nature of any
injury allegedly sustained by the complainant. Assertions based on
information and belief are expressly prohibited unless made in good faith
and accompanied by an affidavit explaining the basis for the plaintiff's
belief and why the complainant could not reasonably ascertain the facts from
the defendant or any other source;
(6) Proposed findings of fact, conclusions of law, and legal analysis
relevant to the claims and arguments set forth in the complaint;
(7) The relief sought, including recovery of damages and the amount of
damages claimed, if known;
(8) Certification that the complainant has, in good faith, discussed or
attempted to discuss the possibility of settlement with each defendant prior
to the filing of the formal complaint. Such certification shall include a
statement that, prior to the filing of the complaint, the complainant mailed
a certified letter outlining the allegations that form the basis of the
complaint it anticipated filing with the Commission to the defendant carrier
or one of the defendant's registered agents for service of process that
invited a response within a reasonable period of time and a brief summary of
all additional steps taken to resolve the dispute prior to the filing of the
formal complaint. If no additional steps were taken, such certificate shall
state the reason(s) why the complainant believed such steps would be
fruitless;
(9) Whether a separate action has been filed with the Commission, any court,
or other government agency that is based on the same claim or same set of
facts, in whole or in part, or whether the complaint seeks prospective
relief identical to the relief proposed or at issue in a notice-and-comment
proceeding that is concurrently before the Commission;
(10) An information designation containing:
(i) The name, address, and position of each individual believed to have
firsthand knowledge of the facts alleged with particularity in the
complaint, along with a description of the facts within any such
individual's knowledge;
(ii) A description of all documents, data compilations and tangible things
in the complainant's possession, custody, or control, that are relevant to
the facts alleged with particularity in the complaint. Such description
shall include for each document:
(A) The date it was prepared, mailed, transmitted, or otherwise
disseminated;
(B) The author, preparer, or other source;
(C) The recipient(s) or intended recipient(s);
(D) Its physical location; and
(E) A description of its relevance to the matters contained in the
complaint; and
(iii) A complete description of the manner in which the complainant
identified all persons with information and designated all documents, data
compilations and tangible things as being relevant to the dispute,
including, but not limited to, identifying the individual(s) that conducted
the information search and the criteria used to identify such persons,
documents, data compilations, tangible things, and information;
(11) Copies of all affidavits, documents, data compilations and tangible
things in the complainant's possession, custody, or control, upon which the
complainant relies or intends to rely to support the facts alleged and legal
arguments made in the complaint;
(12) A completed Formal Complaint Intake Form;
(13) A declaration, under penalty of perjury, by the complainant or
complainant's counsel describing the amount, method, and date of the
complainant's payment of the filing fee required under §1.1106 and the
complainant's 10-digit FCC Registration Number, if any;
(14) A certificate of service; and
(15) A FCC Registration Number is required under Part 1, Subpart W.
Submission of a complaint without the FCC Registration Number as required by
Part 1, subpart W will result in dismissal of the complaint.
(b) The following format may be used in cases to which it is applicable,
with such modifications as the circumstances may render necessary:
Before the Federal Communications Commission, Washington, DC 20554
In the matter of
____________________
Complainant,
v.
____________________
Defendant.
File No. (To be inserted by the Enforcement Bureau)
Complaint
To: The Commission.
The complainant (here insert full name of each complainant and, if a
corporation, the corporate title of such complainant) shows that:
1. (Here state occupation, post office address, and telephone number of each
complainant).
2. (Here insert the name, occupation and, to the extent known, address and
telephone number of defendants).
3. (Here insert fully and clearly the specific act or thing complained of,
together with such facts as are necessary to give a full understanding of
the matter, including relevant legal and documentary support).
Wherefore, complainant asks (here state specifically the relief desired).
____________________
(Date)
____________________
(Name of each complainant)
____________________
(Name, address, and telephone number of attorney, if any)
(c) Where the complaint is filed pursuant to §47 U.S.C. §271(d)(6)(B), the
complainant shall clearly indicate whether or not it is willing to waive the
ninety-day resolution deadline contained within 47 U.S.C. 271(d)(6)(B), in
accordance with the requirements of §1.736.
(d) The complainant may petition the staff, pursuant to §1.3, for a waiver
of any of the requirements of this section. Such waiver may be granted for
good cause shown.
(e) Supplemental complaints. (1) Supplemental complaints filed pursuant to
§1.722 shall conform to the requirements set out in this section and §1.720,
except that the requirements in §§1.720(b), 1.721(a)(4), (a) (5), (a)(8),
(9), (a)(12), and (a)(13) shall not apply to such supplemental complaints;
(2) In addition, supplemental complaints filed pursuant to §1.722 shall
contain a complete statement of facts which, if proven true, would support
complainant's calculation of damages for each category of damages for which
recovery is sought. All material facts must be supported, pursuant to the
requirements of §1.720(c) and paragraph (a)(11) of this section, by relevant
affidavits and other documentation. The statement of facts shall include a
detailed explanation of the matters relied upon, including a full
identification or description of the communications, transmissions,
services, or other matters relevant to the calculation of damages and the
nature of any injury allegedly sustained by the complainant. Assertions
based on information and belief are expressly prohibited unless made in good
faith and accompanied by an affidavit explaining the basis for the
complainant's belief and why the complainant could not reasonably ascertain
the facts from the defendant or any other source;
(3) Supplemental complaints filed pursuant to §1.722 shall contain a
certification that the complainant has, in good faith, discussed or
attempted to discuss the possibility of settlement with respect to damages
for which recovery is sought with each defendant prior to the filing of the
supplemental complaint. Such certification shall include a statement that,
no later than 30 days after the release of the liability order, the
complainant mailed a certified letter to the primary individual who
represented the defendant carrier during the initial complaint proceeding
outlining the allegations that form the basis of the supplemental complaint
it anticipates filing with the Commission and inviting a response from the
carrier within a reasonable period of time. The certification shall also
contain a brief summary of all additional steps taken to resolve the dispute
prior to the filing of the supplemental complaint. If no additional steps
were taken, such certification shall state the reason(s) why the complainant
believed such steps would be fruitless.
(f) Complaints on the Accelerated Docket. For the purpose of this paragraph
(e), the term document also shall include data compilations and tangible
things.
(1) Formal complaints that have been accepted onto the Accelerated Docket
shall conform to the requirements set out in this section with the following
listed exceptions:
(i) The requirement in §1.720(c) and paragraphs (a)(5) and (a)(11) of this
section that factual assertions be supported by affidavit shall not apply to
complaints on the Accelerated Docket. Nevertheless, allegations of material
fact, whether based on personal knowledge or information and belief, that
cannot be supported by documentation remain subject to the provisions of
§1.52.
(ii) Complaints on the Accelerated Docket are not required to include
proposed findings of fact, conclusions of law, and legal analysis relevant
to the claims and arguments set forth in the complaint, as required in
paragraph (a)(6) of this section. Nevertheless, complaints on the
Accelerated Docket shall fully set out the facts and legal theories on which
the complainant premises its claims.
(iii) In light of the requirement for staff-supervised settlement
negotiations in §1.730(b), complaints on the Accelerated Docket are not
required to include a certification that the complainant has discussed or
attempted to discuss the possibility of settlement with each defendant, as
required in paragraph (a)(8) of this section.
(iv) In light of the automatic document production required in §1.729(i)(1),
complaints on the Accelerated Docket are not required to include a
description of all relevant documents in the complainant's possession,
custody or control, as required in paragraph (a)(10)(ii) of this section.
(v) Complaints on the Accelerated Docket are not required to provide the
description, required in paragraph (a)(10)(iii) of this section, of the
manner in which the complainant identified persons with knowledge of, and
documents relevant to, the dispute.
(2) Formal complaints that have been accepted onto the Accelerated Docket
will comply with the following requirements in addition to those
requirements generally applicable in formal complaint proceedings:
(i) As required in §1.729(i)(1), complaints on the Accelerated Docket shall
be accompanied, when served on defendants, by copies of documents, within
the complainant's possession, custody or control, that are likely to bear
significantly on the issues raised in the complaint. Unless otherwise
directed, these documents shall not be filed with the Commission.
(ii) Complaints on the Accelerated Docket will bear the following notation
in bold typeface above the normal caption on the first page: “Accelerated
Docket Proceeding: Answer Due Within Ten Days of Service Date.”
[ 53 FR 11853 , Apr. 11, 1988, as amended at 63 FR 1035 , Jan. 7, 1998; 63 FR 41446 , Aug. 4, 1998; 64 FR 60725 , Nov. 8, 1999; 66 FR 16616 , Mar. 27, 2001;
66 FR 47895 , Sept. 14, 2001; 69 FR 41130 , July 7, 2004]
§ 1.722 Damages.
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(a) If a complainant wishes to recover damages, the complaint must contain a
clear and unequivocal request for damages.
(b) If a complainant wishes a determination of damages to be made in the
same proceeding as the determinations of liability and prospective relief,
the complaint must contain the allegations and information required by
paragraph (h) of this section.
(c) Notwithstanding paragraph (b) of this section, in any proceeding to
which no statutory deadline applies, if the Commission decides that a
determination of damages would best be made in a proceeding that is separate
from and subsequent to the proceeding in which the determinations of
liability and prospective relief are made, the Commission may at any time
order that the initial proceeding will determine only liability and
prospective relief, and that a separate, subsequent proceeding initiated in
accordance with paragraph (e) of this section will determine damages.
(d) If a complainant wishes a determination of damages to be made in a
proceeding that is separate from and subsequent to the proceeding in which
the determinations of liability and prospective relief are made, the
complainant must:
(1) Comply with paragraph (a) of this section, and
(2) State clearly and unequivocally that the complainant wishes a
determination of damages to be made in a proceeding that is separate from
and subsequent to the proceeding in which the determinations of liability
and prospective relief will be made.
(e) If a complainant proceeds pursuant to paragraph (d) of this section, or
if the Commission invokes its authority under paragraph (c) of this section,
the complainant may initiate a separate proceeding to obtain a determination
of damages by filing a supplemental complaint that complies with §1.721(e)
and paragraph (h) of this section within sixty days after public notice (as
defined in §1.4(b) of this chapter) of a decision that contains a finding of
liability on the merits of the original complaint.
(f) If a complainant files a supplemental complaint for damages in
accordance with paragraph (e) of this section, the supplemental complaint
shall be deemed, for statutory limitations purposes, to relate back to the
date of the original complaint.
(g) Where a complainant chooses to seek the recovery of damages upon a
supplemental complaint in accordance with the requirements of paragraph (e)
of this section, the Commission will resolve the separate, preceding
liability complaint within any applicable complaint resolution deadlines
contained in the Act.
(h) In all cases in which recovery of damages is sought, it shall be the
responsibility of the complainant to include, within either the complaint or
supplemental complaint for damages filed in accordance with paragraph (e) of
this section, either:
(1) A computation of each and every category of damages for which recovery
is sought, along with an identification of all relevant documents and
materials or such other evidence to be used by the complainant to determine
the amount of such damages; or
(2) An explanation of:
(i) The information not in the possession of the complaining party that is
necessary to develop a detailed computation of damages;
(ii) Why such information is unavailable to the complaining party;
(iii) The factual basis the complainant has for believing that such evidence
of; damages exists;
(iv) A detailed outline of the methodology that would be used to create a
computation of damages with such evidence.
(i) Where a complainant files a supplemental complaint for damages in
accordance with paragraph (e) of this section, the following procedures may
apply:
(1) Issues concerning the amount, if any, of damages may be either
designated by the Enforcement Bureau for hearing before, or, if the parties
agree, submitted for mediation to, a Commission Administrative Law Judge.
Such Administrative Law Judge shall be chosen in the following manner:
(i) By agreement of the parties and the Chief Administrative Law Judge; or
(ii) In the absence of such agreement, the Chief Administrative Law Judge
shall designate the Administrative Law Judge.
(2) The Commission may, in its discretion, order the defendant either to
post a bond for, or deposit into an interest bearing escrow account, a sum
equal to the amount of damages which the Commission finds, upon preliminary
investigation, is likely to be ordered after the issue of damages is fully
litigated, or some lesser sum which may be appropriate, provided the
Commission finds that the grant of this relief is favored on balance upon
consideration of the following factors:
(i) The complainant's potential irreparable injury in the absence of such
deposit;
(ii) The extent to which damages can be accurately calculated;
(iii) The balance of the hardships between the complainant and the
defendant; and
(iv) Whether public interest considerations favor the posting of the bond or
ordering of the deposit.
(3) The Commission may, in its discretion, suspend ongoing damages
proceedings for fourteen days, to provide the parties with a time within
which to pursue settlement negotiations and/or alternative dispute
resolution procedures.
(4) The Commission may, in its discretion, end adjudication of damages with
a determination of the sufficiency of a damages computation method or
formula. No such method or formula shall contain a provision to offset any
claim of the defendant against the complainant. The parties shall negotiate
in good faith to reach an agreement on the exact amount of damages pursuant
to the Commission-mandated method or formula. Within thirty days of the
release date of the damages order, parties shall submit jointly to the
Commission either:
(i) A statement detailing the parties' agreement as to the amount of
damages;
(ii) A statement that the parties are continuing to negotiate in good faith
and a request that the parties be given an extension of time to continue
negotiations; or
(iii) A statement detailing the bases for the continuing dispute and the
reasons why no agreement can be reached.
(j) Except where otherwise indicated, the rules governing initial formal
complaint proceedings govern supplemental formal complaint proceedings, as
well.
[ 66 FR 16616 , Mar. 27, 2001]
§ 1.723 Joinder of complainants and causes of action.
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(a) Two or more complainants may join in one complaint if their respective
causes of action are against the same defendant and concern substantially
the same facts and alleged violation of the Communications Act.
(b) Two or more grounds of complaint involving the same principle, subject,
or statement of facts may be included in one complaint, but should be
separately stated and numbered.
[ 53 FR 11853 , Apr. 11, 1988]
§ 1.724 Answers.
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(a) Subject to paragraph (k) of this section governing Accelerated Docket
proceedings, any carrier upon which a copy of a formal complaint is served
shall answer such complaint in the manner prescribed under this section
within twenty days of service of the formal complaint by the complainant,
unless otherwise directed by the Commission.
(b) The answer shall advise the complainant and the Commission fully and
completely of the nature of any defense, and shall respond specifically to
all material allegations of the complaint. Every effort shall be made to
narrow the issues in the answer. The defendant shall state concisely its
defense to each claim asserted, admit or deny the averments on which the
complainant relies, and state in detail the basis for admitting or denying
such averment. General denials are prohibited. Denials based on information
and belief are expressly prohibited unless made in good faith and
accompanied by an affidavit explaining the basis for the defendant's belief
and why the defendant could not reasonably ascertain the facts from the
complainant or any other source. If the defendant is without knowledge or
information sufficient to form a belief as to the truth of an averment, the
defendant shall so state and this has the effect of a denial. When a
defendant intends in good faith to deny only part of an averment, the
defendant shall specify so much of it as is true and shall deny only the
remainder. The defendant may deny the allegations of the complaint as
specific denials of either designated averments or paragraphs.
(c) The answer shall contain proposed findings of fact, conclusions of law,
and legal analysis relevant to the claims and arguments set forth in the
answer.
(d) Averments in a complaint or supplemental complaint filed pursuant to
§1.722 are deemed to be admitted when not denied in the answer.
(e) Affirmative defenses to allegations contained in the complaint shall be
specifically captioned as such and presented separately from any denials
made in accordance with paragraph (c) of this section.
(f) The answer shall include an information designation containing:
(1) The name, address, and position of each individual believed to have
firsthand knowledge of the facts alleged with particularity in the answer,
along with a description of the facts within any such individual's
knowledge;
(2) A description of all documents, data compilations and tangible things in
the defendant's possession, custody, or control, that are relevant to the
facts alleged with particularity in the answer. Such description shall
include for each document:
(i) The date it was prepared, mailed, transmitted, or otherwise
disseminated;
(ii) The author, preparer, or other source;
(iii) The recipient(s) or intended recipient(s);
(iv) Its physical location; and
(v) A description of its relevance to the matters in dispute.
(3) A complete description of the manner in which the defendant identified
all persons with information and designated all documents, data compilations
and tangible things as being relevant to the dispute, including, but not
limited to, identifying the individual(s) that conducted the information
search and the criteria used to identify such persons, documents, data
compilations, tangible things, and information;
(g) The answer shall attach copies of all affidavits, documents, data
compilations and tangible things in the defendant's possession, custody, or
control, upon which the defendant relies or intends to rely to support the
facts alleged and legal arguments made in the answer.
(h) The answer shall contain certification that the defendant has, in good
faith, discussed or attempted to discuss, the possibility of settlement with
the complainant prior to the filing of the formal complaint. Such
certification shall include a brief summary of all steps taken to resolve
the dispute prior to the filing of the formal complaint. If no such steps
were taken, such certificate shall state the reason(s) why the defendant
believed such steps would be fruitless;
(i) Where the complaint is filed pursuant to 47 U.S.C. 271(d)(6)(B), the
defendant shall clearly indicate its willingness to waive the 90-day
resolution deadline contained within 47 U.S.C. 271(d)(6)(B), in accordance
with the requirements of §1.736.
(j) The defendant may petition the staff, pursuant to §1.3, for a waiver of
any of the requirements of this section. Such waiver may be granted for good
cause shown.
(k) Accelerated Docket Proceedings. For the purpose of this paragraph (k),
the term document also shall include data compilations and tangible things.
(1) Any party named as a defendant in an Accelerated Docket formal complaint
shall answer such complaint in the manner prescribed under this section
within ten days of service of the complaint by the complainant, unless
otherwise directed by the Commission. Except as set forth in this paragraph
(k), answers in Accelerated Docket proceedings shall comply with the
requirements of this section.
(2) The requirement in §1.720(c) and paragraph (g) of this section that
factual assertions be supported by affidavit shall not apply to answers in
Accelerated Docket proceedings. Nevertheless, allegations of material fact,
whether based on personal knowledge or information and belief, that cannot
be supported by documentation remain subject to the provisions of §1.52.
(3) Answers on the Accelerated Docket are not required to include proposed
findings of fact, conclusions of law, and legal analysis relevant to the
defenses and arguments set forth in the answer, as required in paragraph (c)
of this section. Nevertheless, answers on the Accelerated Docket shall fully
set out the facts and legal theories on which the defendant premises its
defenses.
(4) In light of the requirement for staff-supervised settlement negotiations
required in §1.730(b), answers on the Accelerated Docket are not required to
include a certification that the defendant has discussed, or attempted to
discuss, the possibility of settlement with the complainant, as required in
paragraph (h) of this section.
(5) As required in §1.729(i)(1), answers on the Accelerated Docket shall be
accompanied, when served on complainants, by copies of documents, within the
defendant's possession, custody or control, that are likely to bear
significantly on the issues raised in the proceeding. Unless otherwise
directed, these documents shall not be filed with the Commission. In light
of this automatic document production requirement, answers on the
Accelerated Docket are not required to include a description of all relevant
documents in the defendant's possession, custody or control, as required in
paragraph (f)(2) of this section.
(6) Answers on the Accelerated Docket are not required to provide the
description, required in paragraph (f)(3) of this section, of the manner in
which the defendant identified persons with knowledge of, and documents
relevant to, the dispute.
(7) In Accelerated Docket proceedings, the defendant, as required in
§1.729(i)(1), shall serve, contemporaneously with its answer, the
complainant(s) with copies of documents, within the defendant's possession,
custody or control, that are likely to bear significantly on the issues
raised in the complaint and/or the answer.
[ 53 FR 11853 , Apr. 11, 1988, as amended at 58 FR 25572 , Apr. 27, 1993; 63 FR 1037 , Jan. 7, 1998; 63 FR 41446 , Aug. 4, 1998; 66 FR 16617 , Mar. 27, 2001]
§ 1.725 Cross-complaints and counterclaims.
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Cross-complaints seeking any relief within the jurisdiction of the
Commission against any carrier that is a party (complainant or defendant) to
that proceeding are expressly prohibited. Any claim that might otherwise
meet the requirements of a cross-complaint may be filed as a separate
complaint in accordance with §§1.720 through 1.736. For purposes of this
subpart, the term “cross-complaint” shall include counterclaims.
[ 63 FR 1037 , Jan. 7, 1998]
§ 1.726 Replies.
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(a) Subject to paragraph (g) of this section governing Accelerated Docket
proceedings, within three days after service of an answer containing
affirmative defenses presented in accordance with the requirements of
§1.724(e), a complainant may file and serve a reply containing statements of
relevant, material facts and legal arguments that shall be responsive to
only those specific factual allegations and legal arguments made by the
defendant in support of its affirmative defenses. Replies which contain
other allegations or arguments will not be accepted or considered by the
Commission.
(b) Failure to reply to an affirmative defense shall be deemed an admission
of such affirmative defense and of any facts supporting such affirmative
defense that are not specifically contradicted in the complaint.
(c) The reply shall contain proposed findings of fact, conclusions of law,
and legal analysis relevant to the claims and arguments set forth in the
reply.
(d) The reply shall include an information designation containing:
(1) The name, address and position of each individual believed to have
firsthand knowledge about the facts alleged with particularity in the reply,
along with a description of the facts within any such individual's
knowledge.
(2) A description of all documents, data compilations and tangible things in
the complainant's possession, custody, or control that are relevant to the
facts alleged with particularity in the reply. Such description shall
include for each document:
(i) The date prepared, mailed, transmitted, or otherwise disseminated;
(ii) The author, preparer, or other source;
(iii) The recipient(s) or intended recipient(s);
(iv) Its physical location; and
(v) A description of its relevance to the matters in dispute.
(3) A complete description of the manner in which the complainant identified
all persons with information and designated all documents, data compilations
and tangible things as being relevant to the dispute, including, but not
limited to, identifying the individual(s) that conducted the information
search and the criteria used to identify such persons, documents, data
compilations, tangible things, and information;
(e) The reply shall attach copies of all affidavits, documents, data
compilations and tangible things in the complainant's possession, custody,
or control upon which the complainant relies or intends to rely to support
the facts alleged and legal arguments made in the reply.
(f) The complainant may petition the staff, pursuant to §1.3, for a waiver
of any of the requirements of this section. Such waiver may be granted for
good cause shown.
(g) Accelerated Docket Proceedings. For the purpose of this paragraph (g),
the term document also shall include data compilations and tangible things.
(1) The filing of a separate pleading to reply to affirmative defenses is
not permitted in Accelerated Docket proceedings. Complainants in such
proceedings may include, in the §1.733(i)(4) pre-status-conference filing,
those statements that otherwise would have been the subject of a reply.
(2) In Accelerated Docket proceedings, the failure to reply, in the
pre-status-conference filing, to an affirmative defense shall be deemed an
admission of such affirmative defense and of any facts supporting such
affirmative defense that are not specifically contradicted in the complaint.
(3) If a complainant replies to an affirmative defense in its §1.733(i)(4),
pre-status-conference filing, it shall include in that filing the
information, required by paragraph (d)(1) of this section, identifying
individuals with firsthand knowledge of the facts alleged in the reply.
(4) An Accelerated Docket complainant that replies to an affirmative defense
in its §1.733(i)(4), pre-status-conference filing also shall serve on the
defendant, at the same time as that filing, those documents in the
complainant's possession, custody or control that were not previously
produced to the defendant and that are likely to bear significantly on the
issues raised in the reply. Such a complainant is not required to comply
with the remainder of the requirements in paragraphs (d) and (e) of this
section.
[ 63 FR 1037 , Jan. 7, 1998, as amended at 63 FR 41447 , Aug. 4, 1998; 66 FR 16617 , Mar. 27, 2001]
§ 1.727 Motions.
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(a) A request to the Commission for an order shall be by written motion,
stating with particularity the grounds and authority therefor, and setting
forth the relief or order sought.
(b) All dispositive motions shall contain proposed findings of fact and
conclusions of law, with supporting legal analysis, relevant to the contents
of the pleading. Motions to compel discovery must contain a certification by
the moving party that a good faith attempt to resolve the dispute was made
prior to filing the motion. All facts relied upon in motions must be
supported by documentation or affidavits pursuant to the requirements of
§1.720(c), except for those facts of which official notice may be taken.
(c) The moving party shall provide a proposed order for adoption, which
appropriately incorporates the basis therefor, including proposed findings
of fact and conclusions of law relevant to the pleading. The proposed order
shall be clearly marked as a “Proposed Order.” The proposed order shall be
submitted both as a hard copy and on computer disk in accordance with the
requirements of §1.734(d). Where appropriate, the proposed order format
should conform to that of a reported FCC order.
(d) Oppositions to any motion shall be accompanied by a proposed order for
adoption, which appropriately incorporates the basis therefor, including
proposed findings of fact and conclusions of law relevant to the pleading.
The proposed order shall be clearly captioned as a “Proposed Order.” The
proposed order shall be submitted both as a hard copy and on computer disk
in accordance with the requirements of §1.734(d). Where appropriate, the
proposed order format should conform to that of a reported FCC order.
(e) Oppositions to motions may be filed and served within five business days
after the motion is filed and served and not after. Oppositions shall be
limited to the specific issues and allegations contained in such motion;
when a motion is incorporated in an answer to a complaint, the opposition to
such motion shall not address any issues presented in the answer that are
not also specifically raised in the motion. Failure to oppose any motion may
constitute grounds for granting of the motion.
(f) No reply may be filed to an opposition to a motion.
(g) Motions seeking an order that the allegations in the complaint be made
more definite and certain are prohibited.
(h) Amendments or supplements to complaints to add new claims or requests
for relief are prohibited. Parties are responsible, however, for the
continuing accuracy and completeness of all information and supporting
authority furnished in a pending complaint proceeding as required under
§1.720(g).
[ 53 FR 11854 , Apr. 11, 1988, as amended at 58 FR 25572 , Apr. 27, 1993; 63 FR 1036 , Jan. 7, 1998; 63 FR 41447 , Aug. 4, 1998]
§ 1.728 Formal complaints not stating a cause of action; defective pleadings.
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(a) Any document purporting to be a formal complaint which does not state a
cause of action under the Communications Act will be dismissed. In such
case, any amendment or supplement to such document will be considered a new
filing which must be made within the statutory periods of limitations of
actions contained in section 415 of the Communications Act.
(b) Any other pleading filed in a formal complaint proceeding not in
conformity with the requirements of the applicable rules in this part may be
deemed defective. In such case the Commission may strike the pleading or
request that specified defects be corrected and that proper pleadings be
filed with the Commission and served on all parties within a prescribed time
as a condition to being made a part of the record in the proceeding.
[ 53 FR 11854 , Apr. 11, 1988]
§ 1.729 Discovery.
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(a) Subject to paragraph (i) of this section governing Accelerated Docket
proceedings, a complainant may file with the Commission and serve on a
defendant, concurrently with its complaint, a request for up to ten written
interrogatories. A defendant may file with the Commission and serve on a
complainant, during the period starting with the service of the complaint
and ending with the service of its answer, a request for up to ten written
interrogatories. A complainant may file with the Commission and serve on a
defendant, within three calendar days of service of the defendant's answer,
a request for up to five written interrogatories. Subparts of any
interrogatory will be counted as separate interrogatories for purposes of
compliance with this limit. Requests for interrogatories filed and served
pursuant to this procedure may be used to seek discovery of any
non-privileged matter that is relevant to the material facts in dispute in
the pending proceeding, provided, however, that requests for interrogatories
filed and served by a complainant after service of the defendant's answer
shall be limited in scope to specific factual allegations made by the
defendant in support of its affirmative defenses. This procedure may not be
employed for the purpose of delay, harassment or obtaining information that
is beyond the scope of permissible inquiry related to the material facts in
dispute in the pending proceeding.
(b) Requests for interrogatories filed and served pursuant to paragraph (a)
of this section shall contain a listing of the interrogatories requested and
an explanation of why the information sought in each interrogatory is both
necessary to the resolution of the dispute and not available from any other
source.
(c) A responding party shall file with the Commission and serve on the
propounding party any opposition and objections to the requests for
interrogatories as follows:
(1) By the defendant, within ten calendar days of service of the requests
for interrogatories served simultaneously with the complaint and within five
calendar days of the requests for interrogatories served following service
of the answer;
(2) By the complainant, within five calendar days of service of the requests
for interrogatories; and
(3) In no event less than three calendar days prior to the initial status
conference as provided for in §1.733(a).
(d) Commission staff will consider the requests for interrogatories,
properly filed and served pursuant to paragraph (a) of this section, along
with any objections or oppositions thereto, properly filed and served
pursuant to paragraph (b) of this section, at the initial status conference,
as provided for in §1.733(a)(5), and at that time determine the
interrogatories, if any, to which parties shall respond, and set the
schedule of such response.
(e) The interrogatories ordered to be answered pursuant to paragraph (d) of
this section are to be answered separately and fully in writing under oath
or affirmation by the party served, or if such party is a public or private
corporation or partnership or association, by any officer or agent who shall
furnish such information as is available to the party. The answers shall be
signed by the person making them. The answers shall be filed with the
Commission and served on the propounding party.
(f) A propounding party asserting that a responding party has provided an
inadequate or insufficient response to Commission-ordered discovery request
may file a motion to compel within ten days of the service of such response,
or as otherwise directed by Commission staff, pursuant to the requirements
of §1.727.
(g) The Commission may, in its discretion, require parties to provide
documents to the Commission in a scanned or other electronic format that
provides:
(1) Indexing by useful identifying information about the documents; and
(2) Technology that allows staff to annotate the index so as to make the
format an efficient means of reviewing the documents.
(h) The Commission may allow additional discovery, including, but not
limited to, document production, depositions and/or additional
interrogatories. In its discretion, the Commission may modify the scope,
means and scheduling of discovery in light of the needs of a particular case
and the requirements of applicable statutory deadlines.
(i) Discovery in Accelerated Docket proceedings. (1) Each party to an
Accelerated Docket proceeding shall serve, with its initial pleading and
with any reply statements in the pre-status-conference filing (see
§1.726(g)(1)), copies of all documents in the possession, custody or control
of the party that are likely to bear significantly on any claim or defense.
For the purpose of this paragraph (i), document also shall include data
compilations and tangible things. A document is likely to bear significantly
on a claim or defense if it:
(i) Appears likely to have an influence on, or affect the outcome of, a
claim or defense;
(ii) Reflects the relevant knowledge of persons who, if their potential
testimony were known, might reasonably be expected to be deposed or called
as a witness by any of the parties;
(iii) Is something that competent counsel would consider reasonably
necessary to prepare, evaluate or try a claim or defense; or
(iv) Would not support the disclosing party's contentions.
(2) In their §1.733(i)(4) pre-status-conference filings, parties to
Accelerated Docket proceedings may request the production of additional
documents. In their §1.733(i)(4) filings, parties may also seek leave to
conduct a reasonable number of depositions, including depositions of expert
witnesses, if any. When requesting additional discovery, each party shall be
prepared at the status conference to justify its requests by identifying the
specific issue or issues on which it expects to obtain evidence from each
request.
(3) Interrogatories shall not be routinely granted in Accelerated Docket
proceedings. A party to an Accelerated Docket proceeding that prefers
interrogatories to the other forms of available discovery, for reasons of
convenience or expense, may seek leave in its §1.733(i)(4)
pre-status-conference filing to propound a limited number of
interrogatories.
(4) Expert Witnesses.
(i) Any complainant in an Accelerated Docket proceeding that intends to rely
on expert testimony for a purpose other than to rebut a defendant's expert
evidence, shall identify its expert witnesses in the information designation
required by §1.721(a)(10)(i). In its §1.721(a)(10)(i) information
designation, such a complainant shall also provide its expert statement. For
purposes of this paragraph (i)(4), an expert statement shall include a brief
statement of the opinions to be expressed by the expert, the basis and
reasons therefor and any data or other information that the witness
considered in forming her opinions.
(ii) Any defendant in an Accelerated Docket proceeding that intends to rely
on expert testimony shall identify its expert witnesses in the information
designation required by §1.724(f)(1). Such a defendant shall provide its
expert statement with its §1.733(i)(4), pre-status-conference filing.
(iii) Any complainant in an Accelerated Docket proceeding that intends to
rely on previously undisclosed expert testimony to rebut any portion of the
defendant's case shall identify the expert and provide the appropriate
expert statement at the initial status conference.
(iv) Expert witnesses shall be subject to deposition in Accelerated Docket
proceedings under the same rules and limitations applicable to fact
witnesses.
[ 63 FR 1038 , Jan. 7, 1998, as amended at 63 FR 41447 , Aug. 4, 1998]
§ 1.730 The Enforcement Bureau's Accelerated Docket.
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(a) Parties to formal complaint proceedings against common carriers within
the responsibility of the Enforcement Bureau (see §§0.111, 0.311, 0.314 of
this chapter) may request inclusion on the Bureau's Accelerated Docket. As
set out in §§1.720 through 1.736, proceedings on the Accelerated Docket are
subject to shorter pleading deadlines and certain other procedural rules
that do not apply to other formal complaint proceedings before the
Enforcement Bureau.
(b) Any party that contemplates filing a formal complaint may submit a
request to the Chief of the Enforcement Bureau's Market Disputes Resolution
Division, either by phone or in writing, seeking inclusion of its complaint,
once filed, on the Accelerated Docket. In appropriate cases, Commission
staff shall schedule and supervise pre-filing settlement negotiations
between the parties to the dispute. If the parties do not resolve their
dispute and the matter is accepted for handling on the Accelerated Docket,
the complainant shall file its complaint with a letter stating that it has
gained admission to the Accelerated Docket. When it files its complaint,
such a complainant shall also serve a copy of its complaint on the
Commission staff that supervised the pre-filing settlement discussions.
(c) Within five days of receiving service of a complaint, any defendant in a
formal complaint proceeding may submit by facsimile or hand delivery, to the
Chief of the Enforcement Bureau's Market Disputes Resolution Division, a
request seeking inclusion of its proceeding on the Accelerated Docket. Such
a defendant contemporaneously shall transmit, in the same manner, a copy of
its request to all parties to the proceeding. A defendant submitting such a
request shall file and serve its answer in compliance with the requirements
of §1.724(k), except that the defendant shall not be required to serve with
its answer the automatic document production required by §§1.724(k)(7) and
1.729(i)(1). In proceedings accepted onto the Accelerated Docket at a
defendant's request, the Commission staff will conduct supervised settlement
discussions as appropriate. After accepting such a proceeding onto the
Accelerated Docket, Commission staff will establish a schedule for the
remainder of the proceeding, including the parties' §1.729(i)(1) automatic
production of documents.
(d) During the thirty days following the effective date of these rules, any
party to a pending formal complaint proceeding in which an answer has been
filed or is past due may seek admission of the proceeding to the Accelerated
Docket by submitting a request by facsimile or hand delivery to the Chief of
the Enforcement Bureau's Market Disputes Resolution Division, with facsimile
copies to all other parties to the proceeding by the same mode of
transmission. If a pending proceeding is accepted onto the Accelerated
Docket, Commission staff will conduct supervised settlement discussions if
appropriate and establish a schedule for the remainder of the proceeding,
including the parties' §1.729(i)(1) automatic production of documents if
necessary.
(e) In determining whether to admit a proceeding onto the Accelerated
Docket, Commission staff may consider factors from the following,
non-exclusive list:
(1) Whether it appears that the parties to the dispute have exhausted the
reasonable opportunities for settlement during the staff-supervised
settlement discussions.
(2) Whether the expedited resolution of a particular dispute or category of
disputes appears likely to advance competition in the telecommunications
market.
(3) Whether the issues in the proceeding appear suited for decision under
the constraints of the Accelerated Docket. This factor may entail, inter
alia, examination of the number of distinct issues raised in a proceeding,
the likely complexity of the necessary discovery, and whether the
complainant bifurcates any damages claims for decision in a separate
proceeding. See §1.722(b).
(4) Whether the complainant states a claim for violation of the Act, or
Commission rule or order that falls within the Commission's jurisdiction.
(5) Whether it appears that inclusion of a proceeding on the Accelerated
Docket would be unfair to one party because of an overwhelming disparity in
the parties' resources.
(6) Such other factors as the Commission staff, within its substantial
discretion, may deem appropriate and conducive to the prompt and fair
adjudication of complaint proceedings.
(f) If it appears at any time that a proceeding on the Accelerated Docket is
no longer appropriate for such treatment, Commission staff may remove the
matter from the Accelerated Docket either on its own motion or at the
request of any party.
(g) Minitrials.
(1) In Accelerated Docket proceedings, the Commission may conduct a
minitrial, or hearing-type proceeding, as an alternative to requiring that
parties submit briefs in support of their cases. Minitrials typically will
take place between 40 and 45 days after the filing of the complaint. A
Commission Administrative Law Judge (“ALJ”) typically will preside at the
minitrial, administer oaths to witnesses, and time the parties' presentation
of their cases. In consultation with the Commission staff, the ALJ will rule
on objections or procedural issues that may arise during the course of the
minitrial.
(2) Before a minitrial, each party will receive a specific time allotment in
which it may present evidence and make argument during the minitrial. The
ALJ or other Commission staff presiding at the minitrial will deduct from
each party's time allotment any time that the party spends presenting either
evidence or argument during the proceeding. The presiding official shall
have broad discretion in determining any time penalty or deduction for a
party who appears to be intentionally delaying either the proceeding or the
presentation of another party's case. Within the limits imposed by its time
allotment, a party may present evidence and argument in whatever manner or
format it chooses, provided, however, that the submission of written
testimony shall not be permitted.
(3) Three days before a minitrial, each party to a proceeding shall serve on
all other parties a copy of all exhibits that the party intends to introduce
during the minitrial and a list of all witnesses, including expert
witnesses, that the party may call during the minitrial. Service of this
material shall be accomplished either by hand or by facsimile transmission.
Objections to any exhibits or proposed witness testimony will be heard
before the beginning of the minitrial.
(4) No party will be permitted to call as a witness in a minitrial, or
otherwise offer evidence from, an individual in that party's employ, unless
the individual appears on the party's information designation (see
§§1.721(a)(10)(i) or 1.724(f)(1)) with a general description of the issues
on which she will offer evidence. No party will be permitted to present
expert evidence unless the party has complied fully with the
expert-disclosure requirements of §1.729(i)(4). The Commission may permit
exceptions to the rules in this paragraph (g)(4) for good cause shown.
(5) Two days before the beginning of the minitrial, parties shall file
proposed findings of fact and conclusions of law. These submissions shall
not exceed 40 pages per party. Within three days after the conclusion of the
minitrial, parties may submit revised proposed findings of fact and
conclusions of law to meet evidence introduced or arguments raised at the
minitrial. These submissions shall not exceed 20 pages per party.
(6) The parties shall arrange for the stenographic transcription of
minitrial proceedings so that transcripts are available and filed with the
Commission no more than three days after the conclusion of the minitrial.
Absent an agreement to the contrary, the cost of the transcript shall be
shared equally between the parties to the proceeding.
(h) Applications for review of staff decisions issued on delegated authority
in Accelerated Docket proceedings shall comply with the filing and service
requirements in §1.115(e)(4). In those Accelerated Docket proceedings which
raise issues that may not be decided on delegated authority (see 47 U.S.C.
155(c)(1); 47 CFR 0.291(d)), the staff decision issued after the minitrial
will be a recommended decision subject to adoption or modification by the
Commission. Any party to the proceeding that seeks modification of the
recommended decision may do so by filing comments challenging the decision
within 15 days of its release by the Commission's Office of Media Relations.
(Compare §1.4(b)(2).) Opposition comments may be filed within 15 days of the
comments challenging the decision; reply comments may be filed 10 days
thereafter and shall be limited to issues raised in the opposition comments.
(i) If no party files comments challenging the recommended decision, the
Commission will issue its decision adopting or modifying the recommended
decision within 45 days of its release. If parties to the proceeding file
comments to the recommended decision, the Commission will issue its decision
adopting or modifying the recommended decision within 30 days of the filing
of the final comments.
[ 63 FR 41448 , Aug. 4, 1998, as amended at 64 FR 60725 , Nov. 8, 1999]
§ 1.731 Confidentiality of information produced or exchanged by the parties.
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(a) Any materials generated in the course of a formal complaint proceeding
may be designated as proprietary by that party if the party believes in good
faith that the materials fall within an exemption to disclosure contained in
the Freedom of Information Act (FOIA), 5 U.S.C. 552(b) (1) through (9). Any
party asserting confidentiality for such materials shall so indicate by
clearly marking each page, or portion thereof, for which a proprietary
designation is claimed. If a proprietary designation is challenged, the
party claiming confidentiality shall have the burden of demonstrating, by a
preponderance of the evidence, that the material designated as proprietary
falls under the standards for nondisclosure enunciated in the FOIA.
(b) Materials marked as proprietary may be disclosed solely to the following
persons, only for use in prosecuting or defending a party to the complaint
action, and only to the extent necessary to assist in the prosecution or
defense of the case:
(1) Counsel of record representing the parties in the complaint action and
any support personnel employed by such attorneys;
(2) Officers or employees of the opposing party who are named by the
opposing party as being directly involved in the prosecution or defense of
the case;
(3) Consultants or expert witnesses retained by the parties;
(4) The Commission and its staff; and
(5) Court reporters and stenographers in accordance with the terms and
conditions of this section.
(c) These individuals shall not disclose information designated as
proprietary to any person who is not authorized under this section to
receive such information, and shall not use the information in any activity
or function other than the prosecution or defense in the case before the
Commission. Each individual who is provided access to the information shall
sign a notarized statement affirmatively stating that the individual has
personally reviewed the Commission's rules and understands the limitations
they impose on the signing party.
(d) No copies of materials marked proprietary may be made except copies to
be used by persons designated in paragraph (b) of this section. Each party
shall maintain a log recording the number of copies made of all proprietary
material and the persons to whom the copies have been provided.
(e) Upon termination of a formal complaint proceeding, including all appeals
and petitions, all originals and reproductions of any proprietary materials,
along with the log recording persons who received copies of such materials,
shall be provided to the producing party. In addition, upon final
termination of the complaint proceeding, any notes or other work product
derived in whole or in part from the proprietary materials of an opposing or
third party shall be destroyed.
[ 58 FR 25573 , Apr. 27, 1993, as amended at 63 FR 1039 , Jan. 7, 1998]
§ 1.732 Other required written submissions.
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(a) The Commission may, in its discretion, or upon a party's motion showing
good cause, require the parties to file briefs summarizing the facts and
issues presented in the pleadings and other record evidence.
(b) Unless otherwise directed by the Commission, all briefs shall include
all legal and factual claims and defenses previously set forth in the
complaint, answer, or any other pleading submitted in the proceeding. Claims
and defenses previously made but not reflected in the briefs will be deemed
abandoned. The Commission may, in its discretion, limit the scope of any
briefs to certain subjects or issues. A party shall attach to its brief
copies of all documents, data compilations, tangible things, and affidavits
upon which such party relies or intends to rely to support the facts alleged
and legal arguments made in its brief and such brief shall contain a full
explanation of how each attachment is relevant to the issues and matters in
dispute. All such attachments to a brief shall be documents, data
compilations or tangible things, or affidavits made by persons, that were
identified by any party in its information designations filed pursuant to
§§1.721(a)(10)(i), (a)(10)(ii), 1.724(f)(1), (f)(2), and 1.726(d)(1),
(d)(2). Any other supporting documentation or affidavits that is attached to
a brief must be accompanied by a full explanation of the relevance of such
materials and why such materials were not identified in the information
designations. These briefs shall contain the proposed findings of fact and
conclusions of law which the filing party is urging the Commission to adopt,
with specific citation to the record, and supporting relevant authority and
analysis.
(c) In cases in which discovery is not conducted, absent an order by the
Commission that briefs be filed, parties may not submit briefs. If the
Commission does authorize the filing of briefs in cases in which discovery
is not conducted, briefs shall be filed concurrently by both the complainant
and defendant at such time as designated by the Commission staff and in
accordance with the provisions of this section.
(d) In cases in which discovery is conducted, briefs shall be filed
concurrently by both the complainant and defendant at such time designated
by the Commission staff.
(e) Briefs containing information which is claimed by an opposing or third
party to be proprietary under §1.731 shall be submitted to the Commission in
confidence pursuant to the requirements of §0.459 of this chapter and
clearly marked “Not for Public Inspection.” An edited version removing all
proprietary data shall also be filed with the Commission for inclusion in
the public file. Edited versions shall be filed within five days from the
date the unedited brief is submitted, and served on opposing parties.
(f) Initial briefs shall be no longer than twenty-five pages. Reply briefs
shall be no longer than ten pages. Either on its own motion or upon proper
motion by a party, the Commission staff may establish other page limits for
briefs.
(g) The Commission may require the parties to submit any additional
information it deems appropriate for a full, fair, and expeditious
resolution of the proceeding, including affidavits and exhibits.
(h) The parties shall submit a joint statement of stipulated facts, disputed
facts, and key legal issues no later than two business days prior to the
initial status conference, scheduled in accordance with the provisions of
§1.733(a).
[ 53 FR 11855 , Apr. 11, 1988. Redesignated and amended at 58 FR 25573 , Apr.
27, 1993; 63 FR 1039 , Jan. 7, 1998]
§ 1.733 Status conference.
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(a) In any complaint proceeding, the Commission may, in its discretion,
direct the attorneys and/or the parties to appear before it for a status
conference. Unless otherwise ordered by the Commission, and with the
exception of Accelerated Docket proceedings, governed by paragraph (i) of
this section, an initial status conference shall take place, at the time and
place designated by the Commission staff, ten business days after the date
the answer is due to be filed. A status conference may include discussion
of:
(1) Simplification or narrowing of the issues;
(2) The necessity for or desirability of additional pleadings or evidentiary
submissions;
(3) Obtaining admissions of fact or stipulations between the parties as to
any or all of the matters in controversy;
(4) Settlement of all or some of the matters in controversy by agreement of
the parties;
(5) Whether discovery is necessary and, if so, the scope, type and schedule
for such discovery;
(6) The schedule for the remainder of the case and the dates for any further
status conferences; and
(7) Such other matters that may aid in the disposition of the complaint.
(b)(1) Subject to paragraph (i) of this section governing Accelerated Docket
proceedings, parties shall meet and confer prior to the initial status
conference to discuss:
(i) Settlement prospects;
(ii) Discovery;
(iii) Issues in dispute;
(iv) Schedules for pleadings;
(v) Joint statement of stipulated facts, disputed facts, and key legal
issues; and
(vi) In a 47 U.S.C. 271(d)(6)(B) proceeding, whether or not the parties
agree to waive the 47 U.S.C. 271(d)(6)(B) 90-day resolution deadline.
(2) Subject to paragraph (i) of this section governing Accelerated Docket
proceedings, parties shall submit a joint statement of all proposals agreed
to and disputes remaining as a result of such meeting to Commission staff at
least two business days prior to the scheduled initial status conference.
(c) In addition to the initial status conference referenced in paragraph (a)
of this section, any party may also request that a conference be held at any
time after the complaint has been filed.
(d) During a status conference, the Commission staff may issue oral rulings
pertaining to a variety of interlocutory matters relevant to the conduct of
a formal complaint proceeding including, inter alia, procedural matters,
discovery, and the submission of briefs or other evidentiary materials.
(e) Parties may make, upon written notice to the Commission and all
attending parties at least three business days prior to the status
conference, an audio recording of the Commission staff's summary of its oral
rulings. Alternatively, upon agreement among all attending parties and
written notice to the Commission at least three business days prior to the
status conference, the parties may make an audio recording of, or use a
stenographer to transcribe, the oral presentations and exchanges between and
among the participating parties, insofar as such communications are
“on-the-record” as determined by the Commission staff, as well as the
Commission staff's summary of its oral rulings. A complete transcript of any
audio recording or stenographic transcription shall be filed with the
Commission as part of the record, pursuant to the provisions of paragraph
(f)(2) of this section. The parties shall make all necessary arrangements
for the use of a stenographer and the cost of transcription, absent
agreement to the contrary, will be shared equally by all parties that agree
to make the record of the status conference.
(f) The parties in attendance, unless otherwise directed, shall either:
(1) Submit a joint proposed order memorializing the oral rulings made during
the conference to the Commission by 5:30 pm, Eastern Time, on the business
day following the date of the status conference, or as otherwise directed by
Commission staff. In the event the parties in attendance cannot reach
agreement as to the rulings that were made, the joint proposed order shall
include the rulings on which the parties agree, and each party's alternative
proposed rulings for those rulings on which they cannot agree. Commission
staff will review and make revisions, if necessary, prior to signing and
filing the submission as part of the record. The proposed order shall be
submitted both as hard copy and on computer disk in accordance with the
requirements of §1.734(d); or
(2) Pursuant to the requirements of paragraph (e) of this section, submit to
the Commission by 5:30 pm., Eastern Time, on the third business day
following the status conference or as otherwise directed by Commission staff
either:
(i) A transcript of the audio recording of the Commission staff's summary of
its oral rulings;
(ii) A transcript of the audio recording of the oral presentations and
exchanges between and among the participating parties, insofar as such
communications are “on-the-record” as determined by the Commission staff,
and the Commission staff's summary of its oral rulings; or
(iii) A stenographic transcript of the oral presentations and exchanges
between and among the participating parties, insofar as such communications
are “on-the-record” as determined by the Commission staff, and the
Commission staff's summary of its oral rulings.
(g) Status conferences will be scheduled by the Commission staff at such
time and place as it may designate to be conducted in person or by telephone
conference call.
(h) The failure of any attorney or party, following reasonable notice, to
appear at a scheduled conference will be deemed a waiver by that party and
will not preclude the Commission staff from conferring with those parties
and/or counsel present.
(i) Accelerated Docket Proceedings. (1) In Accelerated Docket proceedings,
the initial status conference will be held 10 days after the answer is due
to be filed.
(2) Prior to the initial status conference, the parties shall confer, either
in person or by telephone, about:
(i) Discovery to which they can agree;
(ii) Facts to which they can stipulate; and
(iii) Factual and legal issues in dispute.
(3) Two days before the status conference, parties shall submit to
Commission staff a joint statement of:
(i) The agreements that they have reached with respect to discovery;
(ii) The facts to which they have agreed to stipulate; and
(iii) The disputed facts or legal issues of which they can agree to a joint
statement.
(4) Two days before the status conference, each party also shall submit to
Commission staff a separate statement which shall include, as appropriate,
the party's statement of the disputed facts and legal issues presented by
the complaint proceeding and any additional discovery that the party seeks.
A complainant that wishes to reply to a defendant's affirmative defense
shall do so in its pre-status-conference filing. To the extent that this
filing contains statements replying to an affirmative defense, the
complainant shall include, and/or serve with the statement, the witness
information and documents required in §1.726(g)(3)–(4). A defendant that
intends to rely on expert evidence shall include its expert statement in its
pre-status conference filing. (See §1.729(i)(4)(ii).)
[ 53 FR 11855 , Apr. 11, 1988. Redesignated and amended at 58 FR 25573 , Apr.
27, 1993; 63 FR 1039 , Jan. 7, 1998; 63 FR 41449 , Aug. 4, 1998]
§ 1.734 Specifications as to pleadings, briefs, and other documents;
subscription.
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(a) All papers filed in any formal complaint proceeding must be drawn in
conformity with the requirements of §§1.49 and 1.50.
(b) All averments of claims or defenses in complaints and answers shall be
made in numbered paragraphs. The contents of each paragraph shall be limited
as far as practicable to a statement of a single set of circumstances. Each
claim founded on a separate transaction or occurrence and each affirmative
defense shall be separately stated to facilitate the clear presentation of
the matters set forth.
(c) The original of all pleadings and other submissions filed by any party
shall be signed by the party, or by the party's attorney. The signing party
shall include in the document his or her address, telephone number,
facsimile number and the date on which the document was signed. Copies
should be conformed to the original. Unless specifically required by rule or
statute, pleadings need not be verified. The signature of an attorney or
party shall be a certificate that the attorney or party has read the
pleading, motion, or other paper; that to the best of his or her knowledge,
information, and belief formed after reasonable inquiry, it is well grounded
in fact and is warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law; and that it is not
interposed solely for purposes of delay or for any other improper purpose.
(d) All proposed orders shall be submitted both as hard copies and on
computer disk formatted to be compatible with the Commission's computer
system and using the Commission's current wordprocessing software. Each disk
should be submitted in “read only” mode. Each disk should be clearly
labelled with the party's name, proceeding, type of pleading, and date of
submission. Each disk should be accompanied by a cover letter. Parties who
have submitted copies of tariffs or reports with their hard copies need not
include such tariffs or reports on the disk. Upon showing of good cause, the
Commission may waive the requirements of this paragraph.
[ 53 FR 11855 , Apr. 11, 1988. Redesignated at 58 FR 25573 , Apr. 27, 1993, as
amended at 63 FR 1040 , Jan. 7, 1998]
§ 1.735 Copies; service; separate filings against multiple defendants.
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(a) Complaints may generally be brought against only one named carrier; such
actions may not be brought against multiple defendants unless the defendant
carriers are commonly owned or controlled, are alleged to have acted in
concert, are alleged to be jointly liable to complainant, or the complaint
concerns common questions of law or fact. Complaints may, however, be
consolidated by the Commission for disposition.
(b) The complainant shall file an original copy of the complaint,
accompanied by the correct fee, in accordance with part 1, subpart G (see
§1.1106) and, on the same day:
(1) File three copies of the complaint with the Office of the Commission
Secretary;
(2) Serve two copies on the Market Disputes Resolution Division, Enforcement
Bureau;
(3) If the complaint is filed against a carrier concerning matters within
the responsibility of the International Bureau (see §0.261 of this chapter),
serve a copy on the Chief, Policy Division, International Bureau; and
(4) If a complaint is addressed against multiple defendants, pay a separate
fee, in accordance with part 1, subpart G (see §1.1106), and file three
copies of the complaint with the Office of the Commission Secretary for each
additional defendant.
(c) Generally, a separate file is set up for each defendant. An original
plus two copies shall be filed of all pleadings and documents, other than
the complaint, for each file number assigned.
(d) The complainant shall serve the complaint by hand delivery on either the
named defendant or one of the named defendant's registered agents for
service of process on the same date that the complaint is filed with the
Commission in accordance with the requirements of paragraph (b) of this
section.
(e) Upon receipt of the complaint by the Commission, the Commission shall
promptly send, by facsimile transmission to each defendant named in the
complaint, notice of the filing of the complaint. The Commission shall send,
by regular U.S. mail delivery, to each defendant named in the complaint, a
copy of the complaint. The Commission shall additionally send, by regular
U.S. mail to all parties, a schedule detailing the date the answer will be
due and the date, time and location of the initial status conference.
(f) All subsequent pleadings and briefs filed in any formal complaint
proceeding, as well as all letters, documents or other written submissions,
shall be served by the filing party on the attorney of record for each party
to the proceeding, or, where a party is not represented by an attorney, each
party to the proceeding either by hand delivery, overnight delivery, or by
facsimile transmission followed by regular U.S. mail delivery, together with
a proof of such service in accordance with the requirements of §1.47(g).
Service is deemed effective as follows:
(1) Service by hand delivery that is delivered to the office of the
recipient by 5:30 pm, local time of the recipient, on a business day will be
deemed served that day. Service by hand delivery that is delivered to the
office of the recipient after 5:30 pm, local time of the recipient, on a
business day will be deemed served on the following business day;
(2) Service by overnight delivery will be deemed served the business day
following the day it is accepted for overnight delivery by a reputable
overnight delivery service such as, or comparable to, the US Postal Service
Express Mail, United Parcel Service or Federal Express; or
(3) Service by facsimile transmission that is fully transmitted to the
office of the recipient by 5:30 pm, local time of the recipient, on a
business day will be deemed served that day. Service by facsimile
transmission that is fully transmitted to the office of the recipient after
5:30 pm, local time of the recipient, on a business day will be deemed
served on the following business day.
(g) Supplemental complaint proceedings. Supplemental complaints filed
pursuant to section 1.722 shall conform to the requirements set out in this
section, except that the complainant need not submit a filing fee, and the
complainant may effect service pursuant to paragraph (f) of this section
rather than paragraph (d) of this section numerals.
[ 53 FR 11855 , Apr. 11, 1988. Redesignated and amended at 58 FR 25573 , 25574,
Apr. 27, 1993, as amended at 63 FR 1040 , Jan. 7, 1998; 64 FR 60726 , Nov. 8,
1999; 66 FR 16617 , Mar. 27, 2001; 67 FR 13223 , Mar. 21, 2002; 69 FR 41130 ,
July 7, 2004]
§ 1.736 Complaints filed pursuant to 47 U.S.C. 271(d)(6)(B).
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(a) Where a complaint is filed pursuant to 47 U.S.C. 271(d)(6)(B), parties
shall indicate whether they are willing to waive the ninety-day resolution
deadline contained in 47 U.S.C. 271(d)(6)(B) in the following manner:
(1) The complainant shall so indicate in both the complaint itself and in
the Formal Complaint Intake Form, and the defendant shall so indicate in its
answer; or
(2) The parties shall indicate their agreement to waive the ninety-day
resolution deadline to the Commission staff at the initial status
conference, to be held in accordance with §1.733 of the rules.
(b) Requests for waiver of the ninety-day resolution deadline for complaints
filed pursuant to 47 U.S.C. 271(d)(6)(B) will not be entertained by the
Commission staff subsequent to the initial status conference, absent a
showing by the complainant and defendant that such waiver is in the public
interest.
[ 63 FR 1041 , Jan. 7, 1998]
Applications
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§ 1.741 Scope.
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The general rules relating to applications contained in §§1.742 through
1.748 apply to all applications filed by carriers except those filed by
public correspondence radio stations pursuant to parts 80, 87, and 101 of
this chapter, and those filed by common carriers pursuant to part 25 of this
chapter. Parts 21 and 101 of this chapter contain general rules applicable
to applications filed pursuant to these parts. For general rules applicable
to applications filed pursuant to parts 80 and 87 of this chapter, see such
parts and subpart F of this part. For rules applicable to applications filed
pursuant to part 25, see said part.
[ 61 FR 26670 , May 28, 1996]
§ 1.742 Place of filing, fees, and number of copies.
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All applications which do not require a fee shall be filed at the
Commission's main office in Washington, DC., Attention: Office of the
Secretary. Hand-delivered applications will be dated by the Secretary upon
receipt (mailed applications will be dated by the Mail Branch) and then
forwarded to the Wireline Competition Bureau. All applications accompanied
by a fee payment should be filed with the Commission's lockbox bank in
accordance with §1.1105, Schedule of Fees. The number of copies required for
each application and the nonrefundable processing fees and any applicable
regulatory fees (see subpart G of this part) which must accompany each
application in order to qualify it for acceptance for filing and
consideration are set forth in the rules in this chapter relating to various
types of applications. However, if any application is not of the type
covered by this chapter, an original and two copies of each such application
shall be submitted.
[ 59 FR 30998 , June 16, 1994, as amended at 67 FR 13223 , Mar. 21, 2002]
§ 1.743 Who may sign applications.
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(a) Except as provided in paragraph (b) of this section, applications,
amendments thereto, and related statements of fact required by the
Commission must be signed by the applicant, if the applicant is an
individual; by one of the partners, if the applicant is a partnership; by an
officer or duly authorized employee, if the applicant is a corporation; or
by a member who is an officer, if the applicant is an unincorporated
association. Applications, amendments, and related statements of fact filed
on behalf of eligible government entities such as states and territories of
the United States, their political subdivisions, the District of Columbia,
and units of local government, including incorporated municipalities, must
be signed by a duly elected or appointed official who is authorized to do so
under the laws of the applicable jurisdiction.
(b) Applications, amendments thereto, and related statements of fact
required by the Commission may be signed by the applicant's attorney in case
of the applicant's physical disability or of his absence from the United
States. The attorney shall in that event separately set forth the reason why
the application is not signed by the applicant. In addition, if any matter
is stated on the basis of the attorney's belief only (rather than his
knowledge), he shall separately set forth his reasons for believing that
such statements are true.
(c) Only the original of applications, amendments, or related statements of
fact need be signed; copies may be conformed.
(d) Applications, amendments, and related statements of fact need not be
signed under oath. Willful false statements made therein, however, are
punishable by fine and imprisonment, U.S. Code, Title 18, section 1001, and
by appropriate administrative sanctions, including revocation of station
license pursuant to section 312(a)(1) of the Communications Act of 1934, as
amended.
(e) “Signed,” as used in this section, means an original hand-written
signature, except that by public notice in theFederal Registerthe Wireline
Competition Bureau may allow signature by any symbol executed or adopted by
the applicant with the intent that such symbol be a signature, including
symbols formed by computer-generated electronic impulses.
[ 28 FR 12450 , Nov. 22, 1963, as amended at 53 FR 17193 , May 16, 1988; 59 FR 59503 , Nov. 17, 1994; 67 FR 13223 , Mar. 21, 2002]
§ 1.744 Amendments.
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(a) Any application not designated for hearing may be amended at any time by
the filing of signed amendments in the same manner, and with the same number
of copies, as was the initial application. If a petition to deny (or to
designate for hearing) has been filed, the amendment shall be served on the
petitioner.
(b) After any application is designated for hearing, requests to amend such
application may be granted by the presiding officer upon good cause shown by
petition, which petition shall be properly served upon all other parties to
the proceeding.
(c) The applicant may at any time be ordered to amend his application so as
to make it more definite and certain. Such order may be issued upon motion
of the Commission (or the presiding officer, if the application has been
designated for hearing) or upon petition of any interested person, which
petition shall be properly served upon the applicant and, if the application
has been designated for hearing, upon all parties to the hearing.
[ 29 FR 6444 , May 16, 1964, and 31 FR 14394 , Nov. 9, 1966]
§ 1.745 Additional statements.
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The applicant may be required to submit such additional documents and
written statements of fact, signed and verified (or affirmed), as in the
judgment of the Commission (or the presiding officer, if the application has
been designated for hearing) may be necessary. Any additional documents and
written statements of fact required in connection with applications under
Title II of the Communications Act need not be verified (or affirmed).
[ 29 FR 6444 , May 16, 1964]
§ 1.746 Defective applications.
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(a) Applications not in accordance with the applicable rules in this chapter
may be deemed defective and returned by the Commission without acceptance of
such applications for filing and consideration. Such applications will be
accepted for filing and consideration if accompanied by petition showing
good cause for waiver of the rule with which the application does not
conform.
(b) The assignment of a file number, if any, to an application is for the
administrative convenience of the Commission and does not indicate the
acceptance of the application for filing and consideration.
§ 1.747 Inconsistent or conflicting applications.
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When an application is pending or undecided, no inconsistent or conflicting
application filed by the same applicant, his successor or assignee, or on
behalf or for the benefit of said applicant, his successor, or assignee,
will be considered by the Commission.
§ 1.748 Dismissal of applications.
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(a) Before designation for hearing. Any application not designated for
hearing may be dismissed without prejudice at any time upon request of the
applicant. An applicant's request for the return of an application that has
been accepted for filing and consideration, but not designated for hearing,
will be deemed a request for dismissal without prejudice. The Commission may
dismiss an application without prejudice before it has been designated for
hearing when the applicant fails to comply or justify noncompliance with
Commission requests for additional information in connection with such
application.
(b) After designation for hearing. A request to dismiss an application
without prejudice after it has been designated for hearing shall be made by
petition properly served upon all parties to the hearing and will be granted
only for good cause shown. An application may be dismissed with prejudice
after it has been designated for hearing when the applicant:
(1) Fails to comply with the requirements of §1.221(c);
(2) Otherwise fails to prosecute his application; or
(3) Fails to comply or justify noncompliance with Commission requests for
additional information in connection with such application.
[ 28 FR 12450 , Nov. 22, 1963, as amended at 29 FR 6445 , May 16, 1964]
§ 1.749 Action on application under delegated authority.
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Certain applications do not require action by the Commission but, pursuant
to the delegated authority contained in subpart B of part 0 of this chapter,
may be acted upon by the Chief of the Wireline Competition Bureau subject to
reconsideration by the Commission.
[ 67 FR 13223 , Mar. 21, 2002]
Specific Types of Applications Under Title II of Communications Act
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§ 1.761 Cross reference.
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Specific types of applications under Title III of the Communications Act
involving public correspondence radio stations are specified in parts 23,
80, 87, and 101 of this chapter.
[ 61 FR 26671 , May 28, 1996]
§ 1.763 Construction, extension, acquisition or operation of lines.
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(a) Applications under section 214 of the Communications Act for authority
to construct a new line, extend any line, acquire or operate any line or
extension thereof, or to engage in transmission over or by means of such
additional or extended line, to furnish temporary or emergency service, or
to supplement existing facilities shall be made in the form and manner, with
the number of copies and accompanied by the fees specified in part 63 of
this chapter.
(b) In cases under this section requiring a certificate, notice is given to
and a copy of the application is filed with the Secretary of Defense, the
Secretary of State (with respect to such applications involving service to
foreign points), and the Governor of each State involved. Hearing is held if
any of these persons desires to be heard or if the Commission determines
that a hearing should be held. Copies of applications for certificates are
filed with the regulatory agencies of the States involved.
[ 28 FR 12450 , Nov. 22, 1963, as amended at 64 FR 39939 , July 23, 1999]
§ 1.764 Discontinuance, reduction, or impairment of service.
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(a) Applications under section 214 of the Communications Act for the
authority to discontinue, reduce, or impair service to a community or part
of a community or for the temporary, emergency, or partial discontinuance,
reduction, or impairment of service shall be made in the form and manner,
with the number of copies specified in part 63 of this chapter (see also
subpart G, part 1 of this chapter). Posted and public notice shall be given
the public as required by part 63 of this chapter.
(b) In cases under this section requiring a certificate, notice is given to
and a copy of the application is filed with the Secretary of Defense, the
Secretary of State (with respect to such applications involving service to
foreign points), and the Governor of each State involved. Hearing is held if
any of these persons desires to be heard or if the Commission determines
that a hearing should be held. Copies of all formal applications under this
section requesting authorizations (including certificates) are filed with
the Secretary of Defense, the Secretary of State (with respect to such
applications involving service to foreign points) and the Governor of each
State involved. Copies of all applications under this section requesting
authorizations (including certificates) are filed with the regulatory
agencies of the States involved.
[ 28 FR 12450 , Nov. 22, 1963, as amended at 52 FR 5289 , Feb. 20, 1987]
§ 1.767 Cable landing licenses.
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Link to an amendment published at 72 FR 54366 , Sept. 25, 2007.
(a) Applications for cable landing licenses under 47 U.S.C. 34–39 and
Executive Order No. 10530, dated May 10, 1954, should be filed in accordance
with the provisions of that Executive Order. These applications should
contain:
(1) The name, address and telephone number(s) of the applicant;
(2) The Government, State, or Territory under the laws of which each
corporate or partnership applicant is organized;
(3) The name, title, post office address, and telephone number of the
officer and any other contact point, such as legal counsel, to whom
correspondence concerning the application is to be addressed;
(4) A description of the submarine cable, including the type and number of
channels and the capacity thereof;
(5) A specific description of the cable landing stations on the shore of the
United States and in foreign countries where the cable will land. The
description shall include a map showing specific geographic coordinates, and
may also include street addresses, of each landing station. The map must
also specify the coordinates of any beach joint where those coordinates
differ from the coordinates of the cable station. The applicant initially
may file a general geographic description of the landing points; however,
grant of the application will be conditioned on the Commission's final
approval of a more specific description of the landing points, including all
information required by this paragraph, to be filed by the applicant no
later than ninety (90) days prior to construction. The Commission will give
public notice of the filing of this description, and grant of the license
will be considered final if the Commission does not notify the applicant
otherwise in writing no later than sixty (60) days after receipt of the
specific description of the landing points, unless the Commission designates
a different time period;
(6) A statement as to whether the cable will be operated on a common carrier
or non-common carrier basis;
(7) A list of the proposed owners of the cable system, including each U.S.
cable landing station, their respective voting and ownership interests in
each U.S. cable landing station, their respective voting interests in the
wet link portion of the cable system, and their respective ownership
interests by segment in the cable;
(8) For each applicant of the cable system, a certification as to whether
the applicant is, or is affiliated with, a foreign carrier, including an
entity that owns or controls a foreign cable landing station in any of the
cable's destination markets. Include the citizenship of each applicant and
information and certifications required in §§63.18(h) through (k), and in
§63.18(o), of this chapter;
(9) A certification that the applicant accepts and will abide by the routine
conditions specified in paragraph (g) of this section; and
(10) Any other information that may be necessary to enable the Commission to
act on the application.
(11)(i) If applying for authority to assign or transfer control of an
interest in a cable system, the applicant shall complete paragraphs (a)(1)
through (a)(3) of this section for both the transferor/assignor and the
transferee/assignee. Only the transferee/assignee needs to complete
paragraphs (a)(8) through (a)(9) of this section. At the beginning of the
application, the applicant should also include a narrative of the means by
which the transfer or assignment will take place. The application shall also
specify, on a segment specific basis, the percentage of voting and ownership
interests being transferred or assigned in the cable system, including in a
U.S. cable landing station. The Commission reserves the right to request
additional information as to the particulars of the transaction to aid it in
making its public interest determination.
(ii) In the event the transaction requiring an assignment or transfer of
control application also requires the filing of a foreign carrier
affiliation notification pursuant to §1.768, the applicant shall reference
in the application the foreign carrier affiliation notification and the date
of its filing. See §1.768. See also paragraph (g)(7) of this section
(providing for post-transaction notification of pro forma assignments and
transfers of control).
(iii) An assignee or transferee must notify the Commission no later than
thirty (30) days after either consummation of the assignment or transfer or
a decision not to consummate the assignment or transfer. The notification
shall identify the file numbers under which the initial license and the
authorization of the assignment or transfer were granted.
(b) These applications are acted upon by the Commission after obtaining the
approval of the Secretary of State and such assistance from any executive
department or establishment of the Government as it may require.
(c) Original files relating to submarine cable landing licenses and
applications for licenses since June 30, 1934, are kept by the Commission.
Such applications for licenses (including all documents and exhibits filed
with and made a part thereof, with the exception of any maps showing the
exact location of the submarine cable or cables to be licensed) and the
licenses issued pursuant thereto, with the exception of such maps, shall,
unless otherwise ordered by the Commission, be open to public inspection in
the offices of the Commission in Washington, D.C.
(d) Original files relating to licenses and applications for licenses for
the landing operation of cables prior to June 30, 1934, were kept by the
Department of State, and such files prior to 1930 have been transferred to
the Executive and Foreign Affairs Branch of the General Records Office of
the National Archives. Requests for inspection of these files should,
however, be addressed to the Federal Communications Commission, Washington,
D.C., 20554; and the Commission will obtain such files for a temporary
period in order to permit inspection at the offices of the Commission.
(e) A separate application shall be filed with respect to each individual
cable system for which a license is requested, or for which modification or
amendment of a previous license is requested. The application fee for a non
common-carrier cable landing license is payment type code BJT. Applicants
for common carrier cable landing licenses shall pay the fees for both a
common carrier cable landing license (payment type code CXT) and overseas
cable construction (payment type code BIT). There is no application fee for
modification of a cable landing license, except that the fee for assignment
or transfer of control of a cable landing license is payment type code CUT.
See §1.1107(2) of this chapter.
(f) Applicants shall disclose to any interested member of the public, upon
written request, accurate information concerning the location and timing for
the construction of a submarine cable system authorized under this section.
This disclosure shall be made within 30 days of receipt of the request.
(g) Routine conditions. Except as otherwise ordered by the Commission, the
following rules apply to each licensee of a cable landing license granted on
or after March 15, 2002:
(1) Grant of the cable landing license is subject to:
(i) All rules and regulations of the Federal Communications Commission;
(ii) Any treaties or conventions relating to communications to which the
United States is or may hereafter become a party; and
(iii) Any action by the Commission or the Congress of the United States
rescinding, changing, modifying or amending any rights accruing to any
person by grant of the license;
(2) The location of the cable system within the territorial waters of the
United States of America, its territories and possessions, and upon its
shores shall be in conformity with plans approved by the Secretary of the
Army. The cable shall be moved or shifted by the licensee at its expense
upon request of the Secretary of the Army, whenever he or she considers such
course necessary in the public interest, for reasons of national defense, or
for the maintenance and improvement of harbors for navigational purposes;
(3) The licensee shall at all times comply with any requirements of United
States government authorities regarding the location and concealment of the
cable facilities, buildings, and apparatus for the purpose of protecting and
safeguarding the cables from injury or destruction by enemies of the United
States of America;
(4) The licensee, or any person or company controlling it, controlled by it,
or under direct or indirect common control with it, does not enjoy and shall
not acquire any right to handle traffic to or from the United States, its
territories or its possessions unless such service is authorized by the
Commission pursuant to section 214 of the Communications Act, as amended;
(5)(i) The licensee shall be prohibited from agreeing to accept special
concessions directly or indirectly from any foreign carrier, including any
entity that owns or controls a foreign cable landing station, where the
foreign carrier possesses sufficient market power on the foreign end of the
route to affect competition adversely in the U.S. market, and from agreeing
to accept special concessions in the future.
(ii) For purposes of this section, a special concession is defined as an
exclusive arrangement involving services, facilities, or functions on the
foreign end of a U.S. international route that are necessary to land,
connect, or operate submarine cables, where the arrangement is not offered
to similarly situated U.S. submarine cable owners,
indefeasible-right-of-user holders, or lessors, and includes arrangements
for the terms for acquisition, resale, lease, transfer and use of capacity
on the cable; access to collocation space; the opportunity to provide or
obtain backhaul capacity; access to technical network information; and
interconnection to the public switched telecommunications network.
Note to paragraph (g)(5): Licensees may rely on the Commission's list of
foreign carriers that do not qualify for the presumption that they lack
market power in particular foreign points for purposes of determining which
foreign carriers are the subject of the requirements of this section. The
Commission's list of foreign carriers that do not qualify for the
presumption that they lack market power is available from the International
Bureau's World Wide Web site at http://www.fcc.gov/ib.
(6) Except as provided in paragraph (g)(7) of this section, the cable
landing license and rights granted in the license shall not be transferred,
assigned, or disposed of, or disposed of indirectly by transfer of control
of the licensee, unless the Federal Communications Commission gives prior
consent in writing;
(7) A pro forma assignee or person or company that is the subject of a pro
forma transfer of control of a cable landing license is not required to seek
prior approval for the pro forma transaction. A pro forma assignee or person
or company that is the subject of a pro forma transfer of control must
notify the Commission no later than thirty (30) days after the assignment or
transfer of control is consummated. The notification must certify that the
assignment or transfer of control was pro forma , as defined in §63.24 of
this chapter, and, together with all previous pro forma transactions, does
not result in a change of the licensee's ultimate control. The licensee may
file a single notification for an assignment or transfer of control of
multiple licenses issued in the name of the licensee if each license is
identified by the file number under which it was granted;
(8) Unless the licensee has notified the Commission in the application of
the precise locations at which the cable will land, as required by paragraph
(a)(5) of this section, the licensee shall notify the Commission no later
than ninety (90) days prior to commencing construction at that landing
location. The Commission will give public notice of the filing of each
description, and grant of the cable landing license will be considered final
with respect to that landing location unless the Commission issues a notice
to the contrary no later than sixty (60) days after receipt of the specific
description. See paragraph (a)(5) of this section;
(9) The Commission reserves the right to require the licensee to file an
environmental assessment should it determine that the landing of the cable
at the specific locations and construction of necessary cable landing
stations may significantly affect the environment within the meaning of
§1.1307 implementing the National Environmental Policy Act of 1969. See
§1.1307(a) and (b). The cable landing license is subject to modification by
the Commission under its review of any environmental assessment or
environmental impact statement that it may require pursuant to its rules.
See also §1.1306 note 1 and §1.1307(c) and (d);
(10) The Commission reserves the right, pursuant to section 2 of the Cable
Landing License Act, 47 U.S.C. 35, Executive Order No. 10530 as amended, and
section 214 of the Communications Act of 1934, as amended, 47 U.S.C. 214, to
impose common carrier regulation or other regulation consistent with the
Cable Landing License Act on the operations of the cable system if it finds
that the public interest so requires;
(11) The licensee, or in the case of multiple licensees, the licensees
collectively, shall maintain de jure and de facto control of the U.S.
portion of the cable system, including the cable landing stations in the
United States, sufficient to comply with the requirements of the
Commission's rules and any specific conditions of the license;
(12) The licensee shall comply with the requirements of §1.768;
(13) The cable landing license is revocable by the Commission after due
notice and opportunity for hearing pursuant to section 2 of the Cable
Landing License Act, 47 U.S.C. 35, or for failure to comply with the terms
of the license or with the Commission's rules; and
(14) The licensee must notify the Commission within thirty (30) days of the
date the cable is placed into service. The cable landing license shall
expire twenty-five (25) years from the in-service date, unless renewed or
extended upon proper application. Upon expiration, all rights granted under
the license shall be terminated.
(h) Applicants/Licensees. Except as otherwise required by the Commission,
the following entities, at a minimum, shall be applicants for, and licensees
on, a cable landing license:
(1) Any entity that owns or controls a cable landing station in the United
States; and
(2) All other entities owning or controlling a five percent (5%) or greater
interest in the cable system and using the U.S. points of the cable system.
(i) Processing of cable landing license applications. The Commission will
take action upon an application eligible for streamlined processing, as
specified in paragraph (k) of this section, within forty-five (45) days
after release of the public notice announcing the application as acceptable
for filing and eligible for streamlined processing. If the Commission deems
an application seeking streamlined processing acceptable for filing but
ineligible for streamlined processing, or if an applicant does not seek
streamlined processing, the Commission will issue public notice indicating
that the application is ineligible for streamlined processing. Within ninety
(90) days of the public notice, the Commission will take action upon the
application or provide public notice that, because the application raises
questions of extraordinary complexity, an additional 90-day period for
review is needed. Each successive 90-day period may be so extended.
(j) Applications for streamlining. Each applicant seeking to use the
streamlined grant procedure specified in paragraph (i) of this section shall
request streamlined processing in its application. Applications for
streamlined processing shall include the information and certifications
required by paragraph (k) of this section. On the date of filing with the
Commission, the applicant shall also send a complete copy of the
application, or any major amendments or other material filings regarding the
application, to: U.S. Coordinator, EB/CIP, U.S. Department of State, 2201 C
Street, NW., Washington, DC 20520–5818; Office of Chief Counsel/NTIA, U.S.
Department of Commerce, 14th St. and Constitution Ave., NW., Washington, DC
20230; and Defense Information Systems Agency, Code RGC, 701 S. Courthouse
Road, Arlington, Va. 22204, and shall certify such service on a service list
attached to the application or other filing.
(k) Eligibility for streamlining. Each applicant must demonstrate
eligibility for streamlining by:
(1) Certifying that it is not a foreign carrier and it is not affiliated
with a foreign carrier in any of the cable's destination markets;
(2) Demonstrating pursuant to §63.12(c)(l)(i) through (iii) of this chapter
that any such foreign carrier or affiliated foreign carrier lacks market
power; or
(3) Certifying that the destination market where the applicant is, or has an
affiliation with, a foreign carrier is a World Trade Organization (WTO)
Member and the applicant agrees to accept and abide by the reporting
requirements set out in paragraph (l) of this section. An application that
includes an applicant that is, or is affiliated with, a carrier with market
power in a cable's non-WTO Member destination country is not eligible for
streamlining.
(l) Reporting Requirements Applicable to Licensees Affiliated with a Carrier
with Market Power in a Cable's WTO Destination Market. Any licensee that is,
or is affiliated with, a carrier with market power in any of the cable's WTO
Member destination countries, and that requests streamlined processing of an
application under paragraphs (j) and (k) of this section, must comply with
the following requirements:
(1) File quarterly reports summarizing the provisioning and maintenance of
all network facilities and services procured from the licensee's affiliate
in that destination market, within ninety (90) days from the end of each
calendar quarter. These reports shall contain the following:
(i) The types of facilities and services provided (for example, a lease of
wet link capacity in the cable, collocation of licensee's equipment in the
cable station with the ability to provide backhaul, or cable station and
backhaul services provided to the licensee);
(ii) For provisioned facilities and services, the volume or quantity
provisioned, and the time interval between order and delivery; and
(iii) The number of outages and intervals between fault report and facility
or service restoration; and
(2) File quarterly circuit status reports, within ninety (90) days from the
end of each calendar quarter and in the format set out by the §43.82 of this
chapter annual circuit status manual with the exception that activated or
idle circuits must be reported on a facility-by-facility basis and derived
circuits need not be specified. See §63.10(c)(5) of this chapter.
(m) (1) Except as specified in paragraph (m)(2) of this section, amendments
to pending applications, and applications to modify a license, including
amendments or applications to add a new applicant or licensee, shall be
signed by each initial applicant or licensee, respectively. Joint applicants
or licensees may appoint one party to act as proxy for purposes of complying
with this requirement.
(2) Any licensee that seeks to relinquish its interest in a cable landing
license shall file an application to modify the license. Such application
must include a demonstration that the applicant is not required to be a
licensee under paragraph (h) of this section and that the remaining
licensee(s) will retain collectively de jure and de facto control of the
U.S. portion of the cable system sufficient to comply with the requirements
of the Commission's rules and any specific conditions of the license, and
must be served on each other licensee of the cable system.
(n) Subject to the availability of electronic forms, all applications and
notifications described in this section must be filed electronically through
the International Bureau Filing System (IBFS). A list of forms that are
available for electronic filing can be found on the IBFS homepage. For
information on electronic filing requirements, see part 1, §§1.1000 through
1.10018 and the IBFS homepage at http://www.fcc.gov/ibfs. See also §§63.20
and 63.53 of this chapter.
Note to §1.767: The terms “affiliated” and “foreign carrier,” as used in
this section, are defined as in §63.09 of this chapter except that the term
“foreign carrier” also shall include any entity that owns or controls a
cable landing station in a foreign market.
[ 28 FR 12450 , Nov. 22, 1963, as amended at 52 FR 5289 , Feb. 20, 1987; 61 FR 15726 , Apr. 9, 1996; 64 FR 19061 , Apr. 19, 1999; 65 FR 51769 , Aug. 25, 2000;
65 FR 54799 , Sept. 11, 2000; 67 FR 1619 , Jan. 14, 2002; 69 FR 40327 , July 2,
2004; 70 FR 38796 , July 6, 2005]
§ 1.768 Notification by and prior approval for submarine cable landing
licensees that are or propose to become affiliated with a foreign carrier.
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Any entity that is licensed by the Commission (“licensee”) to land or
operate a submarine cable landing in a particular foreign destination market
that becomes, or seeks to become, affiliated with a foreign carrier that is
authorized to operate in that market, including an entity that owns or
controls a cable landing station in that market, shall notify the Commission
of that affiliation.
(a) Affiliations requiring prior notification: Except as provided in
paragraph (b) of this section, the licensee must notify the Commission,
pursuant to this section, forty-five (45) days before consummation of either
of the following types of transactions:
(1) Acquisition by the licensee, or by any entity that controls the
licensee, or by any entity that directly or indirectly owns more than
twenty-five percent (25%) of the capital stock of the licensee, of a
controlling interest in a foreign carrier that is authorized to operate in a
market where the cable lands; or
(2) Acquisition of a direct or indirect interest greater than twenty-five
percent (25%), or of a controlling interest, in the capital stock of the
licensee by a foreign carrier that is authorized to operate in a market
where the cable lands, or by an entity that controls such a foreign carrier.
(b) Exceptions: (1) Notwithstanding paragraph (a) of this section, the
notification required by this section need not be filed before consummation,
and may instead by filed pursuant to paragraph (c) of this section, if
either of the following is true with respect to the named foreign carrier,
regardless of whether the destination market where the cable lands is a
World Trade Organization (WTO) or non-WTO Member:
(i) The Commission has previously determined in an adjudication that the
foreign carrier lacks market power in that destination market (for example,
in an international section 214 application or a declaratory ruling
proceeding); or
(ii) The foreign carrier owns no facilities in that destination market. For
this purpose, a carrier is said to own facilities if it holds an ownership,
indefeasible-right-of-user, or leasehold interest in a cable landing station
or in bare capacity in international or domestic telecommunications
facilities (excluding switches).
(2) In the event paragraph (b)(1) of this section cannot be satisfied,
notwithstanding paragraph (a) of this section, the notification required by
this section need not be filed before consummation, and may instead be filed
pursuant to paragraph (c) of this section, if the licensee certifies that
the destination market where the cable lands is a WTO Member and provides
certification to satisfy either of the following:
(i) The licensee demonstrates that its foreign carrier affiliate lacks
market power in the cable's destination market pursuant to §63.10(a)(3) of
this chapter ( see §63.10(a)(3) of this chapter); or
(ii) The licensee agrees to comply with the reporting requirements contained
in §1.767(l) effective upon the acquisition of the affiliation. See
§1.767(l).
(c) Notification after consummation: Any licensee that becomes affiliated
with a foreign carrier and has not previously notified the Commission
pursuant to the requirements of this section shall notify the Commission
within thirty (30) days after consummation of the acquisition.
Example 1 to paragraph (c). Acquisition by a licensee (or by any entity
that directly or indirectly controls, is controlled by, or is under direct
or indirect common control with the licensee) of a direct or indirect
interest in a foreign carrier that is greater than twenty-five percent (25%)
but not controlling is subject to paragraph (c) of this section but not to
paragraph (a) of this section.
Example 2 to paragraph (c). Notification of an acquisition by a licensee
of a hundred percent (100%) interest in a foreign carrier may be made after
consummation, pursuant to paragraph (c) of this section, if the foreign
carrier operates only as a resale carrier.
Example 3 to paragraph (c). Notification of an acquisition by a foreign
carrier from a WTO Member of a greater than twenty-five percent (25%)
interest in the capital stock of the licensee may be made after
consummation, pursuant to paragraph (c) of this section, if the licensee
demonstrates in the post-notification that the foreign carrier lacks market
power in the cable's destination market or the licensee agrees to comply
with the reporting requirements contained in §1.767(l) effective upon the
acquisition of the affiliation.
(d) Cross-reference: In the event a transaction requiring a foreign carrier
notification pursuant to this section also requires a transfer of control or
assignment application pursuant to the requirements of the license granted
under §1.767 or §1.767(g), the foreign carrier notification shall reference
in the notification the transfer of control or assignment application and
the date of its filing. See §1.767(g).
(e) Contents of notification: The notification shall certify the following
information:
(1) The name of the newly affiliated foreign carrier and the country or
countries at the foreign end of the cable in which it is authorized to
provide telecommunications services to the public or where it owns or
controls a cable landing station;
(2) Which, if any, of those countries is a Member of the World Trade
Organization;
(3) The name of the cable system that is the subject of the notification,
and the FCC file number(s) under which the license was granted;
(4) The name, address, citizenship, and principal business of any person or
entity that directly or indirectly owns at least ten percent (10%) of the
equity of the licensee, and the percentage of equity owned by each of those
entities (to the nearest one percent (1%));
(5) Interlocking directorates. The name of any interlocking directorates, as
defined in §63.09(g) of this chapter, with each foreign carrier named in the
notification. See §63.09(g) of this chapter.
(6) With respect to each foreign carrier named in the notification, a
statement as to whether the notification is subject to paragraph (a) or (c)
of this section. In the case of a notification subject to paragraph (a) of
this section, the licensee shall include the projected date of closing. In
the case of a notification subject to paragraph (c) of this section, the
licensee shall include the actual date of closing.
(7) If a licensee relies on an exception in paragraph (b) of this section,
then a certification as to which exception the foreign carrier satisfies and
a citation to any adjudication upon which the licensee is relying. Licensees
relying upon the exceptions in paragraph (b)(2) of this section must make
the required certified demonstration in paragraph (b)(2)(i) of this section
or the certified commitment to comply with the reporting requirements in
paragraph (b)(2)(ii) of this section in the notification required by
paragraph (c) of this section.
(f) If the licensee seeks to be excepted from the reporting requirements
contained in §1.767(l), the licensee should demonstrate that each foreign
carrier affiliate named in the notification lacks market power pursuant to
§63.10(a)(3) of this chapter. See §63.10(a)(3) of this chapter.
(g) Procedure. After the Commission issues a public notice of the
submissions made under this section, interested parties may file comments
within fourteen (14) days of the public notice.
(1) If the Commission deems it necessary at any time before or after the
deadline for submission of public comments, the Commission may impose
reporting requirements on the licensee based on the provisions of §1.767(l).
See §1.767(l).
(2) In the case of a prior notification filed pursuant to paragraph (a) of
this section in which the foreign carrier is authorized to operate in, or
own a cable landing station in, a non-WTO Member, the licensee must
demonstrate that it continues to serve the public interest for it to retain
its interest in the cable landing license for that segment of the cable that
lands in the non-WTO destination market by demonstrating either that the
foreign carrier lacks market power in that destination market pursuant to
§63.10(a)(3) of this chapter or the market offers effective opportunities
for U.S. companies to land and operate a submarine cable in that country. If
the licensee is unable to make either required showing or is notified that
the affiliation may otherwise harm the public interest pursuant to the
Commission's policies and rules under 47 U.S.C. 34 through 39 and Executive
Order No. 10530, dated May 10, 1954, then the Commission may impose
conditions necessary to address any public interest harms or may proceed to
an immediate authorization revocation hearing.
Note to paragraph (g)(2): The assessment of whether a destination market
offers effective opportunities for U.S. companies to land and operate a
submarine cable will be made under the standard established in Rules and
Policies on Foreign Participation in the U.S. Telecommunications Market,
Market Entry and Regulation of Foreign-Affiliated Entities, IB Docket Nos.
97–142 and 95–22, Report and Order and Order on Reconsideration, 12 FCC Rcd
23891, 23946 at paragraph 130, 62 FR 64741 , December 9, 1997.
(h) All licensees are responsible for the continuing accuracy of information
provided pursuant to this section for a period of forty-five (45) days after
filing. During this period if the information furnished is no longer
accurate, the licensee shall as promptly as possible, and in any event
within ten (10) days, unless good cause is shown, file with the Commission a
corrected notification referencing the FCC file numbers under which the
original notification was provided.
(i) A licensee that files a prior notification pursuant to paragraph (a) of
this section may request confidential treatment of its filing, pursuant to
§0.459 of this chapter, for the first twenty (20) days after filing.
(j) Subject to the availability of electronic forms, all notifications
described in this section must be filed electronically through the
International Bureau Filing System (IBFS). A list of forms that are
available for electronic filing can be found on the IBFS homepage. For
information on electronic filing requirements, see part 1, §§1.1000 through
1.10018 and the IBFS homepage at http://www.fcc.gov/ibfs. See also §§63.20
and 63.53.
Note to §1.768: The terms “affiliated” and “foreign carrier,” as used in
this section, are defined as in §63.09 of this chapter except that the term
“foreign carrier” also shall include an entity that owns or controls a cable
landing station in a foreign market.
[ 67 FR 1622 , Jan. 14, 2002, as amended at 70 FR 38797 , July 6, 2005]
Tariffs
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§ 1.771 Filing.
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Schedules of charges, and classifications, practices, and regulations
affecting such charges, required under section 203 of the Communications Act
shall be constructed, filed, and posted in accordance with and subject to
the requirements of part 61 of this chapter.
§ 1.772 Application for special tariff permission.
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Applications under section 203 of the Communications Act for special tariff
permission shall be made in the form and manner, with the number of copies
set out in part 61 of this chapter.
[ 52 FR 5289 , Feb. 20, 1987]
§ 1.773 Petitions for suspension or rejection of new tariff filings.
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(a) Petition —(1) Content. Petitions seeking investigation, suspension, or
rejection of a new or revised tariff filing or any provision thereof shall
specify the filing's Federal Communications Commission tariff number and
carrier transmittal number, the items against which protest is made, and the
specific reasons why the protested tariff filing warrants investigation,
suspension, or rejection under the Communications Act. No petition shall
include a prayer that it also be considered a formal complaint. Any formal
complaint shall be filed as a separate pleading as provided in §1.721.
(i) Petitions seeking investigation, suspension, or rejection of a new or
revised tariff filing or any provision of such a publication, must specify
the pertinent Federal Communications Commission tariff number and carrier
transmittal number; the matters protested; and the specific reasons why the
tariff warrants investigation, suspension, or rejection. When a single
petition asks for more than one form of relief, it must separately and
distinctly plead and support each form of relief. However, no petition may
ask that it also be considered a formal complaint. Formal complaints must be
separately lodged, as provided in §1.721.
(ii) For purposes of this section, tariff filings by nondominant carriers
will be considered prima facie lawful, and will not be suspended by the
Commission unless the petition requesting suspension shows:
(A) That there is a high probability the tariff would be found unlawful
after investigation;
(B) That the harm alleged to competition would be more substantial than the
injury to the public arising from the unavailability of the service pursuant
to the rates and conditions proposed in the tariff filing;
(C) That irreparable injury will result if the tariff filing is not
suspended; and
(D) That the suspension would not otherwise be contrary to the public
interest.
(iii) For the purpose of this section, any tariff filing by a local exchange
carrier filed pursuant to the requirements of §61.39 will be considered
prima facie lawful and will not be suspended by the Commission unless the
petition requesting suspension shows that the cost and demand studies or
average schedule information was not provided upon reasonable request. If
such a showing is not made, then the filing will be considered prima facie
lawful and will not be suspended by the Commission unless the petition
requesting suspension shows each of the following:
(A) That there is a high probability the tariff would be found unlawful
after investigation;
(B) That any unreasonable rate would not be corrected in a subsequent
filing;
(C) That irreparable injury will result if the tariff filing is not
suspended; and
(D) That the suspension would not otherwise be contrary to the public
interest.
(iv) For the purposes of this section, tariff filings made pursuant to
§61.49(b) by carriers subject to price cap regulation will be considered
prima facie lawful, and will not be suspended by the Commission unless the
petition shows that the support information required in §61.49(b) was not
provided, or unless the petition requesting suspension shows each of the
following:
(A) That there is a high probability the tariff would be found unlawful
after investigation;
(B) That the suspension would not substantially harm other interested
parties;
(C) That irreparable injury will result if the tariff filing is not
suspended; and
(D) That the suspension would not otherwise be contrary to the public
interest.
(v) For the purposes of this section, any tariff filing by a price cap LEC
filed pursuant to the requirements of §61.42(d)(4)(ii) of this chapter will
be considered prima facie lawful, and will not be suspended by the
Commission unless the petition requesting suspension shows each of the
following:
(A) That there is a high probability the tariff would be found unlawful
after investigation;
(B) That any unreasonable rate would not be corrected in a subsequent
filing;
(C) That irreparable injury will result if the tariff filing is not
suspended; and
(D) That the suspension would not otherwise be contrary to the public
interest.
(2) When filed. All petitions seeking investigation, suspension, or
rejection of a new or revised tariff filing shall meet the filing
requirements of this paragraph. In case of emergency and within the time
limits provided, a telegraphic request for such relief may be sent to the
Commission setting forth succinctly the substance of the matters required by
paragraph (a)(1) of this section. A copy of any such telegraphic request
shall be sent simultaneously to the Chief, Wireline Competition Bureau, the
Chief, Pricing Policy Division, and the publishing carrier. Thereafter, the
request shall be confirmed by petition filed and served in accordance with
§1.773(a)(4).
(i) Petitions seeking investigation, suspension, or rejection of a new or
revised tariff filed pursuant to section 204(a)(3) of the Communications Act
made on 7 days notice shall be filed and served within 3 calendar days after
the date of the tariff filing.
(ii) Petitions seeking investigation, suspension, or rejection of a new or
revised tariff filing made on less than 15 days notice shall be filed and
served within 6 days after the date of the tariff filing.
(iii) Petitions seeking investigation, suspension, or rejection of a new or
revised tariff filing made on at least 15 but less than 30 days notice shall
be filed and served within 7 days after the date of the tariff filing.
(iv) Petitions seeking investigation, suspension, or rejection of a new or
revised tariff filing made on at least 30 but less than 90 days notice shall
be filed and served within 15 days after the date of the tariff filing.
(v) Petitions seeking investigation, suspension, or rejection of a new or
revised tariff filing mode on 90 or more days notice shall be filed and
served within 25 days after the date of the tariff filing.
(3) Computation of time. Intermediate holidays shall be counted in
determining the above filing dates. If the date for filing the petition
falls on a holiday, the petition shall be filed on the next succeeding
business day.
(4) Copies, service. An original and four copies of each petition shall be
filed with the Commission as follows: The original and three copies of each
petition shall be filed with the Secretary, 236 Massachusetts Ave., NE.,
Washington, DC 20002; one copy must be delivered directly to the
Commission's copy contractor. Additional, separate copies shall be served
simultaneously upon the Chief, Wireline Competition Bureau; and the Chief,
Pricing Policy Division. Petitions seeking investigation, suspension, or
rejection of a new or revised tariff made on 15 days or less notice shall be
served either personally or via facsimile on the filing carrier. If a
petition is served via facsimile, a copy of the petition must also be sent
to the filing carrier via first class mail on the same day of the facsimile
transmission. Petitions seeking investigation, suspension, or rejection of a
new or revised tariff filing made on more than 15 days notice may be served
on the filing carrier by mail.
(b) Reply —(1) When filed. A publishing carrier's reply to a petition for
relief from a tariff filing shall be filed in accordance with the following
periods:
(i) Replies to petitions seeking investigation, suspension, or rejection of
a new or revised tariff filed pursuant to section 204(a)(3) of the Act made
on 7 days notice shall be filed and served within 2 days after the date the
petition is filed with the Commission.
(ii) Replies to petitions seeking investigation, suspension, or rejection of
a new or revised tariff filing made on less than 15 days notice shall be
filed and served within 3 days after the date the petition is due to be
filed with the Commission.
(iii) Replies to petitions seeking investigation, suspension, or rejection
of a new or revised tariff filing made on at least 15 but less than 30 days
notice shall be filed and served within 4 days after service of the
petition.
(iv) Replies to petitions seeking investigation, suspension, or rejection of
a new or revised tariff filing made on at least 30 but less than 90 days
notice shall be filed and served within 5 days after service of the
petition.
(v) Replies to petitions seeking investigation, suspension, or rejection of
a new or revised tariff filing made on 90 or more days notice shall be filed
and served within 8 days after service of the petition.
(vi) Where all petitions against a tariff filing have not been filed on the
same day, the publishing carrier may file a consolidated reply to all the
petitions. The time for filing such a consolidated reply will begin to run
on the last date for timely filed petitions, as fixed by paragraphs (a)(2)
(i) through (iv) of this section, and the date on which the consolidated
reply is due will be governed by paragraphs (b)(1) (i) through (iv) of this
section.
(2) Computation of time. Intermediate holidays shall be counted in
determining the 3-day filing date for replies to petitions seeking
investigation, suspension, or rejection of a new or revised tariff filing
made on less than 15 days notice. Intermediate holidays shall not be counted
in determining filing dates for replies to petitions seeking investigation,
suspension, or rejection of a new or revised tariff filing made on 15 or
more days notice. When a petition is permitted to be served upon the filing
carrier by mail, an additional 3 days (counting holidays) may be allowed for
filing the reply. If the date for filing the reply falls on a holiday, the
reply may be filed on the next succeeding business day.
(3) Copies, service. An original and four copies of each reply shall be
filed with the Commission, as follows: the original and three copies must be
filed with the Secretary, 236 Massachusetts Ave., NE., Washington, DC 20002;
one copy must be delivered directly to the Commission's copy contractor.
Additional separate copies shall be served simultaneously upon the Chief,
Wireline Competition Bureau, the Chief, Pricing Policy Division and the
petitioner. Replies to petitions seeking investigation, suspension, or
rejection of a new or revised tariff made on 15 days or less notice shall be
served on petitioners personally or via facsimile. Replies to petitions
seeking investigation, suspension, or rejection of a new or revised tariff
made on more than 15 days notice may be served upon petitioner personally,
by mail or via facsimile.
[ 45 FR 64190 , Sept. 29, 1980, as amended at 49 FR 40876 , Oct. 18, 1984; 49 FR 49466 , Dec. 20, 1984; 52 FR 26682 , July 16, 1987; 54 FR 19840 , May 8,
1989; 58 FR 17529 , Apr. 5, 1993; 58 FR 51247 , Oct. 1, 1993; 62 FR 5777 , Feb.
7, 1997; 64 FR 51264 , Sept. 22, 1999; 65 FR 58466 , Sept. 29, 2000; 67 FR 13223 , Mar. 21, 2002; 71 FR 15618 , Mar. 29, 2006]
§ 1.774 Pricing flexibility.
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(a) Petitions. (1) A petition seeking pricing flexibility for specific
services pursuant to part 69, subpart H, of this chapter, with respect to a
metropolitan statistical area (MSA), as defined in §22.909(a) of this
chapter, or the non-MSA parts of a study area, must show that the price cap
LEC has met the relevant thresholds set forth in part 69, subpart H, of this
chapter.
(2) The petition must make a separate showing for each MSA for which the
petitioner seeks pricing flexibility, and for the portion of the study area
that falls outside any MSA.
(3) Petitions seeking pricing flexibility for services described in
§§69.709(a) and 69.711(a) of this chapter must include:
(i) The total number of wire centers in the relevant MSA or non-MSA parts of
a study area, as described in §69.707 of this chapter;
(ii) The number and location of the wire centers in which competitors have
collocated in the relevant MSA or non-MSA parts of a study area, as
described in §69.707 of this chapter;
(iii) In each wire center on which the price cap LEC bases its petition, the
name of at least one collocator that uses transport facilities owned by a
provider other than the price cap LEC to transport traffic from that wire
center; and
(iv)(A) The percentage of the wire centers in the relevant MSA or non-MSA
area, as described in §69.707 of this chapter, in which competitors have
collocated and use transport facilities owned by a provider other than the
price cap LEC to transport traffic from that wire center; or
(B) The percentage of total base period revenues generated by the services
at issue in the petition that are attributable to wire centers in the
relevant MSA or non-MSA area, as described in §69.707 of this chapter, in
which competitors have collocated and use transport facilities owned by a
provider other than the price cap LEC to transport traffic from that wire
center.
(4) Petitions seeking pricing flexibility for services described in
§69.713(a) of this chapter must make a showing sufficient to meet the
relevant requirements of §69.713 of this chapter.
(b) Confidential treatment. A price cap LEC wishing to request confidential
treatment of information contained in a pricing flexibility petition should
demonstrate, by a preponderance of the evidence, that the information should
be withheld from public inspection in accordance with the requirements of
§0.459 of this chapter.
(c) Oppositions. Any interested party may file comments or oppositions to a
petition for pricing flexibility. Comments and oppositions shall be filed no
later than 15 days after the petition is filed. Time shall be computed
pursuant to §1.4.
(d) Replies. The petitioner may file a reply to any oppositions filed in
response to its petition for pricing flexibility. Replies shall be filed no
later than 10 days after comments are filed. Time shall be computed pursuant
to §1.4.
(e) Copies, service. (1)(i) Any price cap LEC filing a petition for pricing
flexibility must submit its petition pursuant to the Commission's Electronic
Tariff Filing System (ETFS), following the procedures set forth in §61.14(a)
of this chapter.
(ii) The price cap LEC must provide to each party upon which the price cap
LEC relies to meet its obligations under paragraph (a)(3)(iii) of this
section, the information it provides about that party in its petition, even
if the price cap LEC requests that the information be kept confidential
under paragraph (b) of this section.
(A) The price cap LEC must certify in its pricing flexibility petition that
it has made such information available to the party.
(B) The price cap LEC may provide data to the party in redacted form,
revealing only that information to the party that relates to the party.
(C) The price cap LEC must provide to the Commission copies of the
information it provides to such parties.
(2)(i) Interested parties filing oppositions or comments in response to a
petition for pricing flexibility may file those comments through ETFS.
(ii) Any interested party electing to file an opposition or comment in
response to a pricing flexibility petition through a method other than ETFS
must file an original and four copies of each opposition or comment with the
Commission, as follows: the original and three copies of each pleading shall
be filed with the Secretary, 236 Massachusetts Ave., NE., Washington, DC
20002; one copy must be delivered directly to the Commission's copy
contractor. Additional, separate copies shall be served upon the Chief,
Wireline Competition Bureau and the Chief, Pricing Policy Division.
(iii) In addition, oppositions and comments shall be served either
personally or via facsimile on the petitioner. If an opposition or comment
is served via facsimile, a copy of the opposition or comment must be sent to
the petitioner via first class mail on the same day as the facsimile
transmission.
(3) Replies shall be filed with the Commission through ETFS. In addition,
petitioners choosing to file a reply must serve a copy on each party filing
an opposition or comment, either personally or via facsimile. If a reply is
served via facsimile, a copy of the reply must be sent to the recipient of
that reply via first class mail on the same day as the facsimile
transmission.
(f) Disposition. (1) A petition for pricing flexibility pertaining to
special access and dedicated transport services shall be deemed granted
unless the Chief, Wireline Competition Bureau, denies the petition no later
than 90 days after the close of the pleading cycle. The period for filing
applications for review begins the day the Bureau grants or denies the
petition, or the day that the petition is deemed denied. Time shall be
computed pursuant to §1.4.
(2) A petition for pricing flexibility pertaining to common-line and
traffic-sensitive services shall be deemed granted unless the Commission
denies the petition no later than five months after the close of the
pleading cycle. Time shall be computed pursuant to §1.4.
[ 64 FR 51264 , Sept. 22, 1999, as amended at 67 FR 13223 , Mar. 21, 2002; 71 FR 15618 , Mar. 29, 2006]
Contracts, Reports, and Requests Required to be Filed by Carriers
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§ 1.781 Requests for extension of filing time.
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Requests for extension of time within which to file contracts, reports, and
requests referred to in §§1.783 through 1.814 shall be made in writing and
may be granted for good cause shown.
Contracts
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§ 1.783 Filing.
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Copies of carrier contracts, agreements, concessions, licenses,
authorizations or other arrangements, shall be filed as required by part 43
of this chapter.
Financial and Accounting Reports and Requests
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§ 1.785 Annual financial reports.
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(a) An annual financial report shall be filed by telephone carriers and
affiliates as required by part 43 of this chapter on form M.
(b) Verified copies of annual reports filed with the Securities and Exchange
Commission on its Form 10–K, Form 1–MD, or such other form as may be
prescribed by that Commission for filing of equivalent information, shall be
filed annually with this Commission by each person directly or indirectly
controlling any communications common carrier in accordance with part 43 of
this chapter.
(c) Carriers having separate departments or divisions for carrier and
noncarrier operations shall file separate supplemental annual reports with
respect to such carrier and non-carrier operations in accordance with part
43 of this chapter.
[ 28 FR 12450 , Nov. 22, 1963, as amended at 31 FR 747 , Jan. 20, 1966; 47 FR 50697 , Nov. 9, 1982; 49 FR 36503 , Sept. 18, 1984; 50 FR 41152 , Oct. 9, 1985;
58 FR 36143 , July 6, 1993]
§ 1.786 [Reserved]
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§ 1.787 Reports of proposed changes in depreciation rates.
top
Carriers shall file reports regarding proposed changes in depreciation rates
as required by part 43 of this chapter.
§ 1.788 Reports regarding pensions and benefits.
top
Carriers shall file reports regarding pensions and benefits as required by
part 43 of this chapter.
§ 1.789 Reports regarding division of international telegraph communication
charges.
top
Carriers engaging in international telegraph communication shall file
reports in regard to the division of communication charges as required by
part 43 of this chapter.
§ 1.790 Reports relating to traffic by international carriers.
top
Carriers shall file periodic reports regarding international point-to-point
traffic as required by part 43 of this chapter.
[ 57 FR 8579 , Mar. 11, 1992]
§ 1.791 Reports and requests to be filed under part 32 of this chapter.
top
Reports and requests shall be filed either periodically, upon the happening
of specified events, or for specific approval by class A and class B
telephone companies in accordance with and subject to the provisions of part
32 of this chapter.
[ 55 FR 30461 , July 26, 1990]
§ 1.795 Reports regarding interstate rates of return.
top
Carriers shall file reports regarding interstate rates of return on FCC Form
492 as required by part 65 of this chapter.
[ 52 FR 274 , Jan. 5, 1987]
Services and Facilities Reports
top
§ 1.802 Reports relating to continuing authority to supplement facilities or
to provide temporary or emergency service.
top
Carriers receiving authority under part 63 of this chapter shall file
quarterly or semiannual reports as required therein.
§ 1.803 Reports relating to reduction in temporary experimental service.
top
As required in part 63 of this chapter, carriers shall report reductions in
service which had previously been expanded on an experimental basis for a
temporary period.
§ 1.805 Reports relating to service by carriers engaged in public radio
service operations.
top
Monthly and quarterly reports must be filed with the Commission in
connection with certain fixed public radio service operations. No form is
prescribed. A complete description of the contents of these reports is
contained in part 23 of this chapter.
Miscellaneous Reports
top
§ 1.811 Reports regarding amendments to charters, by-laws and partnership
agreements of carriers engaged in domestic public radio services.
top
Amendments to such documents shall be reported and filed in accordance with
part 21 of this chapter.
§ 1.814 Reports regarding free service rendered the Government for national
defense.
top
Carriers rendering free service in connection with the national defense to
any agency of the United States Government shall file reports in accordance
with part 2 of this chapter.
§ 1.815 Reports of annual employment.
top
(a) Each common carrier licensee or permittee with 16 or more full time
employees shall file with the Commission, on or before May 31 of each year,
on FCC Form 395, an annual employment report.
(b) A copy of every annual employment report filed by the licensee or
permittee pursuant to the provisions herein; and copies of all exhibits,
letters, and other documents filed as part thereof, all amendments thereto,
all correspondence between the permittee or licensee and the Commission
pertaining to the reports after they have been filed and all documents
incorporated herein by reference are open for public inspection at the
offices of the Commission.
(c) Cross references—
(1) [Reserved]
(2) Applicability of cable television EEO reporting requirements for FSS
facilities, see §25.601 of this chapter.
[ 35 FR 12894 , Aug. 14, 1970, as amended at 36 FR 3119 , Feb. 18, 1971; 58 FR 42249 , Aug. 9, 1993; 69 FR 72026 , Dec. 10, 2004]
Grants by Random Selection
top
§ 1.821 Scope.
top
The provisions of §§1.822 and 1.824 of this part apply as indicated to those
applications for permits, licenses or authorizations in the Multichannel
Multipoint Distribution Service for which action may be taken by the
Wireless Telecommunications Bureau pursuant to delegated authority.
[ 63 FR 68920 , Dec. 14, 1998, as amended at 67 FR 13224 , Mar. 21, 2002]
§ 1.822 General selection procedures.
top
(a) Mutually exclusive applications for permits and licenses in the services
specified in §1.821 may be designated for random selection according to the
procedures established for each service. Following the random selection, the
Commission shall determine whether the applicant is qualified to receive the
permit or license. If, after reviewing the tentative selectee's application
and pleadings properly filed against it, the Commission determines that a
substantial and material question of fact exists, it shall designate the
qualifying issue(s) for an expedited hearing.
(b) Expedited hearing procedures. (1) Hearings may be conducted by the
Commission or an Administrative Law Judge. In the case of a question which
requires oral testimony for its resolution, the hearing will be conducted by
an Administrative Law Judge.
(2) Parties have ten (10) days from publication in theFederal Registerof the
hearing designation order to file notices of appearance.
(3) When the Commission, under §1.221, issues an order stating the time,
place, and nature of the hearing, this order shall instruct the applicant to
submit its direct case in writing within thirty (30) days from the order's
release date, or as otherwise specified in the order. The direct written
case must set forth all those facts and circumstances related to the issues
in the designation order. Documentary evidence upon which the applicant
relies must be attached. Each exhibit must be numbered and must be
accompanied by an affidavit from someone who has personal knowledge of the
facts in the submission and who attests to the truth of the submission.
(4) The order will also specify those petitioners that directly raised an
issue which was designated and will inform these parties of their
opportunity to submit a written rebuttal case within twenty (20) days after
the direct case is due. The procedures in paragraph (b)(3) of this section
will apply as to documentary evidence, exhibits, and affidavits.
(5) Appeal of initial decisions rendered by an Administrative Law Judge
shall lie with the Commission.
[ 48 FR 27201 , June 13, 1983. Redesignated and amended at 50 FR 5991 , Feb.
13, 1985]
§ 1.824 Random selection procedures for Multichannel Multipoint Distribution
Service and Multipoint Distribution Service H-Channel stations.
top
(a) If there are mutually exclusive applications for an initial conditional
license or license, the Commission may use the random selection process to
select the conditional licensee or licensee. Each such random selection
shall be conducted under the direction of the Office of the Managing
Director in conjunction with the Office of the Secretary. Following the
random selection, the Commission shall announce the tentative selectee and
determine whether the applicant is qualified to receive the conditional
license or license. If the Commission determines that the tentative selectee
is qualified, it shall grant the application. In the event that the
tentative selectee's application is denied, a second random selection will
be conducted. Petitions for Reconsideration, Motions to Stay or Applications
for Review may be submitted at the time the Commission grants or denies the
application of the tentative selectee. The filing periods specified in the
rules shall apply for such pleadings.
(b) Competing applications for conditional licenses and licenses shall be
designated for random selection in accordance with §§1.1621, 1.1622 (a),
(b), (c), (d), and (e), and 1.1623. No preferences pursuant to §1.1622
(b)(2) or (b)(3) shall be granted to any MMDS or MDS H-channel applicant
whose owners, when aggregated, have an ownership interest of more than 50
percent in the media of mass communication whose service areas, as set forth
at §1.1622 (e)(1) through (e)(7), wholly encompass or are encompassed by the
protected service area contour, computed in accordance with §21.902(d) of
this chapter, for which the license or conditional license is sought.
(c) Petitions to Deny may be filed only against the tentative selectee.
These petitions must be filed within 30 days of the Public Notice announcing
such tentative selection. A consolidated reply may be filed within 15 days
of the due date for Petitions to Deny.
[ 50 FR 5992 , Feb. 13, 1985, as amended at 56 FR 57815 , Nov. 14, 1991]
Subpart F—Wireless Radio Services Applications and Proceedings
top
Source: 28 FR 12454 , Nov. 22, 1963, unless otherwise noted.
Scope and Authority
top
§ 1.901 Basis and purpose.
top
These rules are issued pursuant to the Communications Act of 1934, as
amended, 47 U.S.C. 151 et seq. The purpose of these rules is to establish
the requirements and conditions under which entities may be licensed in the
Wireless Radio Services as described in this part and in parts 13, 20, 22,
24, 26, 27, 74, 80, 87, 90, 95, 97 and 101 of this chapter.
[ 68 FR 12755 , Mar. 17, 2003]
§ 1.902 Scope.
top
In case of any conflict between the rules set forth in this subpart and the
rules set forth in Parts 13, 20, 22, 24, 26, 27, 74, 80, 87, 90, 95, 97, and
101 of title 47, chapter I of the Code of Federal Regulations, the rules in
part 1 shall govern.
[ 68 FR 12755 , Mar. 17, 2003]
§ 1.903 Authorization required.
top
(a) General rule. Stations in the Wireless Radio Services must be used and
operated only in accordance with the rules applicable to their particular
service as set forth in this title and with a valid authorization granted by
the Commission under the provisions of this part, except as specified in
paragraph (b) of this section.
(b) Restrictions. The holding of an authorization does not create any rights
beyond the terms, conditions and period specified in the authorization.
Authorizations may be granted upon proper application, provided that the
Commission finds that the applicant is qualified in regard to citizenship,
character, financial, technical and other criteria, and that the public
interest, convenience and necessity will be served. See §§301, 308, and 309,
310 of this chapter.
(c) Subscribers. Authority for subscribers to operate mobile or fixed
stations in the Wireless Radio Services, except for certain stations in the
Rural Radiotelephone Service, is included in the authorization held by the
licensee providing service to them. Subscribers are not required to apply
for, and the Commission does not accept, applications from subscribers for
individual mobile or fixed station authorizations in the Wireless Radio
Services. Individual authorizations are required to operate rural subscriber
stations in the Rural Radiotelephone Service, except as provided in §22.703
of this chapter. Individual authorizations are required for end users of
certain Specialized Mobile Radio Systems as provided in §90.655 of this
chapter. In addition, certain ships and aircraft are required to be
individually licensed under parts 80 and 87 of this chapter. See §§80.13,
87.18 of this chapter.
[ 63 FR 68921 , Dec. 14, 1998, as amended at 70 FR 19305 , Apr. 13, 2005]
§ 1.907 Definitions.
top
Antenna structure. The term antenna structure includes the radiating and
receiving elements, its supporting structures, towers, and all appurtenances
mounted thereon.
Application. A request on a standard form for a station license as defined
in §3(b) of the Communications Act, signed in accordance with §1.917 of this
part, or a similar request to amend a pending application or to modify or
renew an authorization. The term also encompasses requests to assign rights
granted by the authorization or to transfer control of entities holding
authorizations.
Auctionable license. A Wireless Radio Service license identified in §1.2102
of this part for which competitive bidding is used to select from among
mutually exclusive applications.
Auctionable license application. A Wireless Radio Service license
application identified in §1.2102 of this part for which competitive bidding
is used if the application is subject to mutually exclusive applications.
Authorization. A written instrument or oral statement issued by the FCC
conveying authority to operate, for a specified term, to a station in the
Wireless Telecommunications Services.
Authorized bandwidth. The maximum bandwidth permitted to be used by a
station as specified in the station license. See §2.202 of this chapter.
Authorized power. The maximum power a station is permitted to use. This
power is specified by the Commission in the station's authorization or
rules.
Control station. A fixed station, the transmissions of which are used to
control automatically the emissions or operations of a radio station, or a
remote base station transmitter.
Effective radiated power (ERP). The product of the power supplied to the
antenna multiplied by the gain of the antenna referenced to a half-wave
dipole.
Equivalent Isotopically Radiated Power (EIRP). The product of the power
supplied to the antenna multiplied by the antenna gain referenced to an
isotropic antenna.
Fixed station. A station operating at a fixed location.
Harmful interference. Interference that endangers the functioning of a
radionavigation service or of other safety services or seriously degrades,
obstructs, or repeatedly interrupts a radio communications service operating
in accordance with the Radio Regulations.
Mobile relay station. A fixed transmitter used to facilitate the
transmission of communications between mobile units.
Mobile station. A radio communication station capable of being moved and
which ordinarily does move.
Non-auctionable license. A Wireless Radio Service license identified in
§1.2102 of this part for which competitive bidding is not used to select
from among mutually exclusive applications.
Non-auctionable license application. A Wireless Radio Service license
application for which §1.2102 of this part precludes the use of competitive
bidding if the application is subject to mutually exclusive applications.
Private Wireless Services. Wireless Radio Services authorized by parts 80,
87, 90, 95, 97, and 101 that are not Wireless Telecommunications Services,
as defined in this part.
Radio station. A separate transmitter or a group of transmitters under
simultaneous common control, including the accessory equipment required for
carrying on a radio communications service.
Receipt date. The date an electronic or paper application is received at the
appropriate location at the Commission or Mellon Bank. Amendments to pending
applications may result in the assignment of a new receipt date in
accordance with §1.927 of this part.
Universal Licensing System. The Universal Licensing System (ULS) is the
consolidated database, application filing system, and processing system for
all Wireless Radio Services. ULS supports electronic filing of all
applications and related documents by applicants and licensees in the
Wireless Radio Services, and provides public access to licensing
information.
Wireless Radio Services. All radio services authorized in parts 13, 20, 22,
24, 26, 27, 74, 80, 87, 90, 95, 97 and 101 of this chapter, whether
commercial or private in nature.
Wireless Telecommunications Services. Wireless Radio Services, whether fixed
or mobile, that meet the definition of “telecommunications service” as
defined by 47 U.S.C. 153, as amended, and are therefore subject to
regulation on a common carrier basis. Wireless Telecommunications Services
include all radio services authorized by parts 20, 22, 24, 26, and 27 of
this chapter. In addition, Wireless Telecommunications Services include
Public Coast Stations authorized by part 80 of this chapter, Commercial
Mobile Radio Services authorized by part 90 of this chapter, and common
carrier fixed microwave services, Local Television Transmission Service
(LTTS), Local Multipoint Distribution Service (LMDS), and Digital Electronic
Message Service (DEMS), authorized by part 101 of this chapter.
[ 63 FR 68921 , Dec. 14, 1998]
Application Requirements and Procedures
top
§ 1.911 Station files.
top
Applications, notifications, correspondence, electronic filings and other
material, and copies of authorizations, comprising technical, legal, and
administrative data relating to each station in the Wireless Radio Services
are maintained by the Commission in ULS. These files constitute the official
records for these stations and supersede any other records, database or
lists from the Commission or other sources.
[ 63 FR 68922 , Dec. 14, 1998]
§ 1.913 Application and notification forms; electronic and manual filing.
top
(a) Application and notification forms. Applicants, licensees, and spectrum
lessees (see §1.9003) shall use the following forms and associated schedules
for all applications and notifications:
(1) FCC Form 601, Application for Authorization in the Wireless Radio
Services. FCC Form 601 and associated schedules is used to apply for initial
authorizations, modifications to existing authorizations, amendments to
pending applications, renewals of station authorizations, developmental
authorizations, special temporary authority, notifications, requests for
extension of time, and administrative updates.
(2) FCC Form 602, Wireless Radio Services Ownership Form. FCC Form 602 is
used by applicants and licensees in auctionable services to provide and
update ownership information as required by §§1.919, 1.948, 1.2112, and any
other section that requires the submission of such information.
(3) FCC Form 603, Application for Assignment of Authorization or Transfer of
Control. FCC Form 603 is used by applicants and licensees to apply for
Commission consent to assignments of existing authorizations, to apply for
Commission consent to transfer control of entities holding authorizations,
to notify the Commission of the consummation of assignments or transfers,
and to request extensions of time for consummation of assignments or
transfers. It is also used for Commission consent to partial assignments of
authorization, including partitioning and disaggregation.
(4) FCC Form 605, Quick-form Application for Authorization for Wireless
Radio Services. FCC Form 605 is used to apply for Amateur, Ship, Aircraft,
and General Mobile Radio Service (GMRS) authorizations, as well as
Commercial Radio Operator Licenses.
(5) FCC Form 608, Notification or Application for Spectrum Leasing
Arrangement. FCC Form 608 is used by licensees and spectrum lessees ( see
§1.9003) to notify the Commission regarding spectrum manager leasing
arrangements and to apply for Commission consent for de facto transfer
leasing arrangements pursuant to the rules set forth in part 1, subpart X.
It is also used to notify the Commission if a licensee or spectrum lessee
establishes a private commons ( see §1.9080).
(6) FCC Form 609, Application to Report Eligibility Event. FCC Form 609 is
used by licensees to apply for Commission approval of reportable eligibility
events, as defined in §1.2114.
(b) Electronic filing. Except as specified in paragraph (d) of this section
or elsewhere in this chapter, all applications and other filings using the
application and notification forms listed in this section or associated
schedules must be filed electronically in accordance with the electronic
filing instructions provided by ULS. For each Wireless Radio Service that is
subject to mandatory electronic filing, this paragraph is effective on July
1, 1999, or six months after the Commission begins use of ULS to process
applications in the service, whichever is later. The Commission will
announce by public notice the deployment date of each service in ULS.
(1) Attachments to applications and notifications should be uploaded along
with the electronically filed applications and notifications whenever
possible. The files, other than the ASCII table of contents, should be in
Adobe Acrobat Portable Document Format (PDF) whenever possible.
(2) Any associated documents submitted with an application or notification
must be uploaded as attachments to the application or notification whenever
possible. The attachment should be uploaded via ULS in Adobe Acrobat
Portable Document Format (PDF) whenever possible.
(c) Auctioned license applications. Auctioned license applications, as
defined in §1.907 of this part, shall also comply with the requirements of
subpart Q of this part and the applicable Commission orders and public
notices issued with respect to each auction for a particular service and
spectrum.
(d) Manual filing. (1) ULS Forms 601, 603, 605, and 608 may be filed
manually or electronically by applicants and licensees in the following
services:
(i) The part 90 Private Land Mobile Radio services for shared spectrum,
spectrum in the public safety pool below 746 MHz, and spectrum in the public
safety allocation above 746 MHz, except those filed by Commission-certified
frequency coordinators;
(ii) The part 97 Amateur Radio Service, except those filed by Volunteer
Examination Coordinators;
(iii) The part 95 General Mobile Radio Service and Personal Radio Service
(excluding 218–219 MHz service);
(iv) The part 80 Maritime Services (excluding the VHF 156–162 MHz Public
Coast Stations);
(v) The part 87 Aviation Services;
(vi) Part 13 Commercial Radio Operators; and
(vii) Part 101 licensees who are also members of any of the groups listed in
paragraph (d)(1)(i) through (d)(1)(vi) of this section.
(2) Manually filed applications must be submitted to the Commission at the
appropriate address with the appropriate filing fee. The addresses for
filing and the fee amounts for particular applications are listed in Subpart
G of this part, and in the appropriate fee filing guide for each service
available from the Commission's Forms Distribution Center by calling
1–800–418-FORM (3676).
(3) Manually filed applications requiring fees as set forth at Subpart G, of
this part must be filed in accordance with §0.401(b).
(4) Manually filed applications that do not require fees must be addressed
and sent to Federal Communications Commission, 1270 Fairfield Road,
Gettysburg, Pennsylvania 17325–7245.
(5) Standard forms may be reproduced and the copies used in accordance with
the provisions of §0.409 of this chapter.
(6) Attachments to manually filed applications may be filed on a standard
3.5 magnetic diskette formatted to be readable by high density floppy drives
operating under MS-DOS (version 3.X or later compatible versions). Each
diskette submitted must contain an ASCII text file listing each filename and
a brief description of the contents of each file and format for each
document on the diskette. The files on the diskette, other than the table of
contents, should be in Adobe Acrobat Portable Document Format (PDF) whenever
possible. All diskettes submitted must be legibly labelled referencing the
application and its filing date.
(e) Applications requiring prior coordination. Parties filing applications
that require frequency coordination shall, prior to filing, complete all
applicable frequency coordination requirements in service-specific rules
contained within this chapter. After appropriate frequency coordination,
such applications may be electronically filed via ULS or, if filed manually,
must be forwarded to the appropriate address with the appropriate filing fee
(if applicable) in accordance with subparagraph (d). Applications filed by
the frequency coordinator on behalf of the applicant must be filed
electronically.
(f) Applications for Amateur licenses. Each candidate for an amateur radio
operator license which requires the applicant to pass one or more
examination elements must present the administering Volunteer Examiners (VE)
with all information required by the rules prior to the examination. The VEs
may collect the information required by these rules in any manner of their
choosing, including creating their own forms. Upon completion of the
examination, the administering VEs will immediately grade the test papers
and will then issue a certificate for successful completion of an amateur
radio operator examination (CSCE) if the applicant is successful. The VEs
will send all necessary information regarding a candidate to the
Volunteer-Examiner Coordinator (VEC) coordinating the examination session.
Applications filed with the Commission by VECs must be filed electronically
via ULS. All other applications for amateur service licenses may be
submitted manually to FCC, 1270 Fairfield Road, Gettysburg, PA 17325–7245,
or may be electronically filed via ULS. Feeable requests for vanity call
signs must be filed in accordance with §0.401 of this chapter or
electronically filed via ULS.
(g) Section 337 Requests. Applications to provide public safety services
submitted pursuant to 47 U.S.C. 337 must be filed on the same form and in
the same manner as other applications for the requested frequency(ies),
except that applicants must select the service code reflective of the type
of service the applicant intends to provide.
[ 63 FR 68922 , Dec. 14, 1998, as amended at 66 FR 55 , Jan. 2, 2001; 67 FR 34851 , May 16, 2002; 68 FR 42995 , July 21, 2003; 68 FR 66276 , Nov. 25, 2003;
69 FR 77549 , Dec. 27, 2004; 71 FR 26251 , May 4, 2006]
Effective Date Note: At 69 FR 77549 , Dec. 27, 2004, §1.913(a)(5) was
added. This paragraph contains information collection and recordkeeping
requirements and will not become effective until approval has been given by
the Office of Management and Budget.
§ 1.915 General application requirements.
top
(a) General requirement. Except as provided in paragraph (b) of this
section, for all Wireless Radio Services, station licenses, as defined in
section 308(a) of the Communications Act, as amended, operator licenses,
modifications or renewals of licenses, assignments or transfers of control
of station licenses or any rights thereunder, and waiver requests associated
with any of the foregoing shall be granted only upon an application filed
pursuant to §§1.913 through 1.917 of this part.
(b)(1) Exception for emergency filings. The Commission may grant station
licenses, or modifications or renewals thereof, without the filing of a
formal application in the following cases:
(i) an emergency found by the Commission to involve danger to life or
property or to be due to damage to equipment;
(ii) a national emergency proclaimed by the President or declared by the
Congress and during the continuance of any war in which the United States is
engaged, when such action is necessary for the national defense or security
or otherwise in furtherance of the war effort; or
(iii) an emergency where the Commission finds that it would not be feasible
to secure renewal applications from existing licensees or otherwise to
follow normal licensing procedures.
(2) No such authorization shall be granted for or continue in effect beyond
the period of the emergency or war requiring it. The procedures to be
followed for emergency requests submitted under this subparagraph are the
same as for seeking special temporary authority under §1.931 of this part.
After the end of the period of emergency, the party must submit its request
by filing the appropriate FCC form in accordance with paragraph (a) of this
section.
[ 63 FR 68923 , Dec. 14, 1998]
§ 1.917 Who may sign applications.
top
(a) Except as provided in paragraph (b) of this section, applications,
amendments, and related statements of fact required by the Commission must
be signed as follows (either electronically or manually, see paragraph (d)
of this section): (1) By the applicant, if the applicant is an individual;
(2) by one of the partners if the applicant is a partnership; (3) by an
officer, director, or duly authorized employee, if the applicant is a
corporation; (4) by a member who is an officer, if the applicant is an
unincorporated association; or (5) by the trustee if the applicant is an
amateur radio service club. Applications, amendments, and related statements
of fact filed on behalf of eligible government entities such as states and
territories of the United States, their political subdivisions, the District
of Columbia, and units of local government, including unincorporated
municipalities, must be signed by a duly elected or appointed official who
is authorized to do so under the laws of the applicable jurisdiction.
(b) Applications, amendments, and related statements of fact required by the
Commission may be signed by the applicant's attorney in case of the
applicant's physical disability or absence from the United States, or by
applicant's designated vessel master when a temporary permit is requested
for a vessel. The attorney shall, when applicable, separately set forth the
reason why the application is not signed by the applicant. In addition, if
any matter is stated on the basis of the attorney's or master's belief only
(rather than knowledge), the attorney or master shall separately set forth
the reasons for believing that such statements are true. Only the original
of applications, amendments, and related statements of fact need be signed.
(c) Applications, amendments, and related statements of fact need not be
signed under oath. Willful false statements made therein, however, are
punishable by fine and imprisonment, 18 U.S.C. 1001, and by appropriate
administrative sanctions, including revocation of station license pursuant
to 312(a)(1) of the Communications Act of 1934, as amended.
(d) “Signed,” as used in this section, means, for manually filed
applications only, an original hand-written signature or, for electronically
filed applications only, an electronic signature. An electronic signature
shall consist of the name of the applicant transmitted electronically via
ULS and entered on the application as a signature.
[ 63 FR 68923 , Dec. 14, 1998]
§ 1.919 Ownership information.
top
(a) Applicants or licensees in Wireless Radio Services that are subject to
the ownership reporting requirements of §1.2112 shall use FCC Form 602 to
provide all ownership information required by the chapter.
(b) Any applicant or licensee that is subject to the reporting requirements
of §1.2112 or §1.2114 shall file an FCC Form 602, or file an updated form if
the ownership information on a previously filed FCC Form 602 is not current,
at the time it submits:
(1) An initial application for authorization (FCC Form 601);
(2) An application for license renewal (FCC Form 601);
(3) An application for assignment of authorization or transfer of control
(FCC Form 603); or
(4) A notification of consummation of a pro forma assignment of
authorization or transfer of control (FCC Form 603) under the Commission's
forbearance procedures (see §1.948(c ) of this part).
(5) An application reporting any reportable eligibility event, as defined in
§1.2114.
(c) Reporting of Cellular Cross-Ownership Interests. (1) A cellular licensee
of one channel block in a cellular geographic service area (CGSA) must
report current ownership information if the licensee, a party that owns a
controlling or otherwise attributable interest in the licensee, or a party
that actually controls the licensee, obtains a direct or indirect ownership
interest of more than 10 percent in a cellular licensee, a party that owns a
controlling or otherwise attributable interest in a cellular licensee, or a
party that actually controls a cellular licensee, for the other channel
block in an overlapping CGSA, if the overlap is located in whole or in part
in a Rural Service Area (RSA), as defined in §22.909 of this chapter. The
ownership information must be filed on a FCC Form 602 within 30 days of the
date of consummation of the transaction and reflect the specific levels of
investment.
(2) For the purposes of paragraph (c) of this section, the following
definitions and other provisions shall apply:
(i) Non-controlling interests. A direct or indirect non-attributable
interest in both systems is excluded from the reporting requirement set out
in paragraph (c)(1) of this section.
(ii) Ownership attribution. For purposes of paragraph (c) of this section,
ownership and other interests in cellular licensees will be attributed to
their holders pursuant to the following criteria:
(A) Controlling interest shall be attributable. Controlling interest means
majority voting equity ownership, any general partnership interest, or any
means of actual working control (including negative control) over the
operation of the licensee, in whatever manner exercised.
(B) Partnership and other ownership interests and any stock interest
amounting to 20 percent or more of the equity, or outstanding stock, or
outstanding voting stock of a cellular licensee shall be attributed.
(C) Non-voting stock shall be attributed as an interest in the issuing
entity if in excess of the amounts set forth in paragraph (c)(2)(ii)(B) of
this section.
(D) Debt and instruments such as warrants, convertible debentures, options,
or other interests (except non-voting stock) with rights of conversion to
voting interests shall not be attributed unless and until converted.
(E) Limited partnership interests shall be attributed to limited partners
and shall be calculated according to both the percentage of equity paid in
and the percentage of distribution of profits and losses.
(F) Officers and directors of a cellular licensee shall be considered to
have an attributable interest in the entity with which they are so
associated. The officers and directors of an entity that controls a cellular
licensee shall be considered to have an attributable interest in the
cellular licensee.
(G) Ownership interests that are held indirectly by any party through one or
more intervening corporations will be determined by successive
multiplication of the ownership percentages for each link in the vertical
ownership chain and application of the relevant attribution benchmark to the
resulting product, except that if the ownership percentage for an interest
in any link in the chain exceeds 50 percent or represents actual control, it
shall be treated as if it were a 100 percent interest. (For example, if A
owns 20 percent of B, and B owns 40 percent of licensee C, then A's interest
in licensee C would be 8 percent. If A owns 20 percent of B, and B owns 51
percent of licensee C, then A's interest in licensee C would be 20 percent
because B's ownership of C exceeds 50 percent.)
(H) Any person who manages the operations of a cellular licensee pursuant to
a management agreement shall be considered to have an attributable interest
in such licensee if such person, or its affiliate, has authority to make
decisions or otherwise engage in practices or activities that determine, or
significantly influence:
( 1 ) The nature or types of services offered by such licensee;
( 2 ) The terms upon which such services are offered; or
( 3 ) The prices charged for such services.
(I) Any licensee, or its affiliate, who enters into a joint marketing
arrangements with a cellular licensee, or its affiliate, shall be considered
to have an attributable interest, if such licensee or affiliate has
authority to make decisions or otherwise engage in practices or activities
that determine, or significantly influence:
( 1 ) The nature or types of services offered by such licensee;
( 2 ) The terms upon which such services are offered; or
( 3 ) The prices charged for such services.
(3) Sunset Provisions. This notification requirement will sunset at the
earlier of:
(i) Five years after February 14, 2005, or
(ii) At the cellular licensee's specific deadline for renewal.
(d) A single FCC Form 602 may be associated with multiple applications filed
by the same applicant or licensee. If an applicant or licensee already has a
current FCC Form 602 on file when it files an initial application, renewal
application, application for assignment or transfer of control, or
notification of a pro forma assignment or transfer, it may certify that it
has a current FCC Form 602 on file.
(e) No filing fee is required to submit or update FCC Form 602.
(f) Applicants or licensees in Wireless Radio Services that are not subject
to the ownership reporting requirements of §1.2112 are not required to file
FCC Form 602. However, such applicants and licensees may be required by the
rules applicable to such services to disclose the real party (or parties) in
interest to the application, including (as required) a complete disclosure
of the identity and relationship of those persons or entities directly or
indirectly owning or controlling (or both) the applicant or licensee.
[ 63 FR 68923 , Dec. 14, 1998, as amended at 68 FR 42995 , July 21, 2003; 69 FR 75170 , Dec. 15, 2004; 71 FR 26251 , May 4, 2006]
§ 1.923 Content of applications.
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(a) General. Applications must contain all information requested on the
applicable form and any additional information required by the rules in this
chapter and any rules pertaining to the specific service for which the
application is filed.
(b) Reference to material on file. Questions on application forms that call
for specific technical data, or that can be answered yes or no or with
another short answer, must be answered on the form. Otherwise, if documents,
exhibits, or other lengthy showings already on file with the FCC contain
information required in an application, the application may incorporate such
information by reference, provided that:
(1) The referenced information has been filed in ULS or, if manually filed
outside of ULS, the information comprises more than one “81/2×11” page.
(2) The referenced information is current and accurate in all material
respects; and
(3) The application states specifically where the referenced information can
actually be found, including:
(i) The station call sign or application file number and its location if the
reference is to station files or previously filed applications;
(ii) The title of the proceeding, the docket number, and any legal
citations, if the reference is to a docketed proceeding.
(c) Antenna locations. Applications for stations at fixed locations must
describe each transmitting antenna site by its geographical coordinates and
also by its street address, or by reference to a nearby landmark.
Geographical coordinates, referenced to NAD83, must be specified in degrees,
minutes, and seconds to the nearest second of latitude and longitude.
(d) Antenna structure registration. Owners of certain antenna structures
must notify the Federal Aviation Administration and register with the
Commission as required by Part 17 of this chapter. Applications proposing
the use of one or more new or existing antenna structures must contain the
FCC Antenna Registration Number(s) of each structure for which registration
is required. If registration is not required, the applicant must provide
information in its application sufficient for the Commission to verify this
fact.
(e) Environmental concerns. Each applicant is required to indicate at the
time its application is filed whether or not a Commission grant of the
application may have a significant environmental effect, as defined by
§1.1307 of this chapter. If answered affirmatively, an Environmental
Assessment, required by §1.1311 of this chapter, must be filed with the
application and environmental review by the Commission must be completed
prior to construction.
(f) International coordination. Channel assignments and/or usage under this
part are subject to the applicable provisions and requirements of treaties
and other international agreements between the United States government and
the governments of Canada and Mexico.
(g) Quiet zones. Each applicant is required to comply with the “Quiet
Zone” rule (see §1.924).
(h) Taxpayer Identification Number (TINs). Wireless applicants and
licensees, including all attributable owners of auctionable licenses as
defined by §1.2112 of this part, are required to provide their Taxpayer
Identification Numbers (TINS) (as defined in 26 U.S.C. 6109) to the
Commission, pursuant to the Debt Collection Improvement Act of 1996 (DCIA).
Under the DCIA, the FCC may use an applicant or licensee's TIN for purposes
of collecting and reporting to the Department of the Treasury any delinquent
amounts arising out of such person's relationship with the Government. The
Commission will not publicly disclose applicant or licensee TINs unless
authorized by law, but will assign a “public identification number” to each
applicant or licensee registering a TIN. This public identification number
will be used for agency purposes other than debt collection.
(i) Unless an exception is set forth elsewhere in this chapter, each
applicant must specify an address where the applicant can receive mail
delivery by the United States Postal Service. This address will be used by
the Commission to serve documents or direct correspondence to the applicant.
[ 63 FR 68924 , Dec. 14, 1998, as amended at 64 FR 53238 , Oct. 1, 1999]
§ 1.924 Quiet zones.
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Areas implicated by this paragraph are those in which it is necessary to
restrict radiation so as to minimize possible impact on the operations of
radio astronomy or other facilities that are highly sensitive to
interference. Consent throughout this paragraph means written consent from
the quiet zone, radio astronomy, research, and receiving installation
entity. The areas involved and procedures required are as follows:
(a) NRAO, NRRO. The requirements of this paragraph are intended to minimize
possible interference at the National Radio Astronomy Observatory site
located at Green Bank, Pocahontas County, West Virginia, and at the Naval
Radio Research Observatory site at Sugar Grove, Pendleton County, West
Virginia.
(1) Applicants and licensees planning to construct and operate a new or
modified station at a permanent fixed location within the area bounded by N
39°15'0.4" on the north, W 78°29'59.0" on the east, N 37°30'0.4" on the
south, and W 80°29'59.2" on the west must notify the Director, National
Radio Astronomy Observatory, Post Office Box No. 2, Green Bank, West
Virginia 24944, in writing, of the technical details of the proposed
operation. The notification must include the geographical coordinates of the
antenna location, the antenna height, antenna directivity (if any), the
channel, the emission type and power.
(2) When an application for authority to operate a station is filed with the
FCC, the notification required in paragraph (a)(1) of this section may be
made prior to, or simultaneously with the application. The application must
state the date that notification in accordance with paragraph (a)(1) of this
section was made. After receipt of such applications, the FCC will allow a
period of 20 days for comments or objections in response to the
notifications indicated. If an applicant submits written consent from the
National Radio Astronomy Observatory for itself or on behalf of the Naval
Radio Research Observatory, the FCC will process the application without
awaiting the conclusion of the 20-day period. For services that do not
require individual station authorization, entities that have obtained
written consent from the National Radio Astronomy Observatory for itself or
on behalf of the Naval Radio Research Observatory may begin to operate new
or modified facilities prior to the end of the 20-day period. In instances
in which notification has been made to the National Radio Astronomy
Observatory prior to application filing, the applicant must also provide
notice to the quiet zone entity upon actual filing of the application with
the FCC. Such notice will be made simultaneous with the filing of the
application and shall comply with the requirements of paragraph (a)(1) of
this section.
(3) If an objection is received during the 20-day period from the National
Radio Astronomy Observatory for itself or on behalf of the Naval Radio
Research Observatory, the FCC will, after consideration of the record, take
whatever action is deemed appropriate.
(b) Table Mountain. The requirements of this paragraph are intended to
minimize possible interference at the Table Mountain Radio Receiving Zone of
the Research Laboratories of the Department of Commerce located in Boulder
County, Colorado.
(1) Licensees and applicants planning to construct and operate a new or
modified station at a permanent fixed location in the vicinity of Boulder
County, Colorado are advised to give consideration, prior to filing
applications, to the need to protect the Table Mountain Radio Receiving Zone
from interference. To prevent degradation of the present ambient radio
signal level at the site, the Department of Commerce seeks to ensure that
the field strengths of any radiated signals (excluding reflected signals)
received on this 1800 acre site (in the vicinity of coordinates 40°07'49.9"
North Latitude, 105°14'42.0" West Longitude) resulting from new assignments
(other than mobile stations) or from the modification or relocation of
existing facilities do not exceed the values given in the following table:
Field Strength Limits for Table Mountain^1
Frequency range Field strength
(mV/m) Power flux density
(dBW/m^2)
Below 540 kHz 10 −65.8
540 to 1600 kHz 20 −59.8
1.6 to 470 MHz 10 −65.8
470 to 890 MHz 30 −56.2
890 MHz and above 1 −85.8
^1Note: Equivalent values of power flux density are calculated assuming free
space characteristic impedance of 376.7Ω (120πΩ).
(2) Advance consultation is recommended, particularly for applicants that
have no reliable data to indicate whether the field strength or power flux
density figures in the above table would be exceeded by their proposed radio
facilities. In general, coordination is recommended for:
(i) Stations located within 2.4 kilometers (1.5 miles) of the Table Mountain
Radio Receiving Zone;
(ii) Stations located within 4.8 kilometers (3 miles) transmitting with 50
watts or more effective radiated power (ERP) in the primary plane of
polarization in the azimuthal direction of the Table Mountain Radio
Receiving Zone;
(iii) Stations located with 16 kilometers (10 miles) transmitting with 1 kW
or more ERP in the primary plane of polarization in the azimuthal direction
of Table Mountain Radio Receiving Zone;
(iv) Stations located within 80 kilometers (50 miles) transmitting with 25
kW or more ERP in the primary plane of polarization in the azimuthal
direction of Table Mountain Receiving Zone.
(3) Applicants concerned are urged to communicate with the Radio Frequency
Management Coordinator, Department of Commerce, NOAA R/OM62, 325 Broadway,
Boulder, CO 80305; telephone 303–497–6548, in advance of filing their
applications with the Commission.
(4) The FCC will not screen applications to determine whether advance
consultation has taken place. However, such consultation may avoid the
filing of objections from the Department of Commerce or institution of
proceedings to modify the authorizations of stations that radiate signals
with a field strength or power flux density at the site in excess of those
specified herein.
(c) Federal Communications Commission protected field offices. The
requirements of this paragraph are intended to minimize possible
interference to FCC monitoring activities.
(1) Licensees and applicants planning to construct and operate a new or
modified station at a permanent fixed location in the vicinity of an FCC
protected field office are advised to give consideration, prior to filing
applications, to the need to avoid interfering with the monitoring
activities of that office. FCC protected field offices are listed in §0.121
of this chapter.
(2) Applications for stations (except mobile stations) that could produce on
any channel a direct wave fundamental field strength of greater than 10 mV/m
(−65.8 dBW/m^2 power flux density assuming a free space characteristic
impedance of 120π Ω) in the authorized bandwidth at the protected field
office may be examined to determine the potential for interference with
monitoring activities. After consideration of the effects of the predicted
field strength of the proposed station, including the cumulative effects of
the signal from the proposed station with other ambient radio field strength
levels at the protected field office, the FCC may add a condition
restricting radiation toward the protected field office to the station
authorization.
(3) In the event that the calculated field strength exceeds 10 mV/m at the
protected field office site, or if there is any question whether field
strength levels might exceed that level, advance consultation with the FCC
to discuss possible measures to avoid interference to monitoring activities
should be considered. Prospective applicants may communicate with: Chief,
Enforcement Bureau, Federal Communications Commission, Washington, DC 20554.
(4) Advance consultation is recommended for applicants that have no reliable
data to indicate whether the field strength or power flux density figure
indicated would be exceeded by their proposed radio facilities. In general,
coordination is recommended for:
(i) Stations located within 2.4 kilometers (1.5 miles) of the protected
field office;
(ii) Stations located within 4.8 kilometers (3 miles) with 50 watts or more
average effective radiated power (ERP) in the primary plane of polarization
in the azimuthal direction of the protected field offices.
(iii) Stations located within 16 kilometers (10 miles) with 1 kw or more
average ERP in the primary plane of polarization in the azimuthal direction
of the protected field office;
(iv) Stations located within 80 kilometers (50 miles) with 25 kw or more
average ERP in the primary plane of polarization in the azimuthal direction
of the protected field office;
(v) Advance coordination for stations transmitting on channels above 1000
MHz is recommended only if the proposed station is in the vicinity of a
protected field office designated as a satellite monitoring facility in
§0.121 of this chapter.
(vi) The FCC will not screen applications to determine whether advance
consultation has taken place. However, such consultation may serve to avoid
the need for later modification of the authorizations of stations that
interfere with monitoring activities at protected field offices.
(d) Notification to the Arecibo Observatory. The requirements in this
section are intended to minimize possible interference at the Arecibo
Observatory in Puerto Rico. Licensees must make reasonable efforts to
protect the Observatory from interference. Licensees planning to construct
and operate a new station at a permanent fixed location on the islands of
Puerto Rico, Desecheo, Mona, Vieques or Culebra in services in which
individual station licenses are issued by the FCC; planning to construct and
operate a new station at a permanent fixed location on these islands that
may cause interference to the operations of the Arecibo Observatory in
services in which individual station licenses are not issued by the FCC; or
planning a modification of any existing station at a permanent fixed
location on these islands that would increase the likelihood of causing
interference to the operations of the Arecibo Observatory must notify the
Interference Office, Arecibo Observatory, HC3 Box 53995, Arecibo, Puerto
Rico 00612, in writing or electronically (e-mail address: prcz@naic.edu ),
of the technical parameters of the planned operation. Carriers may wish to
use the interference guidelines provided by Cornell University as guidance
in designing facilities to avoid interference to the Observatory. The
notification must include identification of the geographical coordinates of
the antenna location (NAD–83 datum), the antenna height, antenna directivity
(if any), proposed channel and FCC Rule Part, type of emission, and
effective isotropic radiated power.
(1) In the Amateur radio service:
(i) The provisions of paragraph (d) of this section do not apply to
repeaters that transmit on the 1.2 cm or shorter wavelength bands; and
(ii) The coordination provision of paragraph (d) of this section does not
apply to repeaters that are located 16 km or more from the Arecibo
observatory.
(2) In services in which individual station licenses are issued by the FCC,
the notification required in paragraph (d) of this section may be made prior
to, or simultaneously with, the filing of the application with the FCC, and
at least 20 days in advance of the applicant's planned operation. The
application must state the date that notification in accordance with
paragraph (d) of this section was made. In services in which individual
station licenses are not issued by the FCC, the notification required in
paragraph (d) of this section should be sent at least 45 days in advance of
the applicant's planned operation. In the latter services, the Interference
Office must inform the FCC of a notification by an applicant within 20 days
if the Office plans to file comments or objections to the notification.
After the FCC receives an application from a service applicant or is
informed by the Interference Office of a notification from a service
applicant, the FCC will allow the Interference Office a period of 20 days
for comments or objections in response to the application or notification.
If an applicant submits written consent from the Interference Office, the
FCC will process the application without awaiting the conclusion of the
20-day period. For services that do not require individual station
authorization, entities that have obtained written consent from the
Interference Office may begin to operate new or modified facilities prior to
the end of the 20-day period. In instances in which notification has been
made to the Interference Office prior to application filing, the applicant
must also provide notice to the Interference Office upon actual filing of
the application with the FCC. Such notice will be made simultaneous with the
filing of the application and shall comply with the requirements of
paragraph (d) of this section.
(3) If an objection to any planned service operation is received during the
20-day period from the Interference Office, the FCC will take whatever
action is deemed appropriate.
(4) The provisions of paragraph (d) of this section do not apply to
operations that transmit on frequencies above 15 GHz.
(e) Government satellite earth stations. (1) To minimize or avoid harmful
interference to Government Satellite Earth Stations located in the Denver,
Colorado and Washington, DC areas, any application for a new station license
to operate in the 17.8–19.7 GHz band (except for low power operations
governed by §101.147(r)(10) of this chapter), or for modification of an
existing station license in this band which would change the frequency,
power, emission, modulation, polarization, antenna height or directivity, or
location of such a station, must be coordinated with the Federal Government
by the Commission before an authorization will be issued, if the station or
proposed station is located in whole or in part within any of the areas
defined by the following rectangles or circles:
Denver, CO Area
Rectangle 1:
41°30'00" N. Lat. on the north
103°10'00" W. Long. on the east
38°30'00" N. Lat. on the south
106°30'00" W. Long. on the west
Rectangle 2:
38°30'00" N. Lat. on the north
105°00'00" W. Long. on the east
37°30'00" N. Lat. on the south
105°50'00" W. Long. on the west
Rectangle 3:
40°08'00" N. Lat. on the north
107°00'00" W. Long. on the east
39°56'00" N. Lat. on the south
07°15'00" W. Long. on the west
Washington, DC Area
Rectangle
38°40'00" N. Lat. on the north
78°50'00" W. Long. on the east
38°10'00" N. Lat. on the south
79°20'00" W. Long. on the west; or
(2) Within a radius of 178 km of 38°48'00" N. Lat./76°52'00" W. Long.
(3) In addition, no application seeking authority to operate in the
17.8–19.7 GHz band will be accepted for filing if the proposed station is
located within 20 km (or within 55 km if the application is for an outdoor
low power operation pursuant to §101.147(r)(10) of this chapter) of the
following coordinated:
Denver, CO area: 39°43'00" N. Lat./104°46'00" W. Long.
Washington, DC area: 38°48'00" N. Lat./76°52'00" W. Long.
(4) In the band 17.7–17.8 GHz, fixed service applications, under parts 74,
78, or 101 of this chapter, supporting Multichannel Video Programming
Distributors shall be coordinated with the Federal Government by the
Commission before an authorization will be issued if the station or proposed
station is located in whole or in part within any of the areas defined in
paragraphs (e)(1) or (e)(2) of this section.
(f) 420–450 MHz band. (1) In the band 420–450 MHz, applicants should not
expect to be accommodated if their area of service is within 160 kilometers
(100 miles) of the following locations:
(i) 41°45'00.2" N, 70°30'58.3" W.,
(ii) 64°17'00.0" N., 149°10'00.0" W.,
Note to: Paragraph(f)(ii) is referenced to NAD27.
(iii) 48°43'00.0" N., 97°54'01.4" W.;
(2) Within 200 kilometers (124 miles) of the following locations:
(i) 32°38'00.5" N., 83°34'59.7" W.,
(ii) 31°25'00.6" N., 100°24'01.3" W.;
(3) Within 240 kilometers (150 miles) of the following location:
(i) 39°07'59.6" N., 121°26'03.9" W.;
(ii) [Reserved]
(4) Within 320 kilometers (200 miles) of the following locations:
(i) 28°21'01.0" N., 80°42'59.2" W.,
(ii) 30°30'00.7" N., 86°29'59.8" W.,
(iii) 34°08'59.6" N, 119°11'03.8" W;
(5) Or in the following locations:
(i) The state of Arizona,
(ii) The state of Florida,
(iii) Portions of California and Nevada south of 37°10' N.,
(iv) And portions of Texas and New Mexico bounded by 31°45' N., 34°30' N.,
104°00' W., and 107°30' W.
(g) GOES. The requirements of this paragraph are intended to minimize
harmful interference to Geostationary Operational Environmental Satellite
earth stations receiving in the band 1670–1675 MHz, which are located at
Wallops Island, Virginia; Fairbanks, Alaska; and Greenbelt, Maryland.
(1) Applicants and licensees planning to construct and operate a new or
modified station within the area bounded by a circle with a radius of 100
kilometers (62.1 miles) that is centered on 37E56'47" N, 75E27'37" W
(Wallops Island) or 64E58'36" N, 147E31'03" W (Fairbanks) or within the area
bounded by a circle with a radius of 65 kilometers (40.4 miles) that is
centered on 39E00'02" N, 76E50'31" W (Greenbelt) must notify the National
Oceanic and Atmospheric Administration (NOAA) of the proposed operation. For
this purpose, NOAA maintains the GOES coordination web page at
http://www.osd.noaa.gov/radio/frequency.htm, which provides the technical
parameters of the earth stations and the point-of-contact for the
notification. The notification shall include the following information:
requested frequency, geographical coordinates of the antenna location,
antenna height above mean sea level, antenna directivity, emission type,
equivalent isotropically radiated power, antenna make and model, and
transmitter make and model.
(2) Protection. (i) Wallops Island and Fairbanks. Licensees are required to
protect the Wallops Island and Fairbanks sites at all times.
(ii) Greenbelt. Licensees are required to protect the Greenbelt site only
when it is active. Licensees should coordinate appropriate procedures
directly with NOAA for receiving notification of times when this site is
active.
(3) When an application for authority to operate a station is filed with the
FCC, the notification required in paragraph (f)(1) of this section should be
sent at the same time. The application must state the date that notification
in accordance with paragraph (f)(1) of this section was made. After receipt
of such an application, the FCC will allow a period of 20 days for comments
or objections in response to the notification.
(4) If an objection is received during the 20-day period from NOAA, the FCC
will, after consideration of the record, take whatever action is deemed
appropriate.
Note to §1.924: Unless otherwise noted, all coordinates cited in this
section are specified in terms of the North American Datum of 1983 (NAD 83).
[ 63 FR 68924 , Dec. 14, 1998, as amended at 67 FR 6182 , Feb. 11, 2002; 67 FR 13224 , Mar. 21, 2002; 67 FR 41852 , June 20, 2002; 67 FR 71111 , Nov. 29,
2002; 69 FR 17957 , Apr. 6, 2004; 70 FR 31372 , June 1, 2005; 71 FR 69046 ,
Nov. 29, 2006]
§ 1.925 Waivers.
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(a) Waiver requests generally. The Commission may waive specific
requirements of the rules on its own motion or upon request. The fees for
such waiver requests are set forth in §1.1102 of this part.
(b) Procedure and format for filing waiver requests. (1) Requests for waiver
of rules associated with licenses or applications in the Wireless Radio
Services must be filed on FCC Form 601, 603, or 605.
(2) Requests for waiver must contain a complete explanation as to why the
waiver is desired. If the information necessary to support a waiver request
is already on file, the applicant may cross-reference the specific filing
where the information may be found.
(3) The Commission may grant a request for waiver if it is shown that:
(i) The underlying purpose of the rule(s) would not be served or would be
frustrated by application to the instant case, and that a grant of the
requested waiver would be in the public interest; or
(ii) In view of unique or unusual factual circumstances of the instant case,
application of the rule(s) would be inequitable, unduly burdensome or
contrary to the public interest, or the applicant has no reasonable
alternative.
(4) Applicants requiring expedited processing of their request for waiver
shall clearly caption their request for waiver with the words
“WAIVER—EXPEDITED ACTION REQUESTED.”
(c) Action on Waiver Requests. (i) The Commission, in its discretion, may
give public notice of the filing of a waiver request and seek comment from
the public or affected parties.
(ii) Denial of a rule waiver request associated with an application renders
that application defective unless it contains an alternative proposal that
fully complies with the rules, in which event, the application will be
processed using the alternative proposal as if the waiver had not been
requested. Applications rendered defective may be dismissed without
prejudice.
[ 63 FR 68926 , Dec. 14, 1998]
§ 1.926 Application processing; initial procedures.
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Applications are assigned file numbers and service codes in order to
facilitate processing. Assignment of a file number to an application is for
administrative convenience and does not constitute a determination that the
application is acceptable for filing. Purpose and service codes appear on
the Commission forms.
[ 63 FR 68927 , Dec. 14, 1998]
§ 1.927 Amendment of applications.
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(a) Pending applications may be amended as a matter of right if they have
not been designated for hearing or listed in a public notice as accepted for
filing for competitive bidding, except as provided in paragraphs (b) through
(e) of this section.
(b) Applicants for an initial license in auctionable services may amend such
applications only in accordance with Subpart Q of this part.
(c) Amendments to non-auction applications that are applied for under Part
101 or that resolve mutual exclusivity may be filed at any time, subject to
the requirements of §1.945 of this part.
(d) Any amendment to an application for modification must be consistent
with, and must not conflict with, any other application for modification
regarding that same station.
(e) Amendments to applications designated for hearing may be allowed by the
presiding officer or, when a proceeding is stayed or otherwise pending
before the full Commission, may be allowed by the Commission for good cause
shown. In such instances, a written petition demonstrating good cause must
be submitted and served upon the parties of record.
(f) Amendments to applications are also subject to the service-specific
rules in applicable parts of this chapter.
(g) Where an amendment to an application specifies a substantial change in
beneficial ownership or control ( de jure or de facto ) of an applicant, the
applicant must provide an exhibit with the amendment application containing
an affirmative, factual showing as set forth in §1.948(i)(2).
(h) Where an amendment to an application constitutes a major change, as
defined in §1.929, the amendment shall be treated as a new application for
determination of filing date, public notice, and petition to deny purposes.
(i) If a petition to deny or other informal objection has been filed, a copy
of any amendment (or other filing) must be served on the petitioner. If the
FCC has issued a public notice stating that the application appears to be
mutually exclusive with another application (or applications), a copy of any
amendment (or other filing) must be served on any such mutually exclusive
applicant (or applicants).
[ 63 FR 68927 , Dec. 14, 1998, as amended at 64 FR 53238 , Oct. 1, 1999; 70 FR 61058 , Oct. 20, 2005]
§ 1.928 Frequency coordination, Canada.
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(a) As a result of mutual agreements, the Commission has, since May 1950 had
an arrangement with the Canadian Department of Communications for the
exchange of frequency assignment information and engineering comments on
proposed assignments along the Canada-United States borders in certain bands
above 30 MHz. Except as provided in paragraph (b) of this section, this
arrangement involves assignments in the following frequency bands.
MHz
30.56–32.00
33.00–34.00
35.00–36.00
37.00–38.00
39.00–40.00
42.00–46.00
47.00–49.60
72.00–73.00
75.40–76.00
150.80–174.00
450–470
806.00–960.00
1850.0–2200.0
2450.0–2690.0
3700.0–4200.0
5925.0–7125.0
GHz
10.55–10.68
10.70–13.25
(b) The following frequencies are not involved in this arrangement because
of the nature of the services:
MHz
156.3
156.35
156.4
156.45
156.5
156.55
156.6
156.65
156.7
156.8
156.9
156.95
157.0 and 161.6
157.05
157.1
157.15
157.20
157.25
157.30
157.35
157.40.
(c) Assignments proposed in accordance with the railroad industry radio
frequency allotment plan along the United States-Canada borders utilized by
the Federal Communications Commission and the Department of Transport,
respectively, may be excepted from this arrangement at the discretion of the
referring agency.
(d) Assignments proposed in any radio service in frequency bands below 470
MHz appropriate to this arrangement, other than those for stations in the
Domestic Public (land mobile or fixed) category, may be excepted from this
arrangement at the discretion of the referring agency if a base station
assignment has been made previously under the terms of this arrangement or
prior to its adoption in the same radio service and on the same frequency
and in the local area, and provided the basic characteristics of the
additional station are sufficiently similar technically to the original
assignment to preclude harmful interference to existing stations across the
border.
(e) For bands below 470 MHz, the areas which are involved lie between Lines
A and B and between Lines C and D, which are described as follows:
Line A—Begins at Aberdeen, Wash., running by great circle arc to the
intersection of 48 deg. N., 120 deg. W., thence along parallel 48 deg. N.,
to the intersection of 95 deg. W., thence by great circle arc through the
southernmost point of Duluth, Minn., thence by great circle arc to 45 deg.
N., 85 deg. W., thence southward along meridian 85 deg. W., to its
intersection with parallel 41 deg. N., thence along parallel 41 deg. N., to
its intersection with meridian 82 deg. W., thence by great circle arc
through the southernmost point of Bangor, Maine, thence by great circle arc
through the southern-most point of Searsport, Maine, at which point it
terminates; and
Line B—Begins at Tofino, B.C., running by great circle arc to the
intersection of 50 deg. N., 125 deg. W., thence along parallel 50 deg. N.,
to the intersection of 90 deg. W., thence by great circle arc to the
intersection of 45 deg. N., 79 deg. 30' W., thence by great circle arc
through the northernmost point of Drummondville, Quebec (lat: 45 deg. 52'
N., long: 72 deg. 30' W.), thence by great circle arc to 48 deg. 30' N., 70
deg. W., thence by great circle arc through the northernmost point of
Campbellton, N.B., thence by great circle arc through the northernmost point
of Liverpool, N.S., at which point it terminates.
Line C—Begins at the intersection of 70 deg. N., 144 deg. W., thence by
great circle arc to the intersection of 60 deg. N., 143 deg. W., thence by
great circle arc so as to include all of the Alaskan Panhandle; and
Line D—Begins at the intersection of 70 deg. N., 138 deg. W., thence by
great circle arc to the intersection of 61 deg. 20' N., 139 deg. W.,
(Burwash Landing), thence by great circle arc to the intersection of 60 deg.
45' N., 135 deg. W., thence by great circle arc to the intersection of 56
deg. N., 128 deg. W., thence south along 128 deg. meridian to Lat. 55 deg.
N., thence by great circle arc to the intersection of 54 deg. N., 130 deg.
W., thence by great circle arc to Port Clements, thence to the Pacific Ocean
where it ends.
(f) For all stations using bands between 470 MHz and 1000 MHz; and for any
station of a terrestrial service using a band above 1000 MHz, the areas
which are involved are as follows:
(1) For a station the antenna of which looks within the 200 deg. sector
toward the Canada-United States borders, that area in each country within 35
miles of the borders;
(2) For a station the antenna of which looks within the 160 deg. sector away
from the Canada-United States borders, that area in each country within 5
miles of the borders; and
(3) The area in either country within coordination distance as described in
Recommendation 1A of the Final Acts of the EARC, Geneva, 1963 of a receiving
earth station in the other country which uses the same band.
(g) Proposed assignments in the space radiocommunication services and
proposed assignments to stations in frequency bands allocated coequally to
space and terrestrial services above 1 GHz are not treated by these
arrangements. Such proposed assignments are subject to the regulatory
provisions of the International Radio Regulations.
(h) Assignments proposed in the frequency band 806–890 MHz shall be in
accordance with the Canada-United States agreement, dated April 7, 1982.
[ 64 FR 53238 , Oct. 1, 1999]
§ 1.929 Classification of filings as major or minor.
top
Applications and amendments to applications for stations in the wireless
radio services are classified as major or minor ( see §1.947). Categories of
major and minor filings are listed in §309 of the Communications Act of
1934.
(a) For all stations in all Wireless Radio Services, whether licensed
geographically or on a site-specific basis, the following actions are
classified as major:
(1) Application for initial authorization;
(2) Any substantial change in ownership or control, including requests for
partitioning and disaggregation;
(3) Application for renewal of authorization;
(4) Application or amendment requesting authorization for a facility that
would have a significant environmental effect, as defined by §§1.1301
through 1.1319 of the rules;
(5) Application or amendment requiring frequency coordination pursuant to
the Commission's rules or international treaty or agreement;
(6) Application or amendment requesting to add a frequency or frequency
block for which the applicant is not currently authorized, excluding
removing a frequency.
(b) In the Cellular Radiotelephone Service:
(1) Request an authorization or an amendment to a pending application that
would expand the cellular geographic service area (COSA) of an existing
cellular system or, in the case of an amendment, as previously proposed in
an application, except during the applicable five-year build-out period, if
any;
(2) Request that a CGSA boundary or portion of a CGSA boundary be determined
using an alternative method; or,
(3) Request an authorization for facilities that would produce a de minimis
service area boundary extension into unserved area in an adjacent market.
(c) In addition to those changes listed in paragraph (a) in this section,
the following are major changes applicable to stations licensed to provide
base-to-mobile, mobile-to-base, mobile-to-mobile on a site-specific basis:
(1) In the Paging and Radiotelephone Service, Rural Radiotelephone Service
and 800 MHz Specialized Mobile Radio Service (SMR), any change that would
increase or expand the applicant's existing composite interference contour.
(2) In the 900 MHz SMR and 220 MHz Service, any change that would increase
or expand the applicant's service area as defined in the rule parts
governing the particular radio service.
(3) In the Paging and Radiotelephone Service, Rural Radiotelephone Service,
Offshore Radiotelephone Service, and Specialized Mobile Radio Service:
(i) Request an authorization or an amendment to a pending application that
would establish for the filer a new fixed transmission path;
(ii) Request an authorization or an amendment to a pending application for a
fixed station (i.e., control, repeater, central office, rural subscriber, or
inter-office station) that would increase the effective radiated power,
antenna height above average terrain in any azimuth, or relocate an existing
transmitter;
(4) In the Private Land Mobile Radio Services (PLMRS), the remote pickup
broadcast auxiliary service, and GMRS systems licensed to non-individuals;
(i) Change in frequency or modification of channel pairs, except the
deletion of one or more frequencies from an authorization;
(ii) Change in the type of emission;
(iii) Change in effective radiated power from that authorized or, for GMRS
systems licensed to non-individuals, an increase in the transmitter power of
a station;
(iv) Change in antenna height from that authorized;
(v) Change in the authorized location or number of base stations, fixed,
control, except for deletions of one or more such stations or, for systems
operating on non-exclusive assignments in GMRS or the 470–512 MHz, 800 MHz
or 900 MHz bands, a change in the number of mobile transmitters, or a change
in the area of mobile transmitters, or a change in the area of mobile
operations from that authorized;
(vi) Change in the class of a land station, including changing from multiple
licensed to cooperative use, and from shared to unshared use.
(d) In the microwave, aural broadcast auxiliary, and television broadcast
auxiliary services:
(1) Except as specified in paragraph (d)(2) and (d)(3) of this section, the
following, in addition to those filings listed in paragraph (a) of this
section, are major actions that apply to stations licensed to provide fixed
point-to-point, point-to-multipoint, or multipoint-to-point, communications
on a site-specific basis, or fixed or mobile communications on an
area-specific basis under part 101 of this chapter:
(i) Any change in transmit antenna location by more than 5 seconds in
latitude or longitude for fixed point-to-point facilities ( e.g., a 5 second
change in latitude, longitude, or both would be minor); any change in
coordinates of the center of operation or increase in radius of a circular
area of operation, or any expansion in any direction in the latitude or
longitude limits of a rectangular area of operation, or any change in any
other kind of area operation;
(ii) Any increase in frequency tolerance;
(iii) Any increase in bandwidth;
(iv) Any change in emission type;
(v) Any increase in EIRP greater than 3 dB;
(vi) Any increase in transmit antenna height (above mean sea level) more
than 3 meters, except as specified in paragraph (d)(3) of this section;
(vii) Any increase in transmit antenna beamwidth, except as specified in
paragraph (d)(3) of this section;
(viii) Any change in transmit antenna polarization;
(ix) Any change in transmit antenna azimuth greater than 1 degree, except as
specified in paragraph (d)(3) of this section ; or,
(x) Any change which together with all minor modifications or amendments
since the last major modification or amendment produces a cumulative effect
exceeding any of the above major criteria.
(2) Changes to transmit antenna location of Multiple Address System (MAS)
Remote Units and Digital Electronic Message Service (DEMS) User Units are
not major.
(3) Changes in accordance with paragraphs (d)(1)(vi), (d)(1)(vii) and
(d)(1)(ix) of this section are not major for the following:
(i) Fixed Two-Way MAS on the remote to master path,
(ii) Fixed One-Way Inbound MAS on the remote to master path,
(iii) Multiple Two-Way MAS on the remote to master and master to remote
paths,
(iv) Multiple One-Way Outbound MAS on the master to remote path,
(v) Mobile MAS Master,
(vi) Fixed Two-Way DEMS on the user to nodal path, and
(vii) Multiple Two-Way DEMS on the nodal to user and user to nodal paths.
Note to paragraph(d)(3)of §1.929: For the systems and path types described
in paragraph (d)(3) of this section, the data provided by applicants is
either a typical value for a certain parameter or a fixed value given in the
Form instructions.
(e) In addition to those filings listed in paragraph (a) of this section,
the following are major actions that apply to stations licensed to provide
service in the Air-ground Radiotelephone Service:
(1) Request an authorization to relocate an existing General Aviation ground
station; or,
(2) Request the first authorization for a new Commercial Aviation ground
station at a location other than those listed in §22.859 of this chapter.
(f) In addition to those changes listed in paragraph (a), the following are
major changes that apply to stations licensed in the industrial
radiopositioning stations for which frequencies are assigned on an exclusive
basis, Maritime and Aviation services, except Maritime Public Coast VHF
(CMRS), Ship and Aircraft stations:
(1) Any change in antenna azimuth;
(2) Any change in beamwidth;
(3) Any change in antenna location;
(4) Any change in emission type;
(5) Any increase in antenna height;
(6) Any increase in authorized power;
(7) Any increase in emission bandwidth.
(g) In addition to those changes listed in paragraph (a), any change
requiring international coordination in the Maritime Public Coast VHF (CMRS)
Service is major.
(h) In addition to those changes listed in paragraph (a) of this section,
the following are major changes that apply to ship stations:
(1) Any request for additional equipment;
(2) A change in ship category;
(3) A request for assignment of a Maritime Mobile Service Identity (MMSI)
number; or
(4) A request to increase the number of ships on an existing fleet license.
(i) In addition to those changes listed in paragraph (a) of this section,
the following are major changes that apply to aircraft stations:
(1) A request to increase the number of aircraft on an existing fleet
license; or
(2) A request to change the type of aircraft (private or air carrier).
(j) In addition to those changes listed in paragraph (a) of this section,
the following are major changes that apply to amateur licenses:
(1) An upgrade of an existing license; or
(2) A change of call sign.
(k) Any change not specifically listed above as major is considered minor (
see §1.947(b). This includes but is not limited to:
(1) Any pro forma assignment or transfer of control;
(2) Any name change not involving change in ownership or control of the
license;
(3) Any address and/or telephone number changes;
(4) Any changes in contact person;
(5) Any change to vessel name on a ship station license;
(6) Any change to a site-specific license, except a PLMRS license under part
90, or a license under part 101, where the licensee's interference contours
are not extended and co-channel separation criteria are met, except those
modifications defined in paragraph (c)(2) of this section; or
(7) Any conversion of multiple site-specific licenses into a single
wide-area license, except a PLMRS license under part 90 or a license under
part 101 of this chapter, where there is no change in the licensee's
composite interference contour or service area as defined in paragraph
(c)(2) of this section.
[ 63 FR 68927 , Dec. 14, 1998, as amended at 64 FR 53239 , Oct. 1, 1999; 68 FR 12755 , Mar. 17, 2003; 70 FR 19306 , Apr. 13, 2005; 70 FR 61058 , Oct. 20,
2005]
§ 1.931 Application for special temporary authority.
top
(a) Wireless Telecommunications Services. (1) In circumstances requiring
immediate or temporary use of station in the Wireless Telecommunications
Services, carriers may request special temporary authority (STA) to operate
new or modified equipment. Such requests must be filed electronically using
FCC Form 601 and must contain complete details about the proposed operation
and the circumstances that fully justify and necessitate the grant of STA.
Such requests should be filed in time to be received by the Commission at
least 10 days prior to the date of proposed operation or, where an extension
is sought, 10 days prior to the expiration date of the existing STA.
Requests received less than 10 days prior to the desired date of operation
may be given expedited consideration only if compelling reasons are given
for the delay in submitting the request. Otherwise, such late-filed requests
are considered in turn, but action might not be taken prior to the desired
date of operation. Requests for STA must be accompanied by the proper filing
fee.
(2) Grant without Public Notice. STA may be granted without being listed in
a Public Notice, or prior to 30 days after such listing, if:
(i) The STA is to be valid for 30 days or less and the applicant does not
plan to file an application for regular authorization of the subject
operation;
(ii) The STA is to be valid for 60 days or less, pending the filing of an
application for regular authorization of the subject operation;
(iii) The STA is to allow interim operation to facilitate completion of
authorized construction or to provide substantially the same service as
previously authorized; or
(iv) The STA is made upon a finding that there are extraordinary
circumstances requiring operation in the public interest and that delay in
the institution of such service would seriously prejudice the public
interest.
(3) Limit on STA term. The Commission may grant STA for a period not to
exceed 180 days under the provisions of section 309(f) of the Communications
Act of 1934, as amended, (47 U.S.C. 309(f)) if extraordinary circumstances
so require, and pending the filing of an application for regular operation.
The Commission may grant extensions of STA for a period of 180 days, but the
applicant must show that extraordinary circumstances warrant such an
extension.
(b) Private Wireless Services. (1) A licensee of, or an applicant for, a
station in the Private Wireless Services may request STA not to exceed 180
days for (A) operation of a new station or (B) operation of a licensed
station in a manner which is beyond the scope of that authorized by the
existing license. See §§1.962(b)(5) and (f). Where the applicant, seeking a
waiver of the 180 day limit, requests STA to operate as a private mobile
radio service provider for a period exceeding 180 days, evidence of
frequency coordination is required. Requests for shorter periods do not
require coordination and, if granted, will be authorized on a secondary,
non-interference basis.
(2) STA may be granted in the following circumstances:
(i) In emergency situations;
(ii) To permit restoration or relocation of existing facilities to continue
communication service;
(iii) To conduct tests to determine necessary data for the preparation of an
application for regular authorization;
(iv) For a temporary, non-recurring service where a regular authorization is
not appropriate;
(v) In other situations involving circumstances which are of such
extraordinary nature that delay in the institution of temporary operation
would seriously prejudice the public interest.
(3) The nature of the circumstance which, in the opinion of the applicant
justifies issuance of STA, must be fully described in the request.
Applications for STA must be filed at least 10 days prior to the proposed
operation. Applications filed less than 10 days prior to the proposed
operation date will be accepted only upon a showing of good cause.
(4) The Commission may grant extensions of STA for a period of 180 days, but
the applicant must show that extraordinary circumstances warrant such an
extension.
(5) In special situations defined in §1.915(b)(1), a request for STA may be
made by telephone or telegraph provided a properly signed application is
filed within 10 days of such request.
(6) An applicant for an Aircraft Radio Station License may operate the radio
station pending issuance of an Aircraft Radio Station License by the
Commission for a period of 90 days under temporary operating authority,
evidenced by a properly executed certification made on FCC Form 605.
(7) Unless the Commission otherwise prescribes, a person who has been
granted an operator license of Novice, Technician, Technician Plus, General,
or Advanced class and who has properly submitted to the administering VEs an
application document for an operator license of a higher class, and who
holds a CSCE indicating that he/she has completed the necessary examinations
within the previous 365 days, is authorized to exercise the rights and
privileges of the higher operator class until final disposition of the
application or until 365 days following the passing of the examination,
whichever comes first.
(8) An applicant for a Ship Radio station license may operate the radio
station pending issuance of the ship station authorization by the Commission
for a period of 90 days, under a temporary operating authority, evidenced by
a properly executed certification made on FCC Form 605.
(9) An applicant for a station license in the Industrial/Business pool
(other than an applicant who seeks to provide commercial mobile radio
service as defined in Part 20 of this chapter) utilizing an already
authorized facility may operate the station for a period of 180 days, under
a temporary permit, evidenced by a properly executed certification made on
FCC Form 601, after filing an application for a station license together
with evidence of frequency coordination, if required, with the Commission.
The temporary operation of stations, other than mobile stations, within the
Canadian coordination zone will be limited to stations with a maximum of 5
watts effective radiated power and a maximum antenna height of 20 feet (6.1
meters) above average terrain.
(10) An applicant for a radio station license under Part 90, Subpart S, of
this chapter (other than an applicant who seeks to provide commercial mobile
radio service as defined in part 20 of this chapter) to utilize an already
existing Specialized Mobile Radio System (SMR) facility or to utilize an
already licensed transmitter may operate the radio station for a period of
up to 180 days, under a temporary permit. Such request must be evidenced by
a properly executed certification of FCC Form 601 after the filing of an
application for station license, provided that the antenna employed by the
control station is a maximum of 20 feet (6.1 meters) above a man-made
structure (other than an antenna tower) to which it is affixed.
(11) An applicant for an itinerant station license, an applicant for a new
private land mobile radio station license in the frequency bands below 470
MHz and in the one-way paging 929–930 MHz band (other than a commercial
mobile radio service applicant or licensee on these bands) or an applicant
seeking to modify or acquire through assignment or transfer an existing
station below 470 MHz or in the one-way paging 929–930 MHz band may operate
the proposed station during the pendency of its application for a period of
up to 180 days under a conditional permit. Conditional operations may
commence upon the filing of a properly completed application that complies
with §90.127 if the application, when frequency coordination is required, is
accompanied by evidence of frequency coordination in accordance with §90.175
of this chapter. Operation under such a permit is evidenced by the properly
executed Form 601 with certifications that satisfy the requirements of
§90.159(b).
(12) An applicant for a General Mobile Radio Service system license, sharing
a multiple-licensed or cooperative shared base station used as a mobile
relay station, may operate the system for a period of 180 days, under a
Temporary Permit, evidenced by a properly executed certification made on FCC
Form 605.
[ 63 FR 68928 , Dec. 14, 1998]
§ 1.933 Public notices.
top
(a) Generally. Periodically, the Commission issues Public Notices in the
Wireless Radio Services listing information of public significance.
Categories of Public Notice listings are as follows:
(1) Accepted for filing. Acceptance for filing of applications and major
amendments thereto.
(2) Actions. Commission actions on pending applications previously listed as
accepted for filing.
(3) Environmental considerations. Special environmental considerations as
required by Part 1 of this chapter.
(4) Informative listings. Information that the Commission, in its
discretion, believes to be of public significance. Such listings do not
create any rights to file petitions to deny or other pleadings.
(b) Accepted for filing public notices. The Commission will issue at regular
intervals public notices listing applications that have been received by the
Commission in a condition acceptable for filing, or which have been returned
to an applicant for correction. Any application that has been listed in a
public notice as acceptable for filing and is (1) subject to a major
amendment, or (2) has been returned as defective or incomplete and
resubmitted to the Commission, shall be listed in a subsequent public
notice. Acceptance for filing shall not preclude the subsequent dismissal of
an application as defective.
(c) Public notice prior to grant. Applications for authorizations, major
modifications, major amendments to applications, and substantial assignment
or transfer applications for the following categories of stations and
services shall be placed on Public Notice as accepted for filing prior to
grant:
(1) Wireless Telecommunications Services.
(2) Industrial radiopositioning stations for which frequencies are assigned
on an exclusive basis.
(3) Aeronautical enroute stations.
(4) Aeronautical advisory stations.
(5) Airport control tower stations.
(6) Aeronautical fixed stations.
(7) Alaska public fixed stations.
(8) Broadband Radio Service; and
(9) Educational Broadband Service.
(d) No public notice prior to grant. The following types of applications,
notices, and other filings need not be placed on Public Notice as accepted
for filing prior to grant:
(1) Applications or notifications concerning minor modifications to
authorizations or minor amendments to applications.
(2) Applications or notifications concerning non-substantial ( pro forma )
assignments and transfers.
(3) Consent to an involuntary assignment or transfer under section 310(b) of
the Communications Act.
(4) Applications for licenses under section 319(c) of the Communications
Act.
(5) Requests for extensions of time to complete construction of authorized
facilities.
(6) Requests for special temporary authorization not to exceed 30 days where
the applicant does not contemplate the filing of an application for regular
operation, or not to exceed 60 days pending or after the filing of an
application for regular operation.
(7) Requests for emergency authorizations under section 308(a) of the
Communications Act.
(8) Any application for temporary authorization under section 101.31(a) of
this chapter.
(9) Any application for authorization in the Private Wireless Services.
[ 63 FR 68929 , Dec. 14, 1998, as amended at 69 FR 72026 , Dec. 10, 2004]
§ 1.934 Defective applications and dismissal.
top
(a) Dismissal of applications. The Commission may dismiss any application in
the Wireless Radio Services at the request of the applicant; if the
application is mutually exclusive with another application that is selected
or granted in accordance with the rules in this part; for failure to
prosecute or if the application is found to be defective; if the requested
spectrum is not available; or if the application is untimely filed. Such
dismissal may be “without prejudice,” meaning that the Commission may accept
from the applicant another application for the same purpose at a later time,
provided that the application is otherwise timely. Dismissal “with
prejudice” means that the Commission will not accept another application
from the applicant for the same purpose for a period of one year. Unless
otherwise provided in this part, a dismissed application will not be
returned to the applicant.
(1) Dismissal at request of applicant. Any applicant may request that its
application be withdrawn or dismissed. A request for the withdrawal of an
application after it has been listed on Public Notice as tentatively
accepted for filing is considered to be a request for dismissal of that
application without prejudice.
(i) If the applicant requests dismissal of its application with prejudice,
the Commission will dismiss that application with prejudice.
(ii) If the applicant requests dismissal of its application without
prejudice, the Commission will dismiss that application without prejudice,
unless:
(A) It has been designated for comparative hearing; or
(B) It is an application for which the applicant submitted the winning bid
in a competitive bidding process.
(2) If an applicant who is a winning bidder for a license in a competitive
bidding process requests dismissal of its short-form or long-form
application, the Commission will dismiss that application with prejudice.
The applicant will also be subject to default payments under Subpart Q of
this part.
(3) An applicant who requests dismissal of its application after that
application has been designated for comparative hearing may submit a written
petition requesting that the dismissal be without prejudice. Such petition
must demonstrate good cause and be served upon all parties of record. The
Commission may grant such petition and dismiss the application without
prejudice or deny the petition and dismiss the application with prejudice.
(b) Dismissal of mutually exclusive applications not granted. The Commission
may dismiss mutually exclusive applications:
(1) For which the applicant did not submit the winning bid in a competitive
bidding process; or
(2) That receive comparative consideration in a hearing but are not granted
by order of the presiding officer.
(c) Dismissal for failure to prosecute. The Commission may dismiss
applications for failure of the applicant to prosecute or for failure of the
applicant to respond substantially within a specified time period to
official correspondence or requests for additional information. Such
dismissal will generally be without prejudice if the failure to prosecute or
respond occurred prior to designation of the application for comparative
hearing, but may be with prejudice in cases of non-compliance with §1.945 of
this part. Dismissal will generally be with prejudice if the failure to
prosecute or respond occurred after designation of the application for
comparative hearing. The Commission may dismiss applications with prejudice
for failure of the applicant to comply with requirements related to a
competitive bidding process.
(d) Dismissal as defective. The Commission may dismiss without prejudice an
application that it finds to be defective. An application is defective if:
(1) It is unsigned or incomplete with respect to required answers to
questions, informational showings, or other matters of a formal character;
(2) It requests an authorization that would not comply with one or more of
the Commission's rules and does not contain a request for waiver of these
rule(s), or in the event the Commission denies such a waiver request, does
not contain an alternative proposal that fully complies with the rules;
(3) The appropriate filing fee has not been paid; or
(4) The FCC Registration Number (FRN) has not been provided.
(5) It requests a vanity call sign and the applicant has pending another
vanity call sign application with the same receipt date.
(e) Dismissal because spectrum not available. The Commission may dismiss
applications that request spectrum which is unavailable because:
(1) It is not allocated for assignment in the specific service requested;
(2) It was previously assigned to another licensee on an exclusive basis or
cannot be assigned to the applicant without causing harmful interference; or
(3) Reasonable efforts have been made to coordinate the proposed facility
with foreign administrations under applicable international agreements, and
an unfavorable response (harmful interference anticipated) has been
received.
(f) Dismissal as untimely. The Commission may dismiss without prejudice
applications that are premature or late filed, including applications filed
prior to the opening date or after the closing date of a filing window, or
after the cut-off date for a mutually exclusive application filing group.
[ 63 FR 68930 , Dec. 14, 1998, as amended at 66 FR 47895 , Sept. 14, 2001; 71 FR 66461 , Nov. 15, 2006]
§ 1.935 Agreements to dismiss applications, amendments or pleadings.
top
Parties that have filed applications that are mutually exclusive with one or
more other applications, and then enter into an agreement to resolve the
mutual exclusivity by withdrawing or requesting dismissal of the
application(s), specific frequencies on the application or an amendment
thereto, must obtain the approval of the Commission. Parties that have filed
or threatened to file a petition to deny, informal objection or other
pleading against an application and then seek to withdraw or request
dismissal of, or refrain from filing, the petition, either unilaterally or
in exchange for a financial consideration, must obtain the approval of the
Commission.
(a) The party withdrawing or requesting dismissal of its application (or
specific frequencies on the application), petition to deny, informal
objection or other pleading or refraining from filing a pleading must submit
to the Commission a request for approval of the withdrawal or dismissal, a
copy of any written agreement related to the withdrawal or dismissal, and an
affidavit setting forth:
(1) A certification that neither the party nor its principals has received
or will receive any money or other consideration in excess of the legitimate
and prudent expenses incurred in preparing and prosecuting the application,
petition to deny, informal objection or other pleading in exchange for the
withdrawal or dismissal of the application, petition to deny, informal
objection or other pleading, or threat to file a pleading, except that this
provision does not apply to dismissal or withdrawal of applications pursuant
to bona fide merger agreements;
(2) The exact nature and amount of any consideration received or promised;
(3) An itemized accounting of the expenses for which it seeks reimbursement;
and
(4) The terms of any oral agreement related to the withdrawal or dismissal
of the application, petition to deny, informal objection or other pleading,
or threat to file a pleading.
(b) In addition, within 5 days of the filing date of the applicant's or
petitioner's request for approval, each remaining party to any written or
oral agreement must submit an affidavit setting forth:
(1) A certification that neither the applicant nor its principals has paid
or will pay money or other consideration in excess of the legitimate and
prudent expenses of the petitioner in exchange for withdrawing or dismissing
the application, petition to deny, informal objection or other pleading; and
(2) The terms of any oral agreement relating to the withdrawal or dismissal
of the application, petition to deny, informal objection or other pleading.
(c) No person shall make or receive any payments in exchange for withdrawing
a threat to file or refraining from filing a petition to deny, informal
objection, or any other pleading against an application. For the purposes of
this section, reimbursement by an applicant of the legitimate and prudent
expenses of a potential petitioner or objector, incurred reasonably and
directly in preparing to file a petition to deny, will not be considered to
be payment for refraining from filing a petition to deny or an informal
objection. Payments made directly to a potential petitioner or objector, or
a person related to a potential petitioner or objector, to implement
non-financial promises are prohibited unless specifically approved by the
Commission.
(d) For the purposes of this section:
(1) Affidavits filed pursuant to this section must be executed by the filing
party, if an individual; a partner having personal knowledge of the facts,
if a partnership; or an officer having personal knowledge of the facts, if a
corporation or association.
(2) Each application, petition to deny, informal objection or other pleading
is deemed to be pending before the Commission from the time the petition to
deny is filed with the Commission until such time as an order or
correspondence of the Commission granting, denying or dismissing it is no
longer subject to reconsideration by the Commission or to review by any
court.
(3) “Legitimate and prudent expenses” are those expenses reasonably incurred
by a party in preparing to file, filing, prosecuting and/or settling its
application, petition to deny, informal objection or other pleading for
which reimbursement is sought.
(4) “Other consideration” consists of financial concessions, including, but
not limited to, the transfer of assets or the provision of tangible
pecuniary benefit, as well as non-financial concessions that confer any type
of benefit on the recipient.
(e) Notwithstanding the provisions of this section, any payments made or
received in exchange for withdrawing a short-form application for a
Commission authorization awarded through competitive bidding shall be
subject to the restrictions set forth in §1.2105(c) of this chapter.
[ 63 FR 68931 , Dec. 14, 1998]
§ 1.937 Repetitious or conflicting applications.
top
(a) Where the Commission has, for any reason, dismissed with prejudice or
denied any license application in the Wireless Radio Services, or revoked
any such license, the Commission will not consider a like or new application
involving service of the same kind to substantially the same area by
substantially the same applicant, its successor or assignee, or on behalf of
or for the benefit of the original parties in interest, until after the
lapse of 12 months from the effective date of final Commission action.
(b) [Reserved]
(c) If an appeal has been taken from the action of the Commission dismissing
with prejudice or denying any application in the Wireless Radio Services, or
if the application is subsequently designated for hearing, a like
application for service of the same type to the same area, in whole or in
part, filed by that applicant or by its successor or assignee, or on behalf
or for the benefit of the parties in interest to the original application,
will not be considered until the final disposition of such appeal.
(d) While an application is pending, any subsequent inconsistent or
conflicting application submitted by, on behalf of, or for the benefit of
the same applicant, its successor or assignee will not be accepted for
filing.
[ 63 FR 68931 , Dec. 14, 1998, as amended at 68 FR 25842 , May 14, 2003]
§ 1.939 Petitions to deny.
top
(a) Who may file. Any party in interest may file with the Commission a
petition to deny any application listed in a Public Notice as accepted for
filing, whether as filed originally or upon major amendment as defined in
§1.929 of this part.
(1) For auctionable license applications, petitions to deny and related
pleadings are governed by the procedures set forth in §1.2108 of this part.
(2) Petitions to deny for non-auctionable applications that are subject to
petitions under §309(d) of the Communications Act must comply with the
provisions of this section and must be filed no later than 30 days after the
date of the Public Notice listing the application or major amendment to the
application as accepted for filing.
(b) Filing of petitions. Petitions to deny and related pleadings may be
filed electronically via ULS. Manually filed petitions to deny must be filed
with the Office of the Secretary, 236 Massachusetts Ave., NE., Washington,
DC 20002. Attachments to manually filed applications may be filed on a
standard 31/4" magnetic diskette formatted to be readable by high density
floppy drives operating under MS–DOS (version 3.X or later compatible
versions). Each diskette submitted must contain an ASCII text file listing
each filename and a brief description of the contents of each file on the
diskette. The files on the diskette, other than the table of contents,
should be in Adobe Acrobat Portable Document Format (PDF) whenever possible.
Petitions to deny and related pleadings must reference the file number of
the pending application that is the subject of the petition.
(c) Service. A petitioner shall serve a copy of its petition to deny on the
applicant and on all other interested parties pursuant to §1.47. Oppositions
and replies shall be served on the petitioner and all other interested
parties.
(d) Content. A petition to deny must contain specific allegations of fact
sufficient to make a prima facie showing that the petitioner is a party in
interest and that a grant of the application would be inconsistent with the
public interest, convenience and necessity. Such allegations of fact, except
for those of which official notice may be taken, shall be supported by
affidavit of a person or persons with personal knowledge thereof.
(e) Petitions to deny amended applications. Petitions to deny a major
amendment to an application may raise only matters directly related to the
major amendment that could not have been raised in connection with the
application as originally filed. This paragraph does not apply to
petitioners who gain standing because of the major amendment.
(f) Oppositions and replies. The applicant and any other interested party
may file an opposition to any petition to deny and the petitioner may file a
reply thereto in which allegations of fact or denials thereof, except for
those of which official notice may be taken, shall be supported by affidavit
of a person or persons with personal knowledge thereof. Time for filing of
oppositions and replies is governed by §1.45 of this part for
non-auctionable services and §1.2108 of this part for auctionable services.
(g) Dismissal of petition. The Commission may dismiss any petition to deny
that does not comply with the requirements of this section if the issues
raised become moot, or if the petitioner or his/her attorney fails to appear
at a settlement conference pursuant to §1.956 of this part. The reasons for
the dismissal will be stated in the dismissal letter or order. When a
petition to deny is dismissed, any related responsive pleadings are also
dismissed
(h) Grant of petitioned application. If a petition to deny has been filed
and the Commission grants the application, the Commission will dismiss or
deny the petition by issuing a concise statement of the reason(s) for
dismissing or denying the petition, disposing of all substantive issues
raised in the petition.
[ 63 FR 68931 , Dec. 14, 1998, as amended at 64 FR 53240 , Oct. 1, 1999; 70 FR 61058 , Oct. 20, 2005; 71 FR 15619 , Mar. 29, 2006]
§ 1.945 License grants.
top
(a) License grants—auctionable license applications. Procedures for grant of
licenses that are subject to competitive bidding under section 309(j) of the
Communications Act are set forth in §§1.2108 and 1.2109 of this part.
(b) License grants—non-auctionable license applications. No application that
is not subject to competitive bidding under §309(j) of the Communications
Act will be granted by the Commission prior to the 31st day following the
issuance of a Public Notice of the acceptance for filing of such application
or of any substantial amendment thereof, unless the application is not
subject to §309(b) of the Communications Act.
(c) Grant without hearing. In the case of both auctionable license
applications and non-mutually exclusive non-auctionable license
applications, the Commission will grant the application without a hearing if
it is proper upon its face and if the Commission finds from an examination
of such application and supporting data, any pleading filed, or other
matters which it may officially notice, that:
(1) There are no substantial and material questions of fact;
(2) The applicant is legally, technically, financially, and otherwise
qualified;
(3) A grant of the application would not involve modification, revocation,
or non-renewal of any other existing license;
(4) A grant of the application would not preclude the grant of any mutually
exclusive application; and
(5) A grant of the application would serve the public interest, convenience,
and necessity.
(d) Grant of petitioned applications. The FCC may grant, without a formal
hearing, an application against which petition(s) to deny have been filed.
If any petition(s) to deny are pending (i.e. have not been dismissed or
withdrawn by the petitioner) when an application is granted, the FCC will
deny the petition(s) and issue a concise statement of the reason(s) for the
denial, disposing of all substantive issues raised in the petitions.
(e) Partial and conditional grants. The FCC may grant applications in part,
and/or subject to conditions other than those normally applied to
authorizations of the same type. When the FCC does this, it will inform the
applicant of the reasons therefor. Such partial or conditional grants are
final unless the FCC revises its action in response to a petition for
reconsideration. Such petitions for reconsideration must be filed by the
applicant within thirty days after the date of the letter or order stating
the reasons for the partial or conditional grant, and must reject the
partial or conditional grant and return the instrument of authorization.
(f) Designation for hearing. If the Commission is unable to make the
findings prescribed in subparagraph (c), it will formally designate the
application for hearing on the grounds or reasons then obtaining and will
notify the applicant and all other known parties in interest of such action.
(1) Orders designating applications for hearing will specify with
particularity the matters in issue.
(2) Parties in interest, if any, who are not notified by the Commission of
its action in designating a particular application for hearing may acquire
the status of a party to the proceeding by filing a petition for
intervention showing the basis of their interest not more than 30 days after
publication in theFederal Registerof the hearing issues or any substantial
amendment thereto.
(3) The applicant and all other parties in interest shall be permitted to
participate in any hearing subsequently held upon such applications.
Hearings may be conducted by the Commission or by the Chief of the Wireless
Telecommunications Bureau, or, in the case of a question which requires oral
testimony for its resolution, an Administrative Law Judge. The burden of
proceeding with the introduction of evidence and burden of proof shall be
upon the applicant, except that with respect to any issue presented by a
petition to deny or a petition to enlarge the issues, such burdens shall be
as determined by the Commission or the Chief of the Wireless
Telecommunications Bureau.
[ 63 FR 68932 , Dec. 14, 1998]
§ 1.946 Construction and coverage requirements.
top
Link to an amendment published at 72 FR 48842 , Aug. 24, 2007.
(a) Construction and commencement of service requirements. For each of the
Wireless Radio Services, requirements for construction and commencement of
service or commencement of operations are set forth in the rule part
governing the specific service. For purposes of this section, the period
between the date of grant of an authorization and the date of required
commencement of service or operations is referred to as the construction
period.
(b) Coverage and substantial service requirements. In certain Wireless Radio
Services, licensees must comply with geographic coverage requirements or
substantial service requirements within a specified time period. These
requirements are set forth in the rule part governing each specific service.
For purposes of this section, the period between the date of grant of an
authorization and the date that a particular degree of coverage or
substantial service is required is referred to as the coverage period.
(c) Termination of authorizations. If a licensee fails to commence service
or operations by the expiration of its construction period or to meet its
coverage or substantial service obligations by the expiration of its
coverage period, its authorization terminates automatically, without
specific Commission action, on the date the construction or coverage period
expires.
(d) Licensee notification of compliance. A licensee who commences service or
operations within the construction period or meets its coverage or
substantial services obligations within the coverage period must notify the
Commission by filing FCC Form 601. The notification must be filed within 15
days of the expiration of the applicable construction or coverage period.
Where the authorization is site-specific, if service or operations have
begun using some, but not all, of the authorized transmitters, the
notification must show to which specific transmitters it applies.
(e) Requests for extension of time. Licensees may request to extend a
construction period or coverage period by filing FCC Form 601. The request
must be filed before the expiration of the construction or coverage period.
(1) An extension request may be granted if the licensee shows that failure
to meet the construction or coverage deadline is due to involuntary loss of
site or other causes beyond its control.
(2) Extension requests will not be granted for failure to meet a
construction or coverage deadline due to delays caused by a failure to
obtain financing, to obtain an antenna site, or to order equipment in a
timely manner. If the licensee orders equipment within 90 days of its
initial license grant, a presumption of diligence is established.
(3) Extension requests will not be granted for failure to meet a
construction or coverage deadline because the licensee undergoes a transfer
of control or because the licensee intends to assign the authorization. The
Commission will not grant extension requests solely to allow a transferee or
assignee to complete facilities that the transferor or assignor failed to
construct.
(4) The filing of an extension request does not automatically extend the
construction or coverage period unless the request is based on involuntary
loss of site or other circumstances beyond the licensee's control, in which
case the construction period is automatically extended pending disposition
of the extension request.
(5) A request for extension of time to construct a particular transmitter or
other facility does not extend the construction period for other
transmitters and facilities under the same authorization.
[ 63 FR 68933 , Dec. 14, 1998, as amended at 69 FR 46397 , Aug. 3, 2004; 71 FR 52749 , Sept. 7, 2006]
§ 1.947 Modification of licenses.
top
(a) All major modifications, as defined in §1.929 of this part, require
prior Commission approval. Applications for major modifications also shall
be treated as new applications for determination of filing date, Public
Notice, and petition to deny purposes.
(b) Licensees may make minor modifications to station authorizations, as
defined in §1.929 of this part (other than pro forma transfers and
assignments), as a matter of right without prior Commission approval. Where
other rule parts permit licensees to make permissive changes to technical
parameters without notifying the Commission (e.g., adding, modifying, or
deleting internal sites), no notification is required. For all other types
of minor modifications (e.g., name, address, point of contact changes),
licensees must notify the Commission by filing FCC Form 601 within thirty
(30) days of implementing any such changes.
(c) Multiple pending modification applications requesting changes to the
same or related technical parameters on an authorization are not permitted.
If a modification application is pending, any additional changes to the same
or related technical parameters may be requested only in an amendment to the
pending modification application.
(d) Any proposed modification that requires a fee as set forth at part 1,
subpart G, of this chapter must be filed in accordance with §1.913.
[ 63 FR 68933 , Dec. 14, 1998, as amended at 64 FR 53240 , Oct. 1, 1999]
§ 1.948 Assignment of authorization or transfer of control, notification of
consummation.
top
(a) General. Except as provided in this section, authorizations in the
Wireless Radio Services may be assigned by the licensee to another party,
voluntarily or involuntarily, directly or indirectly, or the control of a
licensee holding such authorizations may be transferred, only upon
application to and approval by the Commission.
(b) Limitations on transfers and assignments. (1) A change from less than
50% ownership to 50% or more ownership shall always be considered a transfer
of control.
(2) In other situations a controlling interest shall be determined on a
case-by-case basis considering the distribution of ownership, and the
relationships of the owners, including family relationships.
(3) Designated Entities, as defined in §1.2110(a) of this part, must comply
with §§1.2110 and 1.2111 of this part when seeking to assign or transfer
control of an authorization.
(4) Stations must meet all applicable requirements regarding transfers and
assignments contained in the rules pertaining to the specific service in
which the station is licensed.
(5) Licenses, permits, and authorizations for stations in the Amateur, Ship,
Aircraft, Commercial Operator and Personal Radio Services (except 218–219
MHz Service) may not be assigned or transferred, unless otherwise stated.
(c) Application required. In the case of an assignment of authorization or
transfer of control, the assignor must file an application for approval of
the assignment on FCC Form 603. If the assignee or transferee is subject to
the ownership reporting requirements of §1.2112, the assignee or transferee
must also file an updated FCC Form 602 or certify that a current FCC Form
602 is on file.
(1) In the case of a non-substantial ( pro forma ) transfer or assignment
involving a telecommunications carrier, as defined in §153(44) of the
Communications Act, filing of the Form 603 and Commission approval in
advance of the proposed transaction is not required, provided that:
(i) the affected license is not subject to unjust enrichment provisions
under subpart Q of this part;
(ii) the transfer or assignment does not involve a proxy contest; and
(iii) the transferee or assignee provides notice of the transaction by
filing FCC Form 603 within 30 days of its completion, and provides any
necessary updates of ownership information on FCC Form 602.
(2) In the case of an involuntary assignment or transfer, FCC Form 603 must
be filed no later than 30 days after the event causing the involuntary
assignment or transfer.
(d) Notification of consummation. In all Wireless Radio Services, licensees
are required to notify the Commission of consummation of an approved
transfer or assignment using FCC Form 603. The assignee or transferee is
responsible for providing this notification, including the date the
transaction was consummated. For transfers and assignments that require
prior Commission approval, the transaction must be consummated and
notification provided to the Commission within 180 days of public notice of
approval, and notification of consummation must occur no later than 30 days
after actual consummation, unless a request for an extension of time to
consummate is filed on FCC Form 603 prior to the expiration of this 180-day
period. For transfers and assignments that do not require prior Commission
approval, notification of consummation must be provided on FCC Form 603 no
later than 30 days after consummation, along with any necessary updates of
ownership information on FCC Form 602.
(e) Partial assignment of authorization. If the authorization for some, but
not all, of the facilities of a radio station in the Wireless Radio Services
is assigned to another party, voluntarily or involuntarily, such action is a
partial assignment of authorization. To request Commission approval of a
partial assignment of authorization, the assignor must notify the Commission
on FCC Form 603 of the facilities that will be deleted from its
authorization upon consummation of the assignment.
(f) Partitioning and disaggregation. Where a licensee proposes to partition
or disaggregate a portion of its authorization to another party, the
application will be treated as a request for partial assignment of
authorization. The assignor must notify the Commission on FCC Form 603 of
the geographic area or spectrum that will be deleted from its authorization
upon consummation of the assignment.
(g) Involuntary transfer and assignment. In the event of the death or legal
disability of a permittee or licensee, a member of a partnership, or a
person directly or indirectly in control of a corporation which is a
permittee or licensee, the Commission shall be notified promptly of the
occurrence of such death or legal disability. Within 30 days after the
occurrence of such death or legal disability (except in the case of a ship
or amateur station), an application shall be filed for consent to
involuntary assignment of such permit or license, or for involuntary
transfer of control of such corporation, to a person or entity legally
qualified to succeed to the foregoing interests under the laws of the place
having jurisdiction over the estate involved. The procedures and forms to be
used are the same procedures and forms as those specified in paragraph (b)
of this section. In the case of Ship, aircraft, Commercial Operator,
Amateur, and Personal Radio Services (except for 218–219 MHz Service)
involuntary assignment of licenses will not be granted; such licenses shall
be surrendered for cancellation upon the death or legal disability of the
licensee. Amateur station call signs assigned to the station of a deceased
licensee shall be available for reassignment pursuant to §97.19 of this
chapter.
(h) Disclosure requirements. Applicants for transfer or assignment of
licenses in auctionable services must comply with the disclosure
requirements of §§1.2111 and 1.2112 of this part.
(i) Trafficking. Applications for approval of assignment or transfer may be
reviewed by the Commission to determine if the transaction is for purposes
of trafficking in service authorizations.
(1) Trafficking consists of obtaining or attempting to obtain an
authorization for the principal purpose of speculation or profitable resale
of the authorization rather than for the provision of telecommunication
services to the public or for the licensee's own private use.
(2) The Commission may require submission of an affirmative, factual
showing, supported by affidavit of persons with personal knowledge thereof,
to demonstrate that the assignor did not acquire the authorization for the
principal purpose of speculation or profitable resale of the authorization.
This showing may include, for example, a demonstration that the proposed
assignment is due to changed circumstances (described in detail) affecting
the licensee after the grant of the authorization, or that the proposed
assignment is incidental to a sale of other facilities or a merger of
interests.
(j) Processing of applications. Applications for assignment of authorization
or transfer of control relating to the Wireless Radio Services will be
processed pursuant either to general approval procedures or the immediate
approval procedures, as discussed herein.
(1) General approval procedures. Applications will be processed pursuant to
the general approval procedures set forth in this paragraph unless they are
submitted and qualify for the immediate approval procedures set forth in
paragraph (j)(2) of this section.
(i) To be accepted for filing under these general approval procedures, the
application must be sufficiently complete and contain all necessary
information and certifications requested on the applicable form, FCC Form
603, including any information and certifications (including those of the
proposed assignee or transferee relating to eligibility, basic
qualifications, and foreign ownership) required by the rules of this chapter
and any rules pertaining to the specific service for which the application
is filed, and must include payment of the required application fee(s) ( see
§1.1102).
(ii) Once accepted for filing, the application will be placed on public
notice, except no prior public notice will be required for applications
involving authorizations in the Private Wireless Services, as specified in
§1.933(d)(9).
(iii) Petitions to deny filed in accordance with section 309(d) of the
Communications Act must comply with the provisions of §1.939, except that
such petitions must be filed no later than 14 days following the date of the
public notice listing the application as accepted for filing.
(iv) No later than 21 days following the date of the public notice listing
an application as accepted for filing, the Wireless Telecommunications
Bureau (Bureau) will affirmatively consent to the application, deny the
application, or determine to subject the application to further review. For
applications for which no prior public notice is required, the Bureau will
affirmatively consent to the application, deny the application, or determine
to subject the application to further review no later than 21 days following
the date on which the application has been filed, if filed electronically,
and any required application fee has been paid ( see §1.1102); if filed
manually, the Bureau will affirmatively consent to the application, deny the
application, or determine to subject the application to further review no
later than 21 days after the necessary data in the manually filed
application is entered into ULS.
(v) If the Bureau determines to subject the application to further review,
it will issue a public notice so indicating. Within 90 days following the
date of that public notice, the Bureau will either take action upon the
application or provide public notice that an additional 90-day period for
review is needed.
(vi) Consent to the application is not deemed granted until the Bureau
affirmatively acts upon the application.
(vii) Grant of consent to the application will be reflected in a public
notice (see §1.933(a)) promptly issued after the grant.
(viii) If any petition to deny is filed, and the Bureau grants the
application, the Bureau will deny the petition(s) and issue a concise
statement of the reason(s) for denial, disposing of all substantive issues
raised in the petition(s).
(2) Immediate approval procedures. Applications that meet the requirements
of paragraph (j)(2)(i) of this section qualify for the immediate approval
procedures.
(i) To qualify for the immediate approval procedures, the application must
be sufficiently complete, contain all necessary information and
certifications (including those relating to eligibility, basic
qualifications, and foreign ownership), and include payment of the requisite
application fee(s), as required for an application processed under the
general approval procedures set forth in paragraph (j)(1) of this section,
and also must establish, through certifications, that the following
additional qualifications are met:
(A) The license does not involve spectrum licensed in a Wireless Radio
Service that may be used to provide interconnected mobile voice and/or data
services under the applicable service rules and that would, if assigned or
transferred, create a geographic overlap with spectrum in any licensed
Wireless Radio Service (including the same service) in which the proposed
assignee or transferee already holds a direct or indirect interest of 10% or
more ( see §1.2112), either as a licensee or a spectrum lessee, and that
could be used by the assignee or transferee to provide interconnected mobile
voice and/or data services;
(B) The licensee is not a designated entity or entrepreneur subject to
unjust enrichment requirements and/or transfer restrictions under applicable
Commission rules ( see §§1.2110 and 1.2111, and §§24.709, 24.714, and 24.839
of this chapter); and,
(C) The assignment or transfer of control does not require a waiver of, or
declaratory ruling pertaining to, any applicable Commission rules, and there
is no pending issue as to whether the license is subject to revocation,
cancellation, or termination by the Commission.
(ii) Provided that the application establishes that it meets all of the
requisite elements to qualify for these immediate approval procedures,
consent to the assignment or transfer of control will be reflected in ULS.
If the application is filed electronically, consent will be reflected in ULS
on the next business day after the filing of the application; if filed
manually, consent will be reflected in ULS on the next business day after
the necessary data in the manually filed application is entered into ULS.
Consent to the application is not deemed granted until the Bureau
affirmatively acts upon the application.
(iii) Grant of consent to the application under these immediate approval
procedures will be reflected in a public notice ( see §1.933(a)) promptly
issued after the grant, and is subject to reconsideration ( see §§1.106(f),
1.108, 1.113).
[ 63 FR 68933 , Dec. 14, 1998, as amended at 64 FR 62120 , Nov. 16, 1999; 68 FR 42995 , July 21, 2003; 68 FR 66276 , Nov. 25, 2003; 69 FR 77944 , Dec. 29,
2004; 69 FR 77549 , Dec. 27, 2004]
Effective Date Note: At 69 FR 77549 , Dec. 27, 2004, §1.948(j)(2) was
revised. This paragraph contains information collection and recordkeeping
requirements and will not become effective until approval has been given by
the Office of Management and Budget.
§ 1.949 Application for renewal of license.
top
(a) Applications for renewal of authorizations in the Wireless Radio
Services must be filed no later than the expiration date of the
authorization for which renewal is sought, and no sooner than 90 days prior
to expiration. Renewal applications must be filed on the same form as
applications for initial authorization in the same service, i.e., FCC Form
601 or 605. Additional renewal requirements applicable to specific services
are set forth in the subparts governing those services.
(b) Licensees with multiple authorizations in the same service may request a
common day and month on which such authorizations expire for renewal
purposes. License terms may be shortened by up to one year but will not be
extended to accommodate the applicant's selection.
[ 63 FR 68934 , Dec. 14, 1998]
§ 1.951 Duty to respond to official communications.
top
Licensees or applicants in the Wireless Radio Services receiving official
notice of an apparent or actual violation of a federal statute,
international agreement, Executive Order, or regulation pertaining to
communications shall respond in writing within 10 days to the office of the
FCC originating the notice, unless otherwise specified. Responses to
official communications must be complete and self-contained without
reference to other communications unless copies of such other communications
are attached to the response. Licensees or applicants may respond via ULS.
[ 63 FR 68934 , Dec. 14, 1998]
§ 1.955 Termination of authorizations.
top
Link to an amendment published at 72 FR 48843 , Aug. 24, 2007.
(a) Authorizations in general remain valid until terminated in accordance
with this section, except that the Commission may revoke an authorization
pursuant to section 312 of the Communications Act of 1934, as amended. See
47 U.S.C. 312.
(1) Expiration . Authorizations automatically terminate, without specific
Commission action, on the expiration date specified therein, unless a timely
application for renewal is filed. See §1.949 of this part. No authorization
granted under the provisions of this part shall be for a term longer than
ten years, except to the extent a longer term is authorized under §27.13 of
part 27 of this chapter.
(2) Failure to meet construction or coverage requirements . Authorizations
automatically terminate, without specific Commission action, if the licensee
fails to meet applicable construction or coverage requirements. See
§1.946(c) of this part.
(3) Service discontinued. Authorizations automatically terminate, without
specific Commission action, if service is permanently discontinued. The
Commission authorization or the individual service rules govern the
definition of permanent discontinuance for purposes of this section. A
licensee who discontinues operations shall notify the Commission of the
discontinuance of operations by submitting FCC Form 601 or 605 requesting
license cancellation.
(b) Special temporary authority (STA) automatically terminates without
specific Commission action upon failure to comply with the terms and
conditions therein, or at the end of the period specified therein, unless a
timely request for an extension of the STA term is filed in accordance with
§1.931 of this part. If a timely filed request for extension of the STA term
is dismissed or denied, the STA automatically terminates, without specific
Commission action, on the day after the applicant or the applicant's
attorney is notified of the Commission's action dismissing or denying the
request for extension.
(c) Authorizations submitted by licensees for cancellation terminate when
the Commission gives Public Notice of such action.
[ 63 FR 68934 , Dec. 14, 1998, as amended at 64 FR 53240 , Oct. 1, 1999; 70 FR 61058 , Oct. 20, 2005; 72 FR 27708 , May 16, 2007]
Editorial Note: At 64 FR 53240 , Oct. 1, 1999, §1.955 was amended by
revising the last sentence of paragraph (b)(2) to read “ See §1.946(c) of
this part.”, effective Nov. 30, 1999. However, paragraph (b)(2) does not
exist in the 1998 volume.
§ 1.956 Settlement conferences.
top
Parties are encouraged to use alternative dispute resolution procedures to
settle disputes. See subpart E of this part. In any contested proceeding,
the Commission, in its discretion, may direct the parties or their attorneys
to appear before it for a conference.
(a) The purposes of such conferences are:
(1) To obtain admissions of fact or stipulations between the parties as to
any or all of the matters in controversy;
(2) To consider the necessity for or desirability of amendments to the
pleadings, or of additional pleadings or evidentiary submissions;
(3) To consider simplification or narrowing of the issues;
(4) To encourage settlement of the matters in controversy by agreement
between the parties; and
(5) To consider other matters that may aid in the resolution of the
contested proceeding.
(b) Conferences are scheduled by the Commission at a time and place it may
designate, to be conducted in person or by telephone conference call.
(c) The failure of any party or attorney, following reasonable notice, to
appear at a scheduled conference will be deemed a failure to prosecute,
subjecting that party's application or petition to dismissal by the
Commission.
[ 63 FR 68935 , Dec. 14, 1998]
§ 1.957 Procedure with respect to amateur radio operator license.
top
Each candidate for an amateur radio license which requires the applicant to
pass one or more examination elements must present the Volunteer Examiners
(VEs) with a properly completed FCC Form 605 prior to the examination. Upon
completion of the examination, the VEs will grade the test papers. If the
applicant is successful, the VEs will forward the candidate's application to
a Volunteer-Examiner Coordinator (VEC). The VEs will then issue a
certificate for sucessful completion of an amateur radio operator
examination. The VEC will forward the application to the Commission's
Gettysburg, Pennsylvania, facility.
[ 63 FR 68935 , Dec. 14, 1998]
§ 1.958 Distance computation.
top
The method given in this section must be used to compute the distance
between any two locations, except that, for computation of distance
involving stations in Canada and Mexico, methods for distance computation
specified in the applicable international agreement, if any, must be used
instead. The result of a distance calculation under parts 21 and 101 of this
chapter must be rounded to the nearest tenth of a kilometer. The method set
forth in this paragraph is considered to be sufficiently accurate for
distances not exceeding 475 km (295 miles).
(a) Convert the latitudes and longitudes of each reference point from
degree-minute-second format to degree-decimal format by dividing minutes by
60 and seconds by 3600, then adding the results to degrees.
[er13ap05.008.gif]
(b) Calculate the mean geodetic latitude between the two reference points by
averaging the two latitudes:
[er13ap05.009.gif]
(c) Calculate the number of kilometers per degree latitude difference for
the mean geodetic latitude calculated in paragraph (b) of this section as
follows:
KPD[lat]= 111.13209 − 0.56605 cos 2ML + 0.00120 cos 4ML
(d) Calculate the number of kilometers per degree of longitude difference
for the mean geodetic latitude calculated in paragraph (b) of this section
as follows:
KPD[lon]= 111.41513 cos 5ML − 0.09455 cos 3ML + 0.00012 cos 5ML
(e) Calculate the North-South distance in kilometers as follows:
NS = KPD[lat]× (LAT1[dd]− LAT2[dd])
(f) Calculate the East-West distance in kilometers as follows:
EW = KPD[lon]× (LON1[dd]− LON2[dd])
(g) Calculate the distance between the locations by taking the square root
of the sum of the squares of the East-West and North-South distances:
[er13ap05.010.gif]
(h) Terms used in this section are defined as follows:
(1) LAT1[dd]and LON1[dd]are the coordinates of the first location in
degree-decimal format.
(2) LAT2[dd]and LON2[dd]are the coordinates of the second location in
degree-decimal format.
(3) ML is the mean geodetic latitude in degree-decimal format.
(4) KPD[lat]is the number of kilometers per degree of latitude at a given
mean geodetic latitude.
(5) KPD[lon]is the number of kilometers per degree of longitude at a given
mean geodetic latitude.
(6) NS is the North-South distance in kilometers.
(7) EW is the East-West distance in kilometers.
(8) DIST is the distance between the two locations, in kilometers.
[ 70 FR 19306 , Apr. 13, 2005]
§ 1.959 Computation of average terrain elevation.
top
Except as otherwise specified in §90.309(a)(4) of this chapter, average
terrain elevation must be calculated by computer using elevations from a 30
second point or better topographic data file. The file must be identified.
If a 30 second point data file is used, the elevation data must be processed
for intermediate points using interpolation techniques; otherwise, the
nearest point may be used. In cases of dispute, average terrain elevation
determinations can also be done manually, if the results differ
significantly from the computer derived averages.
(a) Radial average terrain elevation is calculated as the average of the
elevation along a straight line path from 3 to 16 kilometers (2 and 10
miles) extending radially from the antenna site. If a portion of the radial
path extends over foreign territory or water, such portion must not be
included in the computation of average elevation unless the radial path
again passes over United States land between 16 and 134 kilometers (10 and
83 miles) away from the station. At least 50 evenly spaced data points for
each radial should be used in the computation.
(b) Average terrain elevation is the average of the eight radial average
terrain elevations (for the eight cardinal radials).
(c) For locations in Dade and Broward Counties, Florida, the method
prescribed above may be used or average terrain elevation may be assumed to
be 3 meters (10 feet).
[ 70 FR 19306 , Apr. 13, 2005]
Reports To Be Filed With the Commission
top
§ 1.981 Reports, annual and semiannual.
top
(a) Licensees of stations authorized for developmental operation shall
submit a report on the results of the developmental program. The report
shall be filed with and made a part of each application for renewal of
authorization. The report shall be filed at the Commission's offices in
Washington, DC or alternatively may be sent to the commission electronically
via the ULS.
(b) The report shall include comprehensive and detailed information on the
following:
(1) The final objective.
(2) Results of operation to date.
(3) Analysis of the results obtained.
(4) Copies of any published reports.
(5) Need for continuation of the program.
(6) Number of hours of operation on each frequency.
(c) Where required by the particular service rules, licensees who have
entered into agreements with other persons for the cooperative use of radio
station facilities must submit annually an audited financial statement
reflecting the nonprofit cost-sharing nature of the arrangement to the
Commission's offices in Washington, DC or alternatively may be sent to the
Commission electronically via the ULS, no later than three months after the
close of the licensee's fiscal year.
[ 63 FR 68935 , Dec. 14, 1998]
Subpart G—Schedule of Statutory Charges and Procedures for Payment
top
Source: 52 FR 5289 , Feb. 20, 1987, unless otherwise noted.
§ 1.1101 Authority.
top
Authority to impose and collect these charges is contained in title III,
section 3001 of the Omnibus Budget Reconciliation Act of 1989 (Pub. L.
101–239), revising 47 U.S.C. 158, which directs the Commission to prescribe
charges for certain of the regulatory services it provides to many of the
communications entities within its jurisdiction. This law revises section 8
of the Communications Act of 1934, as amended, which contains a Schedule of
Charges as well as procedures for modifying and collecting these charges.
[ 55 FR 19155 , May 8, 1990]
§ 1.1102 Schedule of charges for applications and other filings in the
wireless telecommunications services.
top
Those services designated with an asterisk in the payment type code column
have associated regulatory fees that must be paid at the same time the
application fee is paid. Please refer to §1.1152 for the appropriate
regulatory fee that must be paid for this service.
Service FCC form No. Fee amount Payment type code Address
1. Marine Coast:
a. New; Renewal/Modification 601 & 159 $115.00 PBMR* Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
b. Modification; Public Coast CMRS; Non-Profit 601 & 159 115.00 PBMM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
c. Assignment of Authorization 603 & 159 115.00 PBMM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
d. Transfer of Control
Spectrum Leasing for Public Coast 603 & 159
603–T/608** & 159 60.00 PATM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
e. Duplicate License 601 & 159 60.00 PADM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
f. Special Temporary Authority 601 & 159 160.00 PCMM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
g. Renewal Only 601 & 159 115.00 PBMR^* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburgh, PA 15251–5245.
h. Renewal (Electronic Filing) 601 & 159 115.00 PBMR^* Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
i. Renewal Only (Non-Profit; CMRS) 601 & 159 115.00 PBMM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburgh, PA 15251–5245.
j. Renewal (Electronic Filing) Non-profit, CMRS 601 & 159 115.00 PBMM
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
k. Rule Waiver 601, 603 or 603–T/608** & 159 170.00 PDWM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
l. Modification for Spectrum Leasing for Public Coast Stations 608** & 159
115.00 PBMM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
2. Aviation Ground:
a. New; Renewal/Modification 601 & 159 115.00 PBVR^* Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
b. Modification; Non-Profit 601 & 159 115.00 PBVM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
c. Assignment of Authorization 603 & 159 115.00 PBVM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
d. Transfer of Control 603 & 159 60.00 PATM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
e. Duplicate License 601 & 159 60.00 PADM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
f. Special Temporary Authority 601 & 159 160.00 PCVM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
g. Renewal Only 601 & 159 115.00 PBVR^* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburgh, PA 15251–5245.
h. Renewal (Electronic Filing) 601 & 159 115.00 PBVR^* Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
i. Renewal Only Non-Profit 601 & 159 115.00 PBVM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburgh, PA 15251–5245.
j. Renewal Non-Profit (Electronic Filing) 601 & 159 115.00 PBVM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
k. Rule Waiver 601 or 603 & 159 170.00 PDWM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
3. Ship:
a. New; Renewal/Modification; Renewal Only 605 & 159 60.00 PASR* Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
b. New; Renewal/Modification; Renewal Only (Electronic Filing) 605 & 159
60.00 PASR^* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
c. Renewal Only Non-profit 605 & 159 60.00 PASM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
d. Renewal Only Non-profit (Electronic Filing) 605 & 159 60.00 PASM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
e. Modification; Non-profit 605 & 159 60.00 PASM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
f. Modification; Non-profit (Electronic Filing) 605 & 159 60.00 PASM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
g. Duplicate License 605 & 159 60.00 PADM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
h. Duplicate License (Electronic Filing) 605 & 159 60.00 PADM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
i. Exemption from Ship Station Requirements 605 & 159 170.00 PDWM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
j. Rule Waiver 605 & 159 170.00 PDWM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
k. Exemption from Ship Station Requirements (Electronic Filing) 605 & 159
170.00 PDWM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
l. Rule Waiver (Electronic Filing) 605 & 159 170.00 PDWM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
4. Aircraft:
a. New; Commission Renewal/Modification 605 & 159 60.00 PAAR* Federal
Communications
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
b. New; Renewal/Modification (Electronic Filing) 605 & 159 60.00 PAAR*
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
c. Modification; Non-Profit 605 & 159 60.00 PAAM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
d. Modification Non-Profit (Electronic Filing) 605 & 159 60.00 PAAM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
e. Renewal Only 605 & 159 60.00 PAAR* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburgh, PA 15251–5245.
f. Renewal (Electronic Filing) 605 & 159 60.00 PAAR* Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
g. Renewal Only Non-Profit 605 & 159 60.00 PAAM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburgh, PA 15251–5245.
h. Renewal; Renewal/Modification Non-Profit (Electronic Filing) 605 & 159
60.00 PAAM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
i. Duplicate License 605 & 159 60.00 PADM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
j. Duplicate License (Electronic Filing) 605 & 159 60.00 PADM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
k. Rule Waiver 605 & 159 170.00 PDWM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
l. Rule Waiver (Electronic Filing) 605 & 159 170.00 PDWM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
5. Private Operational Fixed Microwave and Private DEMS:
a. New; Renewal/Modification 601 & 159 245.00 PEOR* Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
b. New; Renewal/Modification (Electronic Filing) 601 & 159 245.00 PEOR*
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
c. Modification; Consolidate Call Signs; Non-Profit 601 & 159 245.00 PEOM
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
d. Modification; Consolidate Call Signs; Non-Profit (Electronic Filing) 601
& 159 245.00 PEOM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
e. Renewal Only 601 & 159 245.00 PEOR* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburgh, PA 15251–5245.
f. Renewal (Electronic Filing) 601 & 159 245.00 PEOR* Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
g. Renewal Only Non-Profit 601 & 159 245.00 PEOM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburgh, PA 15251–5245.
h. Renewal Non-Profit (Electronic Filing) 601 & 159 245.00 PEOM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
i. Assignment 603 & 159 245.00 PEOM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
j. Assignment (Electronic Filing) 603 & 159 245.00 PEOM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
k. Transfer of Control; Spectrum Leasing 603 & 159
603–T/608** & 159 60.00 PATM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
l. Transfer of Control; Spectrum Leasing (Electronic Filing) 603 & 159
603–T/608** & 159 60.00 PATM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
m. Duplicate License 601 & 159 60.00 PADM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
n. Duplicate License (Electronic Filing) 601 & 159 60.00 PADM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
o. Special Temporary Authority 601 & 159 60.00 PAOM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
p. Special Temporary Authority (Electronic Filing) 601 & 159 60.00 PAOM
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
q. Rule Waiver 601, 603 or 603–T/608** & 159 170.00 PDWM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
r. Rule Waiver (Electronic Filing) 601, 603 or 603–T/608** & 159 170.00 PDWM
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
s. Modification for Spectrum Leasing 608** & 159 245.00 PEOM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
t. Modification for Spectrum Leasing (Electronic Filing) 608** & 159 245.00
PEOM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
6. Land MobilePMRS; Intelligent Transportation Service:
a. New or Renewal/Modification (Frequencies below 470 MHz (except 220 MHz)
902–928 MHz & RS) 601 & 159 60.00 PALR* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
b. New; Renewal/Modification (Frequencies below 470 MHz (except 220 MHz))
(Electronic Filing) 601 & 159 60.00 PALR* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
c. New; Renewal/Modification (Frequencies 470 MHz and above and 220 MHz
Local) 601 & 159 60.00 PALS* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
d. New; Renewal/Modification (Frequencies 470 MHz and above and 220 MHz
Local) (Electronic Filing) 601 & 159 60.00 PALS* Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
e. New; Renewal/Modification (220 MHz Nationwide) 601 & 159 60.00 PALT*
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
f. New; Renewal/Modification (220 MHz Nationwide) (Electronic Filing) 601 &
159 60.00 PALT* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
g. Modification; Non-Profit; For Profit Special Emergency and Public Safety;
and CMRS 601 & 159 60.00 PALM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
h. Modification; Non-Profit; For Profit Special Emergency and Public Safety;
and CMRS (Electronic Filing) 601 & 159 60.00 PALM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
i. Renewal Only 601 & 159 60.00
60.00
60.00 PALR*
PALS*
PALT* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburgh, PA 15251–5245.
j. Renewal (Electronic Filing) 601 & 159 60.00
60.00
60.00 PALR*
PALS*
PALT* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
k. Renewal Only (Non-Profit; CMRS; For-Profit Special Emergency and Public
Safety) 601 & 159 60.00 PALM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburgh, PA 15251–5245.
l. Renewal (Non-Profit; CMRS; For-Profit Special Emergency and Public
Safety) (Electronic Filing) 601 & 159 60.00 PALM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
m. Assignment of Authorization (PMRS & CMRS) 603 & 159 60.00 PALM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
n. Assignment of Authorization (PMRS & CMRS) (Electronic Filing) 603 & 159
60.00 PALM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
o. Transfer of Control (PMRS & CMRS);
Spectrum Leasing 603 & 159
603–T/608** & 159 60.00
60.00 PATM
PATM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
p. Transfer of Control (PMRS & CMRS);
Spectrum Leasing (Electronic Filing) 603 & 159
603–T/608** & 159 60.00
60.00 PATM
PATM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
q. Duplicate License 601 & 159 60.00 PADM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
r. Duplicate License (Electronic Filing) 601 & 159 60.00 PADM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
s. Special Temporary Authority 601 & 159 60.00 PALM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
t. Special Temporary Authority (Electronic Filing) 601 & 159 60.00 PALM
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
u. Rule Waiver 601, 603 or 603–T/608** & 159 170.00 PDWM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
v. Rule Waiver (Electronic Filing) 601, 603 or
603–T/608** & 159 170.00 PDWM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
w. Consolidate Call Signs 601 & 159 60.00 PALM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
x. Consolidate Call Signs (Electronic Filing) 601 & 159 60.00 PALM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
y. Modification for Spectrum Leasing 608** & 159 60.00 PALM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
z. Modification for Spectrum Leasing (Electronic Filing) 608** & 159 60.00
PALM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
7. 218–219 MHz (previously IVDS):
a. New; Renewal/Modification 601 & 159 60.00 PAIR* Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
b. New; Renewal/Modification (Electronic Filing) 601 & 159 60.00 PAIR*
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
c. Modification; Non-Profit 601 & 159 60.00 PAIM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
d. Modification; Non-Profit (Electronic Filing) 601 & 159 60.00 PAIM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
e. Renewal Only 601 & 159 60.00 PAIR* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburgh, PA 15251–5245
f. Renewal (Electronic Filing) 601 & 159 60.00 PAIR* Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
g. Assignment of Authorization 603 & 159 60.00 PAIM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
h. Assignment of Authorization (Electronic Filing) 603 & 159 60.00 PAIM
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
i. Transfer of Control
Spectrum Leasing (Electronic Filing) 603 & 159
603–T/608** & 159 60.00
60.00 PATM
PATM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
j. Transfer of Control
Spectrum Leasing (Electronic Filing) 603 & 159
603–T/608** & 159 60.00
60.00 PATM
PATM Federal Communication Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
k. Duplicate License 601 & 159 60.00 PADM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
l. Duplicate License (Electronic Filing) 601 & 159 60.00 PADM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
m. Special Temporary Authority 601 & 159 60.00 PAIM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
n. Special Temporary Authority (Electronic Filing) 601 & 159 60.00 PAIM
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
o. Modification for Spectrum Leasing 608** & 159 60.00 PAIM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
p. Modification for Spectrum Leasing (Electronic Filing) 608** & 159 60.00
PAIM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
8. General Mobile Radio (GMRS):
a. New; Renewal/Modification 605 & 159 60.00 PAZR* Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
b. New; Renewal/Modification (Electronic Filing) 605 & 159 60.00 PAZR*
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
c. Modification 605 & 159 60.00 PAZM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
d. Modification (Electronic Filing) 601 & 159 60.00 PAZM Federal
Communications Non-Profit Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
e. Renewal Only 601 & 159 60.00 PAZR* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburg, PA 15251–5245.
f. Renewal (Electronic Filing) 605 & 159 60.00 PAZR* Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
g. Duplicate License 605 & 159 60.00 PADM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
h. Duplicate License (Electronic Filing) 605 & 159 60.00 PADM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
i. Special Temporary Authority 605& 159 60.00 PAZM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
j. Special Temporary Authority (Electronic Filing) 605 & 159 60.00 PAZM
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
k. Rule Waiver 605 & 159 170.00 PDWM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
l. Rule Waiver (Electronic Filing) 605 & 159 170.00 PDWM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
9. Restricted Radiotelephone:
a. New (Lifetime Permit)
New (Limited Use) 605 & 159
605 & 159 60.00 PARR Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburgh, PA 15251–5245.
b. Duplicate/Replacement Permit
Duplicate/Replacement Permit (Limited Use) 605 & 159
605 & 159 60.00
60.00 PADM
PADM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburgh, PA 15251–5245.
10. Commercial Radio Operator:
a. Renewal Only; Renewal/Modification 605 & 159 60.00 PACS Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburgh, PA 15251–5245.
b. Duplicate 605 & 159 60.00 PADM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
11. Hearing Corres & 159 10,680.00 PFHM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
12. Common Carrier Microwave:(Pt. To Pt., Local TV Trans. & Millimeter Wave
Service):
a. New; Renewal/Modification (Electronic Filing Required) 601 & 159 245.00
CJPR* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
b. Major Modification; Consolidate Call Signs (Electronic Filing Required)
601 & 159 245.00 CJPM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
c. Renewal (Electronic Filing Required) 601 & 159 245.00 CJPR* Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
d. Assignment of Authorization; Transfer of Control:
Spectrum Leasing
Additional Stations (Electronic Filing Required) 603 & 159
603–T/608** & 159
603 or 603–T/608** & 159 90.00
90.00
60.00 CCPM
CCPM
CAPM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
e. Duplicate License (Electronic Filing Required) 601 & 159 60.00 PADM
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
f. Extension of Construction Authority (Electronic Filing Required) 601 &
159 90.00 CCPM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
g. Special Temporary Authority 601 & 159 115.00 CEPM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
h. Special Temporary Authority (Electronic Filing) 601 & 159 115.00 CEPM
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
i. Major Modification for Spectrum Leasing (Electronic Filing Required)
608** & 159 245.00 CJPM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
13. Common Carrier Microwave (DEMS):
a. New; Renewal/Modification (Electronic Filing Required)
601 & 159
245.00
CJLR* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
b. Major Modification; Consolidate Call Signs (Electronic Filing Required)
601 & 159 245.00 CJLM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
c. Renewal (Electronic Filing Required) 601 & 159 245.00 CJLR* Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
d. Assignment of Authorization; Transfer of Control;
Spectrum Leasing
Additional Stations (Electronic Filing Required) 603 & 159
603–T/608** & 159
603 or 603–T/608** & 159 90.00
90.00
60.00 CCLM
CCLM
CALM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
e. Duplicate License (Electronic Filing Required) 601 & 159 60.00 PADM
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
f. Extension of Construction Authority (Electronic Filing Required) 601 &
159 90.00 CCLM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
g. Special Temporary Authority 601 & 159 115.00 CELM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
h. Special Temporary Authority (Electronic Filing) 601 & 159 115.00 CELM
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
i. Major Modification for Spectrum Leasing (Electronic Filing Required)
608** & 159 90.00 CJLM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
14. Broadcast Auxiliary (Aural and TV Microwave):
a. New; Modification; Renewal/Modification
601 & 159
135.00
MEA Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
b. New; Modification; Renewal/Modification (Electronic Filing) 601 & 159
135.00 MEA Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
c. Special Temporary Authority 601 & 159 160.00 MGA Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
d. Special Temporary Authority (Electronic Filing) 601 & 159 160.00 MGA
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
e. Renewal Only 601 & 159 60.00 MAA Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburgh, PA 15251–5245.
f. Renewal (Electronic Filing) 601 & 159 60.00 MAA Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
15. Broadcast Auxiliary (Remote and Low Power):
a. New; Modification; Renewal/Modification 601 & 159 135.00 MEA Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
b. New; Modification; Renewal/Modification (Electronic Filing) 601 & 159
135.00 MEA Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
c. Renewal Only 601 & 159 60.00 MAA Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358245
Pittsburgh, PA 15251–5245.
d. Renewal (Electronic Commission Filing) 601 & 159 60.00 MAA Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
e. Special Temporary Authority 601 & 159 160.00 MGA Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
f. Special Temporary Authority (Electronic Filing) 601 & 159 160.00 MGA
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
16. Pt 22 Paging & Radiotelephone:
a. New; Major Mod; Additional Facility; Major Amendment; Major Renewal/Mod;
Fill in Transmitter (Per Transmitter) (Electronic Filing Required) 601 & 159
365.00 CMD Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
b. Minor Mod; Renewal; Minor Renewal/Mod; (Per Call Sign) 900 MHz Nationwide
Renewal Net Organ; New Operator (Per Operator/Per City) Notice of Completion
of Construction or Extension of Time to Construct (Per Application)
(Electronic Filing Required) 601 & 159 60.00 CAD Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
c. Auxiliary Test (Per Transmitter); Consolidate Call Signs (Per Call Sign)
(Electronic Filing Required) 601 & 159 320.00 CLD Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
d. Special Temporary Authority (Per Location/Per Frequency) 601 & 159 320.00
CLD Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
e. Special Temporary Authority (Per Location/Per Frequency) (Electronic
Filing) 601 & 159 320.00 CLD Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
f. Assignment of License or Transfer of Control;
Spectrum Leasing (Full or Partial) (Per First Call Sign);
Additional Call Signs (Per Call Signs) (Electronic Filing Required) 603 &
159
603–T/608** & 159
603 or 603–T/608** & 159 365.00
365.00
60.00 CMD
CMD
CAD Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
g. Subsidiary Comm. Service (Per Request) (Electronic Filing Required) 601 &
159 160.00 CFD Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
h. Major Modification for Spectrum Leasing (Electronic Filing Required)
608** & 159 365.00 CMD Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
i. Minor Modification for Spectrum Leasing (Electronic Filing Required)
608** & 159 60.00 CAD Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
17. Cellular:
a. New; Major Mod; Additional Facility; Major Renewal/Mod (Per Call Sign)
(Electronic Filing Required) 601 & 159 365.00 CMC Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
b. Minor Modification; Minor Renewal/Mod (Per Call Sign) (Electronic Filing
Required) 601 & 159 95.00 CDC Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
c. Assignment of License; Transfer of Control (Full or Partial) (Per Call
Sign)
Spectrum Leasing (Electronic Filing Rquired) 603 & 159
603–T/608 ** & 159 365.00 CMC Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
d. Notice of Extension of Time to Complete Construction; (Per Request)
Renewal (Per Call Sign) (Electronic Filing Required) 601 & 159 60.00 CAC
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
e. Special Temporary Authority (Per Request) 601 & 159 320.00 CLC Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
f. Special Temporary Authority (Per Request) (Electronic Filing) 601 & 159
320.00 CLC Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
g. Combining Cellular Geographic Areas (Per Area) (Electronic Filing
Required) 601 & 159 80.00 CBC Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
h. Major Modification for Spectrum Leasing (Electronic Filing Required)
608** & 159 365.00 CMC Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
i. Minor Modification for Spectrum Leasing (Electronic Filing Required)
608** & 159 95.00 CDC Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
18. Rural Radio:
a. New; Major Renew/Mod; Additional Facility (Per Transmitter) (Electronic
Filing Required) 601 & 159 170.00 CGRR* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
b. Major Mod; Major Amendment (Per Transmitter) (Electronic Filing Required)
601 & 159 170.00 CGRM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
c. Minor Modification; (Per Transmitter) (Electronic Filing Required) 601 &
159 60.00 CARM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
d. Assignment of License; Transfer of Control (Full or Partial) (Per Call
Sign)
Spectrum Leasing
Additional Calls (Per Call Sign) (Electronic Filing Required) 603 & 159
603–T/608** & 159
603 or 603–T/608** & 159 170.00
170.00
60.00 CGRM
CGRM
CARM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
e. Renewal (Per Call Sign); Minor Renewal/Mod (Per Transmitter) (Electronic
Filing Required) 601 & 159 60.00 CARR* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
f. Notice of Completion of Construction Extension of Time to Construct (Per
Application) (Electronic Filing Required) 601 & 159 60.00 CARM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
g. Special Temporary Authority (Per Transmitter) 601 & 159 320.00 CLRM
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
h. Special Temporary Authority (Per Transmitter) (Electronic Filing) 601 &
159 320.00 CLRM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
i. Combining Call Signs (Per Call Sign) (Electronic Filing Required) 601 &
159 320.00 CLRM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
j. Auxiliary Test Station (Per Transmitter) (Electronic Filing Required) 601
& 159 320.00 CLRM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
k. Major Modification for Spectrum Leasing (Electronic Filing Required)
608** & 159 170.00 CGRM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
l. Minor Modification for Spectrum Leasing (Electronic Filing Required)
608** & 159 60.00 CARM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
19. Offshore Radio:
a. New; Major Mod; Additional Facility; Major Amendment; Major Renew/Mod;
Fill in Transmitters (Per Transmitter) (Electronic Filing Required) 601 &
159 170.00 CGF Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
b. Consolidate Call Signs (Per Call Sign); Auxiliary Test (Per Transmitter)
(Electronic Filing Required) 601 & 159 320.00 CLF Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
c. Minor Modification; Minor Renewal/Modification (Per Transmitter); Notice
of Completion of Construction or Extension of Time to Construct (Per
Application); Renewal (Per Call Sign) (Electronic Filing Required) 601 & 159
60.00 CAF Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
d. Assignment of License; Transfer of Control (Full or Partial)
Spectrum Leasing
Additional Calls (Electronic Filing Required) 603 & 159
603–T/608** & 159
603 or 603–T/608** & 159 170.00
170.00
60.00 CGF
CGF
CAF Federal Communications Commission.
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
e. Special Temporary Authority (Per Transmitter) 601 & 159 320.00 CLF
Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
f. Special Temporary Authority (Per Transmitter) (Electronic Filing) 601 &
159 320.00 CLF Federal Communications Commission
Wireless Bureau Applications
P.O. Box 3548994
Pittsburgh, PA 15251–5994.
g. Major Modification for Spectrum Leasing (Electronic Filing Required)
608** & 159 170.00 CGF Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
h. Minor Modification for Spectrum Leasing (Electronic Filing Required)
608** & 159 60.00 CAF Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5994.
20. Broadband Radio Service(Previously Multipoint Distribution Service):
a. New station (Electronic Filing Required) 601 & 159 245.00 CJM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5130.
b. Major Modification of Licenses (Electronic Filing Required) 601 & 159
245.00 CJM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5130.
c. Certification of Completion of Construction (Electronic Filing Required)
601 & 159 720.00 CPM* Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5130.
d. License Renewal (Electronic Filing Required) 601 & 159 245.00 CJM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5130.
e. Assignment of Authorization; Transfer of Control (first station)
(Electronic Filing Required)
Spectrum Leasing (first station)
Additional Station 603 & 159
603–T/608** & 159
603–T/608** & 159 90.00
90.00
60.00 CCM
CCM
CAM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5130.
f. Extension of Construction Authorization (Electronic Filing Required) 601
& 159 210.00 CHM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5130.
g. Special Temporary Authority or Request for Waiver of Prior Construction
Authorization (Electronic Filing) 601 & 159 115.00 CEM Federal
Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5130.
h. Special Temporary Authority 601 & 159 115.00 CEM Federal Communications
Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5130.
i. Major Modification for Spectrum Leasing (Electronic Filing Required)
608** & 159 245.00 CJM Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358994
Pittsburgh, PA 15251–5130.
21. Communication Assistance for Law Enforcement (CALEA) Petitions: Corres &
159 5,605.00 CALA Federal Communications Commission
Wireless Bureau Applications
P.O. Box 358130
Pittsburgh, PA 15251–5130.
**FCC Form 608, which is pending OMB approval, will upon its effective date
replace FCC Form 603–T, as noted in §1.1102, above.
[ 71 FR 54205 , Sept. 14, 2006]
§ 1.1103 Schedule of charges for equipment approval, experimental radio
services, and international telecommunications settlement services.
top
Service FCC form No. Fee amount Payment type code Address
1. Certification:
a. Receivers (except TV and FM) (Electronic Filing Only) 731 & 159 455.00
EEC Federal Communications Commission
Equipment Approval Services
P.O. Box 358315
Pittsburgh, PA 15251–5315.
b. Devices Under Parts 11, 15 & 18 (except receivers) (Electronic Filing
Only) 731 & 159 1,165.00 EGC Federal Communications Commission
Equipment Approval Services
P.O. Box 358315
Pittsburgh, PA 15251–5315.
c. All Other Devices (Electronic Filing Only) 731 & 159 585.00 EFT Federal
Communications Commission
Equipment Approval Services
P.O. Box 358315
Pittsburgh, PA 15251–5315.
d. Modifications and Class II Permissive Changes (Electronic Filing Only)
731 & 159 60.00 EAC Federal Communications Commission
Equipment Approval Services
P.O. Box 358315
Pittsburgh, PA 15251–5315.
e. Request for Confidentiality under Certification (Electronic Filing Only)
731 & 159 170.00 EBC Federal Communications Commission
Equipment Approval Services
P.O. Box 358315
Pittsburgh, PA 15251–5315.
f. Class III Permissive Changes (Electronic Filing Only) 731 & 159 585.00
ECC Federal Communications Commission
Equipment Approval Services
P.O. Box 358315
Pittsburgh, PA 15251–5315.
2. Advance Approval of Subscription TV Systems: Corres & 159 3,565.00 EIS
Federal Communications Commission
Equipment Approval Services
P.O. Box 358315
Pittsburgh, PA 15251–5315.
a. Request for Confidentiality For Advance Approval of Subscription TV
Systems Corres & 159 170.00 EBS Federal Communications Commission
Equipment Approval Services
P.O. Box 358315
Pittsburgh, PA 15251–5315.
3. Assignment of Grantee Code:
a. For all Application Types, except Subscription TV (Electronic Filing
Only—Optional Electronic Payment) Electronic Assignment & Form 159 or
Optional Electronic Payment 60.00 EAG Federal Communications Commission
Equipment Approval Services
P.O. Box 358315
Pittsburgh, PA 15251–5315.
4. Experimental Radio Service:
a. New Station Authorization 442 & 159 60.00 EAE Federal Communications
Commission
Equipment Radio Services
P.O. Box 358320
Pittsburg, PA 15251–5320.
b. Modification of Authorization 442 & 159 60.00 EAE Federal Communications
Commission
Equipment Radio Services
P.O. Box 358320
Pittsburg, PA 15251–5320.
c. Renewal of Station Authorization 405 & 159 60.00 EAE Federal
Communications Commission
Equipment Radio Services
P.O. Box 358320
Pittsburg, PA 15251–5320.
d. Assignment of Transfer of Control 702 & 159 or
703 & 159 60.00 EAE Federal Communications Commission
Equipment Radio Services
P.O. Box 358320
Pittsburg, PA 15251–5320.
e. Special Temporary Authority Corres & 159 60.00 EAE Federal Communications
Commission
Equipment Radio Services
P.O. Box 358320
Pittsburg, PA 15251–5320.
f. Additional fee required for any of the above applications that request
withholding from public inspection Corres & 159 60.00 EAE Federal
Communications Commission
Equipment Radio Services
P.O. Box 358320
Pittsburg, PA 15251–5320.
5. International Telecommunications 99 & 159 2.00 IAT Federal Communications
Commission
International Telecommunications Settlements
P.O. Box 358001
Pittsburgh, PA 15251–5001.
[ 71 FR 54219 , Sept. 14, 2006]
§ 1.1104 Schedule of charges for applications and other filings for media
services.
top
Those services designated with an asterisk in the Payment Type Code column
accept multiples if filing in the same post office box.
Service FCC form No. Fee amount Payment type code Address
1. Commercial TV Services:
a. New and Major Change Construction Permits (per application) (Electronic
Filing) 301 & 159 $4,005.00 MVT Federal Communications Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
b. Minor Change (per application) (Electronic Filing) 301 & 159 895.00 MPT
Federal Communications Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
c. Main Studio Request Corres & 159 895.00 MPT Federal Communications
Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
d. New License (per application) (Electronic Filing) 302–TV & 159
302–DTV & 159 270.00 MJT Federal Communications Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
e. License Renewal (per application) (Electronic Filing) 303–S & 159 160.00
MGT Federal Communications Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
f. License Assignment
(i) Long Form (Electronic Filing) 314 & 159 895.00 MPT* Federal
Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
(ii) Short Form (Electronic Filing) 316 & 159 130.00 MDT* Federal
Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
g. Transfer of Control
(i) Long Form (Electronic Filing) 315 & 159 895.00 MPT* Federal
Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
(ii) Short Form (Electronic Filing) 316 & 159 130.00 MDT* Federal
Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
h. Call Sign (Electronic Filing) 380 & 159 90.00 MBT Federal Communications
Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
i. Special Temporary Authority Corres & 159 160.00 MGT Federal
Communications Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
j. Petition for Rulemaking for New Community of License (Electronic Filing)
301 & 159
302–TV & 159 2,475.00 MRT Federal Communications Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
k. Ownership Report (Electronic Filing) 323 & 159
Corres & 159 60.00 MAT* Federal Communications Commission
Media Services
P.O. Box 358180
Pittsburgh, PA 15251–5180.
2. Commercial AM Radio Stations:
a. New or Major Change Construction Permit (Electronic Filing) 301 & 159
3,565.00 MUR Federal Communications Commission
Media Services
P.O. Box 358190
Pittsburgh, PA 15251–5190.
b. Minor Change (per application) (Electronic Filing) 301 & 159 895.00 MPR
Federal Communications Commission
Media Services
P.O. Box 358190
Pittsburgh, PA 15251–5190.
c. Main Studio Request (per request) Corres & 159 895.00 MPR Federal
Communications Commission
Media Services
P.O. Box 358190
Pittsburgh, PA 15251–5190.
d. New License (per application) (Electronic Filing) 302–AM & 159 585.00 MMR
Federal Communications Commission
Media Services
P.O. Box 358190
Pittsburgh, PA 15251–5190.
e. AM Directional Antenna (per application) (Electronic Filing) 302–AM & 159
675.00 MOR Federal Communications Commission
Media Services
P.O. Box 358190
Pittsburgh, PA 15251–5190.
f. AM Remote Control (per application) (Electronic Filing) 301 & 159 60.00
MAR Federal Communications Commission
Media Services
P.O. Box 358190
Pittsburgh, PA 15251–5190.
g. License Renewal (per application) (Electronic Filing) 303–S & 159 160.00
MGR Federal Communications Commission
Media Services
P.O. Box 358190
Pittsburgh, PA 15251–5190.
h. License Assignment
(i) Long Form (Electronic Filing) 314 & 159 895.00 MPR* Federal
Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
(ii) Short Form (Electronic Filing) 316 & 159 130.00 MDR* Federal
Communications Commission
Mass Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
i. Transfer of Control
(i) Long Form (Electronic Filing) 315 & 159 895.00 MPR* Federal
Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
(ii) Short Form (Electronic Filing) 316 & 159 130.00 MDR* Federal
Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
j. Call Sign (Electronic Filing) 380 & 159 90.00 MBR Federal Communications
Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
k. Special Temporary Authority Corres & 159 160.00 MGR Federal
Communications Commission
Media Services
P.O. Box 358190
Pittsburgh, PA 15251–5190.
l. Ownership Report (Electronic Filing) 323 & 159 or Corres & 159 60.00 MAR
Federal Communications Commission
Media Services
P.O. Box 358180
Pittsburgh, PA 15251–5180.
3. Commercial FM Radio Stations:
a. New or Major Change Construction Permit (Electronic Filing) 301 & 159
3,210.00 MTR Federal Communications Commission
Media Services
P.O. Box 358195
Pittsburgh, PA 15251–5195.
b. Minor Change (Electronic Filing) 301 & 159 895.00 MPR Federal
Communications Commission
Mass Media Services
P.O. Box 358195
Pittsburgh, PA 15251–5195.
c. Main Studio Request (per request) Corres & 159 895.00 MPR Federal
Communications Commission
Media Services
P.O. Box 358195
Pittsburgh, PA 15251–5195.
d. New License (Electronic Filing) 302–FM & 159 185.00 MHR Federal
Communications Commission
Media Services
P.O. Box 358195
Pittsburgh, PA 15251–5195.
e. FM Directional Antenna (Electronic Filing) 302–FM & 159 565.00 MLR
Federal Communications Commission
Media Services
P.O. Box 358195
Pittsburgh, PA 15251–5195.
f. License Renewal (per application) (Electronic Filing) 303–S & 159 160.00
MGR Federal Communications Commission
Media Services
P.O. Box 358190
Pittsburgh, PA 15251–5190.
g. License Assignment
(i) Long Form (Electronic Filing) 314 & 159 895.00 MPR* Federal
Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
(ii) Short Form (Electronic Filing) 316 & 159 130.00 MDR* Federal
Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
h. Transfer of Control
(i) Long Form (Electronic Filing) 315 & 159 895.00 MPR* Federal
Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
(ii) Short Form (Electronic Filing) 316 & 159 130.00 MDR* Federal
Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
i. Call Sign (Electronic Filing) 380 & 159 90.00 MBR Federal Communications
Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
j. Special Temporary Authority Corres & 159 160.00 MGR Federal
Communications Commission
Media Services
P.O. Box 358195
Pittsburgh, PA 15251–5195.
k. Petition for Rulemaking for New Community of License or Higher Class
Channel (Electronic Filing) 301 & 159 or 302–FM & 159 2,475.00 MRR Federal
Communications Commission
Media Services
P.O. Box 358195
Pittsburgh, PA 15251–5195.
l. Ownership Report (Electronic Filing) 323 & 159 or Corres & 159 60.00 MAR
Federal Communications Commission
Media Services
P.O. Box 358180
Pittsburgh, PA 15251–5180.
4. FM Translators:
a. New or Major Change Construction Permit (Electronic Filing) 349 & 159
675.00 MOF Federal Communications Commission
Media Services
P.O. Box 358200
Pittsburgh, PA 15251–5200.
b. New License (Electronic Filing) 350 & 159 135.00 MEF Federal
Communications Commission
Media Services
P.O. Box 358200
Pittsburgh, PA 15251–5200.
c. License Renewal (Electronic Filing) 303–S & 159 60.00 MAF Federal
Communications Commission
Media Services
P.O. Box 358190
Pittsburgh, PA 15251–5190.
d. Special Temporary Authority Corres & 159 160.00 MGF Federal
Communications Commission
Media Services
P.O. Box 358200
Pittsburgh, PA 15251–5200.
e. License Assignment (Electronic Filing) 345 & 159 314 & 159 316 & 159
130.00 MDF* Federal Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
f. Transfer of Control (Electronic Filing) 345 & 159 315 & 159 316 & 159
130.00 MDF* Federal Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
5. TV Translators and LPTV Stations:
a. New or Major Change Construction Permit (per application) (Electronic
Filing) 346 & 159 675.00 MOL Federal Communications Commission
Media Services
P.O. Box 358185
Pittsburgh, PA 15251–5185.
b. New License (per application) (Electronic Filing) 347 & 159 135.00 MEL
Federal Communications Commission
Media Services
P.O. Box 358185
Pittsburgh, PA 15251–5185.
c. License Renewal (Electronic Filing) 303–S & 159 60.00 MAL* Federal
Communications Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
d. Special Temporary Authority Corres & 159 160.00 MGL Federal
Communications Commission
Media Services
P.O. Box 358185
Pittsburgh, PA 15251–5185.
e. License Assignment (Electronic Filing) 345 & 159 314 & 159 316 & 159
130.00 MDL* Federal Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
f. Transfer of Control (Electronic Filing) 345 & 159 315 & 159 316 & 159
130.00 MDL* Federal Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
g. Call Sign (Electronic Filing) 380 & 159 90.00 MBT Federal Communications
Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
6. FM Booster Stations:
a. New or Major Change Construction Permit (Electronic Filing) 349 & 159
675.00 MOF Federal Communications Commission
Media Services
P.O. Box 358200
Pittsburgh, PA 15251–5200.
b. New License (Electronic Filing) 350 & 159 135.00 MEF Federal
Communications Commission
Media Services
P.O. Box 358200
Pittsburgh, PA 15251–5200.
c. Special Temporary Authority Corres & 159 160.00 MGF Federal
Communications Commission
Media Services
P.O. Box 358200
Pittsburgh, PA 15251–5200.
7. TV Booster Stations:
a. New or Major Change (Electronic Filing) 346 & 159 675.00 MOF Federal
Communications Commission
Media Services
P.O. Box 358185
Pittsburgh, PA 15251–5185.
b. New License (Electronic Filing) 347 & 159 135.00 MEF Federal
Communications Commission
Media Services
P.O. Box 358185
Pittsburgh, PA 15251–5185.
c. Special Temporary Authority Corres & 159 160.00 MGF Federal
Communications Commission
Media Services
P.O. Box 358185
Pittsburgh, PA 15251–5185.
8. Class A TV Services:
a. New and Major Change Construction Permits (per application) (Electronic
Filing) 301–CA & 159 4,005.00 MVT Federal Communications Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
b. New License (per application) (Electronic Filing) 302–CA & 159 270.00 MJT
Federal Communications Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
c. License Renewal (per application) (Electronic Filing) 303–S & 159 160.00
MGT Federal Communications Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
d. Special Temporary Authority Corres & 159 160.00 MGT Federal
Communications Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
e. License Assignment
(i) Long Form (Electronic Filing) 314 & 159 895.00 MPT* Federal
Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
(ii) Short Form (Electronic Filing) 316 & 159 130.00 MDT* Federal
Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
f. Transfer of Control
(i) Long Form (Electronic Filing) 315 & 159 895.00 MPT* Federal
Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
(ii) Short Form (Electronic Filing) 316 & 159 130.00 MDT* Federal
Communications Commission
Media Services
P.O. Box 358350
Pittsburgh, PA 15251–5350.
g. Main Studio Request Corres & 159 895.00 MPT Federal Communications
Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
h. Call Sign (Electronic Filing) 380 & 159 90.00 MBT Federal Communications
Commission
Media Services
P.O. Box 358165
Pittsburgh, PA 15251–5165.
9. Cable Television Services:
a. CARS License 327 & 159 245.00 TIC Federal Communications Commission
Media Services
P.O. Box 358205
Pittsburgh, PA 15215–5205.
b. CARS Modifications 327 & 159 245.00 TIC Federal Communications Commission
Media Services
P.O. Box 358205
Pittsburgh, PA 15215–5205.
c. CARS License Renewal 327 & 159 245.00 TIC Federal Communications
Commission
Media Services
P.O. Box 358205
Pittsburgh, PA 15215–5205.
d. CARS License Assignment 327 & 159 245.00 TIC Federal Communications
Commission
Media Services
P.O. Box 358205
Pittsburgh, PA 15215–5205.
e. CARS Transfer of Control 327 & 159 245.00 TIC Federal Communications
Commission
Media Services
P.O. Box 358205
Pittsburgh, PA 15215–5205.
f. Special Temporary Authority Corres & 159 160.00 TGC Federal
Communications Commission
Media Services
P.O. Box 358205
Pittsburgh, PA 15215–5205.
g. Cable Special Relief Petition Corres & 159 1,250.00 TQC Federal
Communications Commission
Media Services
P.O. Box 358205
Pittsburgh, PA 15215–5205.
h. Cable Community Registration (Electronic Filing) 321 & 159 60.00 TAC
Federal Communications Commission
Media Services
P.O. Box 358205
Pittsburgh, PA 15215–5205.
i. Aeronautical Frequency Usage Notifications (Electronic Filing) 321 & 159
60.00 TAC Federal Communications Commission
Media Services
P.O. Box 358205
Pittsburgh, PA 15215–5205.
[ 71 FR 54221 , Sept. 14, 2006]
§ 1.1105 Schedule of charges for applications and other filings for the
wireline competition services.
top
Service FCC form No. Fee amount Payment type code Address
1. Communication Assistance for Law Enforcement (CALEA):
Petitions Corres & 159 $5,605.00 CLEA Federal Communications Commission
Wireline Competition Bureau—IA&TD CALEA
P.O. Box 358140
Pittsburgh, PA 15251–5140.
2. Domestic 214 Applications:
a. Domestic Cable Construction Corres & 159 $965.00 CUT Federal
Communications Commission
Wireline Competition Bureau—CPD—214 Appls.
P.O. Box 358145
Pittsburgh, PA 15251–5145.
b. Other Corres & 159 $965.00 CUT Federal Communications Commission
Wireline Competition Bureau—CPD—214 Appls.
P.O. Box 358145
Pittsburgh, PA 15251–5145.
3. Tariff Filings:
a. Filing Fees (per transmittal or cover letter) Corres & 159 $775.00 CQK
Federal Communications Commission
Wireline Competition Bureau—PPD Tariffs Filings
P.O. Box 358150
Pittsburgh, PA 15251–5150.
b. Application for Special Permission Filing (request for waiver of any rule
in Part 61 of the Commission's Rules) (per request) Corres & 159 $775.00 CQK
Federal Communications Commission
Wireline Competition Bureau—PPD Tariffs Filings
P.O. Box 358150
Pittsburgh, PA 15251–5150.
c. Waiver of Part 69 Tariff Rules (per request) Corres & 159 $775.00 CQK
Federal Communications Commission
Wireline Competition Bureau—PPD Tariffs Filings
P.O. Box 358150
Pittsburgh, PA 15251–5150.
4. Accounting:
a. Review of Depreciation Update Study (single state) Corres & 159
$32,680.00 BKA Federal Communications Commission
Wireline Competition Bureau—PPD—Accounting Rule Depreciation
P.O. Box 358140
Pittsburgh, PA 15251–5140.
(i) Each Additional State Corres & 159 $1,075.00 CVA Federal Communications
Commission
Wireline Competition Bureau—PPD—Accounting Rule Depreciation
P.O. Box 358140
Pittsburgh, PA 15251–5140.
b. Petition for Waiver (per petition)
Waiver of Part 69 Accounting Rules & Part 32 Accounting Rules, Part 36
Separation Rules, Part 43 Reporting Requirements, Part 64 Allocation of
Costs Rules, Part 65 Rate of Return & Rate Base Rules Corres & 159 $7,365.00
BEA Federal Communications Commission
Wireline Competition Services—PPD Tariffs Accounting Rule Waiver
P.O. Box 358140
Pittsburgh, PA 15251–5140.
[ 71 FR 54227 , Sept. 14, 2006]
§ 1.1106 Schedule of charges for applications and other filings for the
enforcement services.
top
Service FCC form No. Fee amount Payment type code Address
1. Formal Complaints: Corres & 159 $190.00 CIZ Federal Communications
Commission
Enforcement
P.O. Box 358120
Pittsburgh, PA 15251–5120.
2. Accounting and Audits:
a. Field Audit N/A $98,400.00 BMA Carriers will be billed.
b. Review of Attest Audit N/A $53,710.00 BLA Carriers will be billed.
3. Development and Review of Agreed upon—Procedures Engagement: Corres & 159
$53,710.00 BLA Federal Communications Commission
Enforcement
P.O. Box 358125
Pittsburgh, PA 15251–5125.
4. Pole Attachment Complaint: Corres & 159 $240.00 TPC Federal
Communications Commission
Enforcement
P.O .Box 358110
Pittsburgh, PA 15215–5110.
[ 71 FR 54228 , Sept. 14, 2006]
§ 1.1107 Schedule of charges for applications and other filings for the
international services.
top
Service FCC form No. Fee amount Payment type code Address
1. International Fixed Public Radio(Public & Control Stations):
a. Initial Construction Permit (per station) 407 & 159 $810.00 CSN Federal
Communications Commission
International Bureau—Fixed Public Radio
P.O. Box 358160
Pittsburgh, PA 15251–5160.
b. Assignment or Transfer (per Application) 702 & 159 or 704 & 159 810.00
CSN Federal Communications Commission
International Bureau—Fixed Public Radio
P.O. Box 358160
Pittsburgh, PA 15251–5160.
c. Renewal (per license) 405 & 159 585.00 CON Federal Communications
Commission
International Bureau—Fixed Public Radio
P.O. Box 358160
Pittsburgh, PA 15251–5160.
d. Modification (per station) 403 & 159 585.00 CON Federal Communications
Commission
International Bureau—Fixed Public Radio
P.O. Box 358160
Pittsburgh, PA 15251–5160.
e. Extension of Construction Authorization (per station) 701 & 159 295.00
CKN Federal Communications Commission
International Bureau—Fixed Public Radio
P.O. Box 358160
Pittsburgh, PA 15251–5160.
f. Special Temporary Authority or request for Waiver (per request) Corres &
159 295.00 CKN Federal Communications Commission
International Bureau—Fixed Public Radio
P.O. Box 358160
Pittsburgh, PA 15251–5160.
2. Section 214 Applications:
a. Overseas Cable Construction Corres & 159 14, 415.00 BIT Federal
Communications Commission
International Bureau—Policy
P.O. Box 358115
Pittsburgh, PA 15251–5115.
b. Cable Landing License
(i) Common Carrier Corres & 159 1,620.00 CXT Federal Communications
Commission
International Bureau—Policy
P.O. Box 358115
Pittsburgh, PA 15251–5115.
(ii) Non-Common Carrier Corres & 159 16,035.00 BJT Federal Communications
Commission
International Bureau—Policy
P.O. Box 358115
Pittsburgh, PA 15251–5115.
c. All other International 214 Applications Corres & 159 965.00 CUT Federal
Communications Commission
International Bureau—Policy
P.O. Box 358115
Pittsburgh, PA 15251–5115.
d. Special Temporary Authority (all services) Corres & 159 965.00 CUT
Federal Communications Commission
International Bureau—Policy
P.O. Box 358115
Pittsburgh, PA 15251–5115.
e. Assignments or transfers (all services) Corres & 159 965.00 CUT Federal
Communications Commission
International Bureau—Policy
P.O. Box 358115
Pittsburgh, PA 15251–5115.
3. Fixed Satellite Transmit/Receive Earth Stations:
a. Initial Application (per station) 312 Main & Schedule B & 159 2,410.00
BAX Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
b. Modification of License (per station) 312 Main & Schedule B & 159 170.00
CGX Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
c. Assignment or Transfer
(i) First station 312 Main & Schedule A & 159 475.00 CNX Federal
Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
(ii) Each Additional Station Attachment to 312—Schedule A 160.00 CFX Federal
Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
d. Renewal of License (per station) 312–R & 159 170.00 CGX Federal
Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
e. Special Temporary Authority (per request) 312 Main & Corres & 159 170.00
CGX Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
f. Amendment of Pending Application (per station) 312 Main & Schedule B &
159 170.00 CGX Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
g. Extension of Construction Permit (modification) (per station) 312 Main &
159 170.00 CGX Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
4. Fixed Satellite transmit/receive Earth Stations (2 meters or less
operating in the 4/6 GHz frequency band):
a. Lead Application 312 Main & Schedule B & 159 5,340.00 BDS Federal
Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
b. Routine Application (per station) 312 Main & Schedule B & 159 60.00 CAS
Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
c. Modification of License (per station) 312 Main & Schedule B & 159 170.00
CGS Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
d. Assignment or Transfer
(i) First Station 312 Main & Schedule A & 159 475.00 CNS Federal
Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
(ii) Each Additional Station Attachment to 312—Schedule A 60.00 CAS Federal
Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
e. Renewal of License (per station) 312–R & 159 170.00 CGS Federal
Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
f. Special Temporary Authority (per request) 312 Main & 159 170.00 CGS
Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
g. Amendment of Pending Application (per station) 312 Main & Schedule A or B
& 159 170.00 CGS Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
h. Extension of Construction Permit (modification) (per station) 312 & 159
170.00 CGS Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
5. Receive Only Earth Stations:
a. Initial Applications for Registration or License (per station) 312 Main &
Schedule B & 159 365.00 CMO Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
b. Modification of License or Registration (per station) 312 Main & Schedule
B & 159 170.00 CGO Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
c. Assignment or Transfer
(i) First Station 312 Main & Schedule A & 159 475.00 CNO Federal
Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
(ii) Each Additional Station Attachment to 312—Schedule A 160.00 CFO Federal
Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
d. Renewal of License (per station) 312–R & 159 170.00 CGO Federal
Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
e. Amendment of Pending Application (per station) 312 Main & Schedule A or B
& 159 170.00 CGO Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
f. Extension of Construction Permit (modification) (per station) 312 Main &
159 170.00 CGO Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
g. Waivers (per request) Corres & 159 170.00 CGO Federal Communications
Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
6. Fixed Satellite Very Small Aperture Terminal (VSAT) Systems:
a. Initial Application (per station) 312 Main & Schedule B & 159 8,895.00
BGV Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
b. Modification of License (per system) 312 Main & Schedule B & 159 170.00
CGV Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
c. Assignment or Transfer of System 312 Main & Schedule A & 159 2,380.00 CZV
Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
d. Renewal of License (per system) 312–R & 159 170.00 CGV Federal
Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
e. Special Temporary Authority (per request) 312 & 159 170.00 CGV Federal
Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
f. Amendment of Pending Application (per system) 312 Main & Schedule A or B
& 159 170.00 CGV Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
g. Extension of Construction Permit (modification) (per system) 312 & 159
170.00 CGV Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
7. Mobile Satellite Earth Stations
a. Initial Applications of Blanket Authorization 312 Main & Schedule B & 159
8,895.00 BGB Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
b. Initial Application for Individual Earth Station 312 Main & Schedule B &
159 2,135.00 CYB Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
c. Modication of License (per system) 312 Main & Schedule B & 159 170.00 CGB
Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
d. Assignment or Transfer (per system) 312 Main & Schedule A & 159 2,380.00
CZB Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
e. Renewal of License (per system) 312–R & 159 170.00 CGB Federal
Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
f. Special Temporary Authority (per request) 312 & 159 170.00 CGB Federal
CommunicationS Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
g. Amendment of Pending Application (per system) 312 Main & Schedule B & 159
170.00 CGB Federal CommunicationS Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
h. Extension of Construction Permit (modification) (per system) 312 & 159
170.00 CGB Federal Communications Commission
International Bureau—Earth Stations
P.O. Box 358160
Pittsburgh, PA 15251–5160.
8. Space Stations (Geostationary):
a. Application for Authority to Launch & Operate (per satellite)
(i) Initial Application 312 Main & Schedule S & 159 110,580.00 BNY Federal
Communications Commission
International Bureau—Satellites
P.O. Box 358210
Pittsburgh, PA 15251–5210.
(ii) Replacement Satellite 312 Main & Schedule S & 159 110,580.00 BNY
b. Assignment or Transfer (per satellite) 312 Main & Schedule A & 159
7,900.00 BFY Federal Communications Commission
International Bureau—Satellites
P.O. Box 358210
Pittsburgh, PA 15251–5210.
c. Modification (per satellite) 312 Main & Schedule S (if needed) & 159
7,900.00 BFY Federal Communications Commission
International Bureau—Satellites
P.O. Box 358210
Pittsburgh, PA 15251–5210.
d. Special Temporary Authority (per satellite) 312 & 159 790.00 CRY Federal
Communications Commission
International Bureau—Satellites
P.O. Box 358210
Pittsburgh, PA 15251–5210.
e. Amendment of Pending Application (per satellite) 312 Main & Schedule S
(if needed) & 159 1,580.00 CWY Federal Communications Commission
International Bureau—Satellites
P.O. Box 358210
Pittsburgh, PA 15251–5210.
f. Extension of Launch Authority (per satellite) 312 Main & Corres & 159
790.00 CRY Federal Communications Commission
International Bureau—Satellites
P.O. Box 358210
Pittsburgh, PA 15251–5210.
9. Space Stations (NGSO)
a. Application for Authority to Launch & Operate (per system of technically
identical satellites) satellites 312 Main & Schedule S & 159 380,835.00 CLW
Federal Communications Commission
International Bureau—Satellites
P.O. Box 358210
Pittsburgh, PA 15251–5210.
b. Assignment or Transfer (per system) 312 Main & Schedule A & 159 10,885.00
CZW Federal Communications Commission
International Bureau—Satellites
P.O. Box 358210
Pittsburgh, PA 15251–5210.
c. Modification (per system) 312 Main & Schedule S (if needed) & 159
27,205.00 CGW Federal Communications Commission
International Bureau—Satellites
P.O. Box 358210
Pittsburgh, PA 15251–5210.
d. Special Temporary Authority (per request) Corres & 159 2,725.00 CXW
Federal Communications Commission
International Bureau—Satellites
P.O. Box 358210
Pittsburgh, PA 15251–5210.
e. Amendment of Pending Application (per request) 312 Main & Schedule S &
159 5,445.00 CAW Federal Communications Commission
International Bureau—Satellites
P.O. Box 358210
Pittsburgh, PA 15251–5210.
f. Extension of Launch Authority (per system) 312 Main & 159 2,725.00 CXW
Federal Communications Commission
International Bureau—Satellites
P.O. Box 358210
Pittsburgh, PA 15251–5210.
10. Direct Boradcast Satellites
a. Authorization to Constructor Major Modification (per satellite) 312 Main
& Schedule S & 159 3,210.00 MTD Federal Communication Commission
International Bureau—Satellites
P.O. Box 358210
Pittsburgh, PA 15251–5210.
b. Construction Permit and Launch Authority (per satellite) 312 Main &
Schedule S & 159 31,140.00 MXD Federal Communications Commission
International Bureau—Satellites
P.O. Box 358210
Pittsburgh, PA 15251–5210.
c. License to Operate (per satellite) 312 Main & Schedule S & 159 31,140.00
MXD Federal Communications Commission
International Bureau—Satellites
P.O. Box 358210
Pittsburgh, PA 15251–5210.
d. Special Temporary Authority (per satellite) 312 Main & 159 160.00 MGD
Federal Communications Commission
International Bureau—Satellites
P.O. Box 358210
Pittsburgh, PA 15251–5210.
11. International Broadcast Stations
a. New Station & Facilities Change Construction Permit (per application) 309
& 159 2,695.00 MSN Federal Communications Commission
International Bureau
P.O. Box 358175
Pittsburgh, PA 15251–5175.
b. New License (per application) 310 & 159 610.00 MNN Federal Communications
Commission application)
International Bureau
P.O. Box 358175
Pittsburgh, PA 15251–5175.
c. License Renewal (per application) 311 & 159 155.00 MFN Federal
Communications Commission
International Bureau
P.O. Box 358175
Pittsburgh, PA 15251–5175.
d. License Assignment or Transfer of Control (per station license) 314 & 159
or
315 & 159 or
316 & 159 95.00 MCN Federal Communications Commission
International Bureau
P.O. Box 358175
Pittsburgh, PA 15251–5175.
e. Frequency Assignment & Coordination (per frequency hour) Corres & 159
60.00 MAN Federal Communications Commission
International Bureau
P.O. Box 358175
Pittsburgh, PA 15251–5175.
f. Special Temporary Authorization (per application) Corres & 159 160.00 MGN
Federal Communications Commission
International Bureau
P.O. Box 358175
Pittsburgh, PA 15251–5175.
12. Permit to Deliver Programs to Foreign Broadcast Stations(per
application):
a. Commercial Television Stations 308 & 159 90.00 MBT Federal Communications
Commission
International Bureau
P.O. Box 358175
Pittsburgh, PA 15251–5175.
b. Commercial AM or FM Radio Stations 308 & 159 90.00 MBR Federal
Communications Commission
International Bureau
P.O. Box 358175
Pittsburgh, PA 15251–5175.
13. Recognized Operating Agency(per application) Corres & 159 965.00 CUG
Federal Communications Commission
International Bureau
P.O. Box 358115
Pittsburgh, PA 15251–5115.
[ 71 FR 54228 , Sept. 14, 2006]
§ 1.1108 Attachment of charges.
top
The charges required to accompany a request for the Commission regulatory
services listed in §§1.1102 through 1.1107 of this subpart will not be
refundable to the applicant irrespective of the Commission's disposition of
that request. Return or refund of charges will be made in certain limited
instances as set out at §1.1113 of this subpart.
[ 65 FR 49762 , Aug. 15, 2000]
§ 1.1109 Payment of charges.
top
(a) Electronic fee payments do not require the use of a FCC Form 159,
Remittance Advice. An electronic fee payment must be made on or before the
day the application and appropriate processing form are filed.
(b) The schedule of fees for applications and other filings lists those
applications and other filings that must be accompanied by a FCC Form 159,
Remittance Advice. A separate FCC Form 159 will not be required once the
information requirements of that form (payor information) is incorporated
into the underlying application form.
(c) Applications and other filings that are not submitted in accordance with
these instructions will be returned as unprocessable.
Note: This requirement for the simultaneous submission of fees forms with
applications or other filings does not apply to the payment of fees for
which the Commission has established a billing process. See §1.1119 of this
subpart.
(d) Applications returned to applicants for additional information or
corrections will not require an additional fee when resubmitted, unless the
additional information results in an increase of the original fee amount.
Those applications not requiring an additional fee should be resubmitted
directly to the Bureau/Office requesting the additional information. The
original fee will be forfeited if the additional information or corrections
are not resubmitted to the appropriate Bureau/Office by the prescribed
deadline. A forfeited application fee will not be refunded. If an additional
fee is required, the original fee will be returned and the application must
be resubmitted with a new remittance in the amount of the required fee to
the Commission's lockbox bank. Applicants should attach a copy of the
Commission's request for additional or corrected information to their
resubmission.
(1) If the Bureau/Office staff discovers within 30 days after the
resubmission that the required fee was not submitted, the application will
be dismissed.
(2) If after 30 days the Bureau/Office staff discovers the required fee has
not been paid, the application will be retained and a 25 percent late fee
will be assessed on the deficient amount even if the Commission has
completed its action on the application. Any Commission actions taken prior
to timely payment of these charges are contingent and subject to recession.
(e) Should the staff change the status of an application, resulting in an
increase in the fee due, the applicant will be billed for the remainder
under the conditions established by §1.1116(b) of the rules.
Note: Due to the statutory requirements applicable to tariff filings, the
procedures for handling tariff filings may vary from the procedures set out
in the rules.
[ 52 FR 5289 , Feb. 20, 1987, as amended at 53 FR 40888 , Oct. 19, 1988; 55 FR 19171 , May 8, 1990. Redesignated and amended at 59 FR 30998 , June 16, 1994.
Redesignated at 60 FR 5326 , Jan. 27, 1995, as amended at 67 FR 67337 , Nov.
5, 2002]
§ 1.1110 Form of payment.
top
(a) Fee payments should be in the form of a check, bank draft, on money
order denominated in U.S. dollars and drawn on a United States financial
institution and made payable to the Federal Communications Commission or by
a Visa, MasterCard, American Express, or Discover credit card. No other
credit card is acceptable. Fees for applications and other filings paid by
credit card will not be accepted unless the credit card section of FCC Form
159 is completed in full. The Commission discourages applicants from
submitting cash and will not be responsible for cash sent through the mail.
Personal or corporate checks dated more than six months prior to their
submission to the Commission's lockbox bank and postdated checks will not be
accepted and will be returned as deficient. Third party checks (i.e., checks
with a third party as maker or endorser) will not be accepted.
(1) Specific procedures for electronic payments are announced in
Bureau/Office fee filing guides.
(2) It is the responsibility of the payer to insure that any electronic
payment is made in the manner required by the Commission. Failure to comply
with the Commission's procedures will result in the return of the
application or other filing and the fee payment.
(3) Payments by wire transfer will be accepted; however, to insure proper
credit, applicants must follow the instructions set out in the appropriate
Bureau/Office fee filing guide.
(b) Applicants are required to submit one payment instrument (check, bank
draft or money order) and FCC Form 159 with each application or filing.
Multiple payment instruments for a single application or filing are not
permitted. Except that a separate Fee Form (FCC Form 159) will not be
required once the information requirements of that form (the Fee Code, fee
amount, and total fee remitted) are incorporated into the underlying
application form.
(c) The Commission may accept multiple money orders in payment of a fee for
a single application where the fee exceeds the maximum amount for a money
order established by the issuing agency and the use of multiple money orders
is the only practical method available for fee payment.
(d) The Commission may require payment of fees with a cashier's check upon
notification to an applicant or filer or prospective group of applicants
under the conditions set forth below in paragraphs (d) (1) and (2) of this
section.
(1) Payment by cashier's check may be required when a person or organization
has made payment, on one or more occasions with a payment instrument on
which the Commission does not receive final payment and such failure is not
excused by bank error.
(2) The Commission will notify the party in writing that future payments
must be made by cashier's check until further notice. If, subsequent to such
notice, payment is not made by cashier's check, the party's payment will not
be accepted and its application or other filing will be returned.
(e) All fees collected will be paid into the general fund of the United
States Treasury in accordance with Pub. L. 99–272.
(f) The Commission will furnish a stamped receipt of an application only
upon request that complies with the following instructions. In order to
obtain a stamped receipt for an application (or other filing), the
application package must include a copy of the first page of the
application, clearly marked “copy”, submitted expressly for the purpose of
serving as a receipt of the filing. The copy should be the top document in
the package. The copy will be date-stamped immediately and provided to the
bearer of the submission, if hand delivered. For submissions by mail, the
receipt copy will be provided through return mail if the filer has attached
to the receipt copy a stamped self-addressed envelope of sufficient size to
contain the date stamped copy of the application. No remittance receipt
copies will be furnished.
[ 52 FR 5289 , Feb. 20, 1987; 52 FR 38232 , Oct. 15, 1987, as amended at 53 FR 40888 , Oct. 19, 1988; 55 FR 19171 , May 8, 1990. Redesignated at 59 FR 30998 ,
June 16, 1994, as amended at 59 FR 30999 , June 16, 1994. Redesignated at 60 FR 5326 , Jan. 27, 1995, as amended at 65 FR 49762 , Aug. 15, 2000; 67 FR 46303 , July 12, 2002; 67 FR 67337 , Nov. 5, 2002]
§ 1.1111 Filing locations.
top
(a) Except as noted in this section, applications and other filings, with
attached fees and FCC Form 159, must be submitted to the locations and
addresses set forth in §§1.1102 through 1.1107.
(1) Tariff filings shall be filed with the Secretary, Federal Communications
Commission, Washington, DC 20554. On the same day, the filer should submit a
copy of the cover letter, the FCC Form 159, and the appropriate fee to the
Commission's lockbox bank at the address established in §1.1105.
(2) Bills for collection will be paid at the Commission's lockbox bank at
the address of the appropriate service as established in §§1.1102 through
1.1107, as set forth on the bill sent by the Commission. Payments must be
accompanied by the bill sent by the Commission. Payments must be accompanied
by the bill to ensure proper credit.
(3) Petitions for reconsideration or applications for review of fee
decisions pursuant to §1.1117(b) of this subpart must be accompanied by the
required fee for the application or other filing being considered or
reviewed.
(4) Applicants claiming an exemption from a fee requirement for an
application or other filing under 47 U.S.C. 158(d)(1) or §1.1114 of this
subpart shall file their applications in the appropriate location as set
forth in the rules for the service for which they are applying, except that
request for waiver accompanied by a tentative fee payment should be filed at
the Commission's lockbox bank at the address for the appropriate service set
forth in §§1.1102 through 1.1107.
(b) Except as provided for in paragraph (c) of this section, all materials
must be submitted as one package. The Commission will not take
responsibility for matching fees, forms and applications submitted at
different times or locations. Materials submitted at other than the location
and address required by §0.401(b) and paragraph (a) of this section will be
returned to the applicant or filer.
(c) Fees for applications and other filings pertaining to the Wireless Radio
Services that are submitted electronically via ULS may be paid
electronically or sent to the Commission's lock box bank manually. When
paying manually, applicants must include the application file number
(assigned by the ULS electronic filing system on FCC Form 159) and submit
such number with the payment in order for the Commission to verify that the
payment was made. Manual payments must be received no later than ten (10)
days after receipt of the application on ULS or the application will be
dismissed. Payment received more than ten (10) days after electronic filing
of an application on a Bureau/Office electronic filing system ( e.g. , ULS)
will be forfeited ( see §§1.934 and 1.1109.)
(d) Fees for applications and other filings pertaining to the Multichannel
Video and Cable Television Service (MVCTS) and the Cable Television Relay
Service (CARS) that are submitted electronically via the Cable Operations
and Licensing System (COALS) may be paid electronically or sent to the
Commission's lock box bank manually. When paying manually, applicants must
include the FCC Form 159 generated by COALS (pre-filled with the transaction
confirmation number) and completed with the necessary additional payment
information to allow the Commission to verify that payment was made. Manual
payments must be received no later than ten (10) days after receipt of the
application or filing in COALS or the application or filing will be
dismissed.
[ 55 FR 19171 , May 8, 1990. Redesignated at 59 FR 30998 , June 16, 1994, as
amended at 59 FR 30999 , June 16, 1994. Redesignated at 60 FR 5326 , Jan. 27,
1995, as amended at 63 FR 68941 , Dec. 14, 1998; 65 FR 49762 , Aug. 15, 2000;
68 FR 27001 , May 19, 2003; 69 FR 41176 , July 7, 2004]
§ 1.1112 Conditionality of Commission or staff authorizations.
top
(a) Any instrument of authorization granted by the Commission, or by its
staff under delegated authority, will be conditioned upon final payment of
the applicable fee or delinquent fees and timely payment of bills issued by
the Commission. As applied to checks, bank drafts and money orders, final
payment shall mean receipt by the Treasury of funds cleared by the financial
institution on which the check, bank draft or money order is drawn.
(1) If, prior to a grant of an instrument of authorization, the Commission
is notified that final payment has not been made, the application or filing
will be:
(i) Dismissed and returned to the applicant;
(ii) Shall lose its place in the processing line;
(iii) And will not be accorded nunc pro tunc treatment if resubmitted after
the relevant filing deadline.
(2) If, subsequent to a grant of an instrument of authorization, the
Commission is notified that final payment has not been made, the Commission
will:
(i) Automatically rescind that instrument of authorization for failure to
meet the condition imposed by this subsection; and
(ii) Notify the grantee of this action; and
(iii) Not permit nunc pro tunc treatment for the resubmission of the
application or filing if the relevant deadline has expired.
(3) Upon receipt of a notification of rescision of the authorization, the
grantee will immediately cease operations initiated pursuant to the
authorization.
(b) In those instances where the Commission has granted a request for
deferred payment of a fee or issued a bill payable at a future date, further
processing of the application or filing, or the grant of authority, shall be
conditioned upon final payment of the fee, plus other required payments for
late payments, by the date prescribed by the deferral decision or bill.
Failure to comply with the terms of the deferral decision or bill shall
result in the automatic dismissal of the submission or rescision of the
Commission authorization for failure to meet the condition imposed by this
subpart. The Commission reserves the right to return payments received after
the date established on the bill and exercise the conditions attached to the
application. The Commission shall:
(1) Notify the grantee that the authorization has been rescinded;
(i) Upon such notification, the grantee will immediately cease operations
initiated pursuant to the authorization.
(2) Not permit nunc pro tunc treatment to applicants who attempt to refile
after the original deadline for the underlying submission.
(c) (1) Where an applicant is found to be delinquent in the payment of
application fees, the Commission will make a written request for the
delinquent fee, together with any penalties that may be due under this
subpart. Such request shall inform the applicant/filer that failure to pay
or make satisfactory payment arrangements will result in the Commission's
withholding action on, and/or as appropriate, dismissal of, any applications
or requests filed by the applicant. The staff shall also inform the
applicant of the procedures for seeking Commission review of the staff's fee
determination.
(2) If, after final determination that the fee is due or that the applicant
is delinquent in the payment of fees, and payment is not made in a timely
manner, the staff will withhold action on the application or filing until
payment or other satisfactory arrangement is made. If payment or
satisfactory arrangement is not made within 30 days of the date of the
original notification, the application will be dismissed.
[ 52 FR 5289 , Feb. 20, 1987, as amended at 55 FR 19171 , May 8, 1990.
Redesignated at 59 FR 30998 , June 16, 1994. Redesignated at 60 FR 5326 , Jan.
27, 1995, as amended at 69 FR 27847 , May 17, 2004]
§ 1.1113 Return or refund of charges.
top
(a) All refunds will be issued to the payer named in the appropriate block
of the FCC Form 159. The full amount of any fee submitted will be returned
or refunded, as appropriate, under the authority granted at §0.231.
(1) When no fee is required for the application or other filing. ( see
§1.1109).
(2) When the fee processing staff or bureau/office determines that an
insufficient fee has been submitted within 30 calendar days of receipt of
the application or filing and the application or filing is dismissed.
(3) When the application is filed by an applicant who cannot fulfill a
prescribed age requirement.
(4) When the Commission adopts new rules that nullify applications already
accepted for filing, or new law or treaty would render useless a grant or
other positive disposition of the application.
(5) When a waiver is granted in accordance with this subpart.
Note: Payments in excess of an application fee will be refunded only if the
overpayment is $10 or more.
(6) When an application for new or modified facilities is not timely filed
in accordance with the filing window as established by the Commission in a
public notice specifying the earliest and latest dates for filing such
applications.
(b) Comparative hearings are no longer required.
(c) Applicants in the Media Services for first-come, first-served
construction permits will be entitled to a refund of the fee, if, within
fifteen days of the issuance of a Public Notice, applicant indicates that
there is a previously filed pending application for the same vacant channel,
such applicant notifies the Commission that they no longer wish their
application to remain on file behind the first applicant and any other
applicants filed before his or her application, and the applicant
specifically requests a refund of the fee paid and dismissal of his or her
application.
(d) Applicants for space station licenses under the first-come, first served
procedure set forth in part 25 of this title will be entitled to a refund of
the fee if, before the Commission has placed the application on public
notice, the applicant notifies the Commission that it no longer wishes to
keep its application on file behind the licensee and any other applicants
who filed their applications before its application, and specifically
requests a refund of the fee and dismissal of its application.
[ 52 FR 5289 , Feb. 20, 1987, as amended at 53 FR 40889 , Oct. 19, 1988; 56 FR 795 , Jan. 9, 1991; 56 FR 56602 , Nov. 6, 1991. Redesignated at 59 FR 30998 ,
June 16, 1994. Redesignated at 60 FR 5326 , Jan. 27, 1995, as amended at 65 FR 49762 , Aug. 15, 2000; 67 FR 46303 , July 12, 2002; 67 FR 67337 , Nov. 5,
2002; 68 FR 51502 , Aug. 27, 2003; 69 FR 41177 , July 7, 2004; 71 54234, Sept.
14, 2006]
§ 1.1114 General exemptions to charges.
top
No fee established in 1.1102 through 1.1107 of this subpart, unless
otherwise qualified herein, shall be required for:
(a) Applications filed for the sole purpose of modifying an existing
authorization (or a pending application for authorization) in order to
comply with new or additional requirements of the Commission's rules or the
rules of another Federal agency. However, if the applicant also requests an
additional modification, renewal, or other action, the appropriate fee for
such additional request must accompany the application. Cases in which a fee
will be paid include applications by FM and TV licensees or permittees
seeking to upgrade channel after a rulemaking.
(b) Applicants in the Special Emergency Radio and Public Safety Radio
Services that are government entities or nonprofit entities. Applicants
claiming nonprofit status must include a current Internal Revenue Service
Determination Letter documenting this nonprofit status.
(c) Applicants, permittees or licensees of noncommercial educational (NCE)
broadcast stations in the FM or TV services, as well as AM applicants,
permittees or licensees operating in accordance with §73.503 of this
chapter.
(d) Applicants, permittees, or licensees qualifying under paragraph (c) of
this section requesting Commission authorization in any other mass media
radio service (except the international broadcast (HF) service) private
radio service, or common carrier radio communications service otherwise
requiring a fee, if the radio service is used in conjunction with the NCE
broadcast station on an NCE basis.
(e) Other applicants, permittees, or licensees providing, or proposing to
provide, an NCE or instructional service, but not qualifying under paragraph
(c) of this section, may be exempt from filing fees, or be entitled to a
refund, in the following circumstances.
(1) An applicant is exempt from filing fees if it is an organization that,
like the Public Broadcasting Service or National Public Radio, receives
funding directly or indirectly through the Public Broadcasting Fund, 47
U.S.C. 396(k), distributed by the Corporation for Public Broadcasting, where
the authorization requested will be used in conjunction with the
organization on an NCE basis;
(2) An applicant for a translator or low power television station that
proposes an NCE service will be entitled to a refund of fees paid for the
filing of the application when, after grant, it provides proof that it has
received funding for the construction of the station through the National
Telecommunications and Information Administration (NTIA) or other showings
as required by the Commission.
(3) An applicant that has qualified for a fee refund under paragraph (e)(2)
of this section and continues to operate as an NCE station is exempt from
fees for broadcast auxiliary stations (subparts D, E, and F of part 74) or
stations in the private radio or common carrier services where such
authorization is to be used in conjunction with the NCE translator or low
power station.
(4) An applicant that is the licensee in the Educational Broadband Service
(EBS) (formerly, Instructional Television Fixed Service (ITFS)) (parts 27
and 74, e.g., §§27.1200, et seq. , and 74.832(b), of this chapter) is exempt
from filing fees where the authorization requested will be used by the
applicant in conjunction with the provision of the EBS.
(f) Applicants, permittees or licensees who qualify as governmental
entities. For purposes of this exemption a governmental entity is defined as
any state, possession, city, county, town, village, municipal corporation or
similar political organization or subpart thereof controlled by publicly
elected or duly appointed public officials exercising sovereign direction
and control over their respective communities or programs.
(g) Applications for Restricted Radiotelephone Operator Permits where the
applicant intends to use the permit solely in conjunction with duties
performed at radio facilities qualifying for fee exemption under paragraphs
(c), (d), or (e) of this section.
Note: Applicants claiming exemptions under the terms of this subpart must
certify as to their eligibility for the exemption through a cover letter
accompanying the application or filing. This certification is not required
if the applicable FCC Form requests the information justifying the
exemption.
[ 52 FR 5289 , Feb. 20, 1987, as amended at 53 FR 40889 , Oct. 19, 1988; 55 FR 19172 , May 8, 1990; 56 FR 56602 , Nov. 6, 1991. Redesignated and amended at
59 FR 30998 , June 16, 1994. Redesignated at 60 FR 5326 , Jan. 27, 1995, as
amended at 65 FR 49762 , Aug. 15, 2000; 69 FR 41177 , July 7, 2004; 71 FR 54234 , Sept. 14, 2006]
§ 1.1115 Adjustments to charges.
top
(a) The Schedule of Charges established by §§1.1102 through 1.1107 of this
subpart shall be reviewed by the Commission on October 1, 1999 and every two
years thereafter, and adjustments made, if any, will be reflected in the
next publication of Schedule of Charges.
(1) The fees will be adjusted by the Commission to reflect the percentage
change in the Consumer Price Index for all Urban Consumers (CPI-U) from the
date of enactment of the authorizing legislation (December 19, 1989) to the
date of adjustment, and every two years thereafter, to reflect the
percentage change in the CPI-U in the period between the enactment date and
the adjustment date.
(2) Adjustments based upon the percentage change in the CPI-U will be
applied against the base fees as enacted or amended by Congress in the year
the fee was enacted or amended.
(b) Increases or decreases in charges will apply to all categories of fees
covered by this subpart. Individual fees will not be adjusted until the
increase or decrease, as determined by the net change in the CPI-U since the
date of enactment of the authorizing legislation, amounts to at least $5 in
the case of fees under $100, or 5% or more in the case of fees of $100 or
greater. All fees will be adjusted upward to the next $5 increment.
(c) Adjustments to fees made pursuant to these procedures will not be
subject to notice and comment rulemakings, nor will these decisions be
subject to petitions for reconsideration under §1.429 of the rules. Requests
for modifications will be limited to correction of arithmetical errors made
during an adjustment cycle.
[ 52 FR 5289 , Feb. 20, 1987, as amended at 53 FR 40889 , Oct. 19, 1988; 55 FR 19172 , May 8, 1990. Redesignated and amended at 59 FR 30998 , June 16, 1994.
Redesignated at 60 FR 5326 , Jan. 27, 1995, as amended at 65 FR 49762 , Aug.
15, 2000; 69 FR 41177 , July 7, 2004]
§ 1.1116 Penalty for late or insufficient payments.
top
(a) Filings subject to fees and accompanied by defective fee submissions
will be dismissed under §1.1109 (d) of this subpart where the defect is
discovered by the Commission's staff within 30 calendar days from the
receipt of the application or filing by the Commission.
(1) A defective fee may be corrected by resubmitting the application or
other filing, together with the entire correct fee.
(2) For purposes of determining whether the filing is timely, the date of
resubmission with the correct fee will be considered the date of filing.
However, in cases where the fee payment fails due to error of the
applicant's bank, as evidenced by an affidavit of an officer of the bank,
the date of the original submission will be considered the date of filing.
(b) Applications or filings accompanied by insufficient fees or no fees, or
where such applications or filings are made by persons or organizations that
are delinquent in fees owed to the Commission, that are inadvertently
forwarded to Commission staff for substantive review will be billed for the
amount due if the discrepancy is not discovered until after 30 calendar days
from the receipt of the application or filing by the Commission.
Applications or filings that are accompanied by insufficient fees or no fees
will have a penalty charge equaling 25 percent of the amount due added to
each bill. Any Commission action taken prior to timely payment of these
charges is contingent and subject to rescission.
(c) Applicants to whom a deferral of payment is granted under the terms of
this subsection will be billed for the amount due plus a charge equalling 25
percent of the amount due. Any Commission actions taken prior to timely
payment of these charges are contingent and subject to rescission.
(d) Failure to submit fees, following notice to the applicant of failure to
submit the required fee, is subject to collection of the fee, including
interest thereon, any associated penalties, and the full cost of collection
to the Federal government pursuant to the provisions of the Debt Collection
Improvement Act, 31 U.S.C. 3717 and 3720A. See 47 CFR 1.1901 through 1.1952.
The debt collection processes described above may proceed concurrently with
any other sanction in this paragraph.
[ 52 FR 5289 , Feb. 20, 1987, as amended at 53 FR 40889 , Oct. 19, 1988; 55 FR 19172 , May 8, 1990. Redesignated and amended at 59 FR 30998 , June 16, 1994.
Redesignated at 60 FR 5326 , Jan. 27, 1995, as amended at 67 FR 67337 , Nov.
5, 2002; 69 FR 41177 , July 7, 2004; 69 FR 27847 , May 17, 2004; 69 FR 41177 ,
July 7, 2004]
Editorial Note: At 69 FR 57230 , Sept. 24, 2004, §1.1116(a) introductory
text was corrected by changing the reference to “§1.1109(b)” to read
“§1.1109(d)”; however, the amendment could not be incorporated because that
reference does not exist in the paragraph.
§ 1.1117 Petitions and applications for review.
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(a) The fees established by this subpart may be waived or deferred in
specific instances where good cause is shown and where waiver or deferral of
the fee would promote the public interest.
(b) Requests for waivers or deferrals will only be considered when received
from applicants acting in respect to their own applications. Requests for
waivers or deferrals of entire classes of services will not be considered.
(c) Petitions for waivers, deferrals, fee determinations, reconsiderations
and applications for review will be acted upon by the Managing Director with
the concurrence of the General Counsel. All such filings within the scope of
the fee rules shall be filed as a separate pleading and clearly marked to
the attention of the Managing Director. Any such request that is not filed
as a separate pleading will not be considered by the Commission. Requests
for deferral of a fee payment for financial hardship must be accompanied by
supporting documentation.
(1) Petitions and applications for review submitted with a fee must be
submitted to the Commission's lock box bank at the address for the
appropriate service set forth in §§1.1102 through 1.1107.
(2) If no fee payment is submitted, the request should be filed with the
Commission's Secretary.
(d) Deferrals of fees will be granted for an established period of time not
to exceed six months.
(e) Applicants seeking waivers must submit the request for waiver with the
application or filing, required fee and FCC Form 159, or a request for
deferral. A petition for waiver and/or deferral of payment must be submitted
to the Office of the Managing Director as specified in paragraph (c) of this
section. Waiver requests that do not include these materials will be
dismissed in accordance with §1.1109 of this subpart. Submitted fees will be
returned if a waiver is granted. The Commission will not be responsible for
delays in acting upon these requests.
(f) Petitions for waiver of a fee based on financial hardship will be
subject to the provisions of paragraph 1.1166(e).
[ 52 FR 5289 , Feb. 20, 1987, as amended at 55 FR 19172 , May 8, 1990; 55 FR 38065 , Sept. 17, 1990. Redesignated and amended at 59 FR 30998 , June 16,
1994, as further amended at 59 FR 30999 , June 16, 1994. Redesignated at 60 FR 5326 , Jan. 27, 1995, as amended at 65 FR 49762 , Aug. 15, 2000; 66 FR 36202 , July 11, 2001; 67 FR 67337 , Nov. 5, 2002; 68 FR 48467 , Aug. 13, 2003]
§ 1.1118 Error claims.
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(a) Applicants who wish to challenge a staff determination of an
insufficient fee or delinquent debt may do so in writing. A challenge to a
determination that a party is delinquent in paying the full application fee
must be accompanied by suitable proof that the fee had been paid or waived
(or deferred from payment during the period in question), or by the required
application payment and any assessment penalty payment (see §1.1116) of this
subpart). Failure to comply with these procedures will result in dismissal
of the challenge. These claims should be addressed to the Federal
Communications Commission, Attention: Financial Operations, 445 12th St.
SW., Washington, DC 20554 or emailed to ARINQUIRIES@fcc.gov.
(b) Actions taken by Financial Operations staff are subject to the
reconsideration and review provisions of §§1.106 and 1.115 of this part,
EXCEPT THAT reconsideration and/or review will only be available where the
applicant has made the full and proper payment of the underlying fee as
required by this subpart.
(1) Petitions for reconsideration and/or applications for review submitted
by applicants that have not made the full and proper fee payment will be
dismissed; and
(2) If the fee payment should fail while the Commission is considering the
matter, the petition for reconsideration or application for review will be
dismissed.
[ 52 FR 5289 , Feb. 20, 1987, as amended at 53 FR 40889 , Oct. 19, 1988.
Redesignated at 59 FR 30998 , June 16, 1994. Redesignated at 60 FR 5326 , Jan.
27, 1995, as amended at 65 FR 49763 , Aug. 15, 2000; 69 FR 27848 , May 17,
2004]
§ 1.1119 Billing procedures.
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(a) The fees required for the International Telecommunications Settlements
(§1.1103 of this subpart), Accounting and Audits Field Audits and Review of
Arrest Audits (§1.1106 of this subpart) should not be paid with the filing
or submission of the request. The fees required for requests for Special
Temporary Authority ( see generally §§1.1102, 1.1104, 1.1106 & 1.1107 of
this subpart) that the applicant believes is of an urgent or emergency
nature and are filed directly with the appropriate Bureau or Office should
not be paid with the filing of the request with that Bureau or Office.
(b) In these cases, the appropriate fee will be determined by the Commission
and the filer will be billed for that fee. The bill will set forth the
amount to be paid, the date on which payment is due, and the address to
which the payment should be submitted. See also §1.1111 of this subpart.
[ 55 FR 19172 , May 8, 1990, as amended at 58 FR 68541 , Dec. 28, 1993.
Redesignated and amended at 59 FR 30998 , June 16, 1994. Redesignated at 60 FR 5326 , Jan. 27, 1995, as amended at 65 FR 49763 , Aug. 15, 2000; 67 FR 67337 , Nov. 5, 2002; 69 FR 41177 , July 7, 2004]
§ 1.1151 Authority to prescribe and collect regulatory fees.
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Authority to impose and collect regulatory fees is contained in title VI,
section 6002(a) of the Omnibus Budget Reconciliation Act of 1993 (Pub. L.
103–66, 107 Stat. 397), enacting section 9 of the Communications Act, 47
U.S.C. 159, which directs the Commission to prescribe and collect annual
regulatory fees from designated regulatees in order to recover the costs of
certain of its regulatory activities in the private radio, mass media,
common carrier, and cable television services.
[ 59 FR 30999 , June 16, 1994]
§ 1.1152 Schedule of annual regulatory fees and filing locations for wireless
radio services.
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Exclusive use services
(per license) Fee amount^1 Address
1. Land Mobile (Above 470 MHz and 220 MHz Local, Base Station & SMRS) (47
CFR Part 90)
(a) New, Renew/Mod (FCC 601 & 159) $35.00 FCC, P.O. Box 358130, Pittsburgh,
PA 15251–5130.
(b) New, Renew/Mod (Electronic Filing) (FCC 601 & 159) 35.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
(c) Renewal Only (FCC 601 & 159) 35.00 FCC, P.O. Box 358245, Pittsburgh, PA
15251–5245.
(d) Renewal Only (Electronic Filing) (FCC 601 & 159) 35.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
220 MHz Nationwide
(a) New, Renew/Mod (FCC 601 & 159) 35.00 FCC, P.O. Box 358130, Pittsburgh,
PA 15251–5130.
(b) New, Renew/Mod (Electronic Filing) (FCC 601 & 159) 35.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
(c) Renewal Only (FCC 601 & 159) 35.00 FCC, P.O. Box 358245, Pittsburgh, PA
15251–5245.
(d) Renewal Only (Electronic Filing) (FCC 601 & 159) 35.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
2. Microwave (47 CFR Part 101) (Private)
(a) New, Renew/Mod (FCC 601 & 159) 40.00 FCC, P.O. Box 358130, Pittsburgh,
PA 15251–5130.
(b) New, Renew/Mod (Electronic Filing) (FCC 601 & 159) 40.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
(c) Renewal Only (FCC 601 & 159) 40.00 FCC, P.O. Box 358245, Pittsburgh, PA
15251–5245.
(d) Renewal Only (Electronic Filing) (FCC 601 & 159) 40.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
3. 218–219 MHz Service
(a) New, Renew/Mod (FCC 601 & 159) 55.00 FCC, P.O. Box 358130, Pittsburgh,
PA 15251–5130.
(b) New, Renew/Mod (Electronic Filing) (FCC 601 & 159) 55.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
(c) Renewal Only (FCC 601 & 159) 55.00 FCC, P.O. Box 358245, Pittsburgh, PA
15251–5245.
(d) Renewal Only (Electronic Filing) (FCC 601 & 159) 55.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
4. Shared Use Services
Land Mobile (Frequencies Below 470 MHz—except 220 MHz)
(a) New, Renew/Mod (FCC 601 & 159) 15.00 FCC, P.O. Box 358130, Pittsburgh,
PA 15251–5130.
(b) New, Renew/Mod (Electronic Filing) (FCC 601 & 159) 15.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
(c) Renewal Only (FCC 601 & 159) 15.00 FCC, P.O. Box 358245, Pittsburgh, PA
15251–5245.
(d) Renewal Only (Electronic Filing) (FCC 601 & 159) 15.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
General Mobile Radio Service
(a) New, Renew/Mod (FCC 605 & 159) 5.00 FCC, P.O. Box 358130, Pittsburgh, PA
15251–5130.
(b) New, Renew/Mod (Electronic Filing) (FCC 605 & 159) 5.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
(c) Renewal Only (FCC 605 & 159) 5.00 FCC, P.O. Box 358245, Pittsburgh, PA
15251–5245.
(d) Renewal Only (Electronic Filing) (FCC 605 & 159) 5.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
Rural Radio (Part 22)
(a) New, Additional Facility, Major Renew/Mod (Electronic Filing) (FCC 601 &
159) 15.00 FCC, P.O. Box 358994, Pittsburgh, PA 15251–5994.
(b) Renewal, Minor Renew/Mod (Electronic Filing) (FCC 601 & 159) 15.00 FCC,
P.O. Box 358994, Pittsburgh, PA 15251–5994.
Marine Coast
(a) New Renewal/Mod (FCC 601 & 159) 30.00 FCC, P.O. Box 358130, Pittsburgh,
PA 15251–5130.
(b) New, Renewal/Mod (Electronic Filing) (FCC 601 & 159) 30.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
(c) Renewal Only (FCC 601 & 159) 30.00 FCC, P.O. Box 358245, Pittsburgh, PA
15251–5245.
(d) Renewal Only (Electronic Filing) (FCC 601 & 159) 30.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
Aviation Ground
(a) New, Renewal/Mod (FCC 601 & 159) 10.00 FCC, P.O. Box 358130, Pittsburgh,
PA 15251–5130.
(b) New, Renewal/Mod (Electronic Filing) (FCC 601 & 159) 10.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
(c) Renewal Only (FCC 601 & 159) 10.00 FCC, P.O. Box 358245, Pittsburgh, PA
15251–5245.
(d) Renewal Only (Electronic Only) (FCC 601 & 159) 10.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
Marine Ship
(a) New, Renewal/Mod (FCC 605 & 159) 10.00 FCC, P.O. Box 358130, Pittsburgh,
PA 15251–5130.
(b) New, Renewal/Mod (Electronic Filing) (FCC 605 & 159) 10.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
(c) Renewal Only (FCC 605 & 159) 10.00 FCC, P.O. Box 358245, Pittsburgh, PA
15251–5245.
(d) Renewal Only (Electronic Filing) (FCC 605 & 159) 10.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
Aviation Aircraft
(a) New, Renew/Mod (FCC 605 & 159) 5.00 FCC, P.O. Box 358130, Pittsburgh, PA
15251–5130.
(b) New, Renew/Mod (Electronic Filing) (FCC 605 & 159) 5.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
(c) Renewal Only (FCC 605 & 159) 5.00 FCC, P.O. Box 358245, Pittsburgh, PA
15251–5245.
(d) Renewal Only (Electronic Filing) (FCC 605 & 159) 5.00 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
5. Amateur Vanity Call Signs
(a) Initial or Renew (FCC 605 & 159) 1.17 FCC, P.O. Box 358130, Pittsburgh,
PA 15251–5130.
(b) Initial or Renew (Electronic Filing) (FCC 605 & 159) 1.17 FCC, P.O. Box
358994, Pittsburgh, PA 15251–5994.
6. CMRS Mobile Services (per unit) (FCC 159) ^2.18 FCC, P.O. Box 358835,
Pittsburgh, PA 15251–5835.
7. CMRS Messaging Services (per unit) (FCC 159) ^2.08 FCC, P.O. Box 358835,
Pittsburgh, PA 15251–5835.
8. Broadband Radio Service (formerly MMDS and MDS) 325 FCC, Multipoint, P.O.
Box 358835, Pittsburgh, PA 15251–5835.
9. Local Multipoint Distribution Service 325 FCC, Multipoint, P.O. Box
358835, Pittsburgh, PA 15251–5835.
^1Note that “small fees” are collected in advance for the entire license
term. Therefore, the annual fee amount shown in this table that is a small
fee (categories 1 through 5) must be multiplied by the 5- or 10-year license
term, as appropriate, to arrive at the total amount of regulatory fees owed.
It should be further noted that application fees may also apply as detailed
in section 1.1102 of this chapter.
^2These are standard fees that are to be paid in accordance with §1.1157(b)
of this chapter.
[ 72 FR 45934 , Aug. 16, 2007]
§ 1.1153 Schedule of annual regulatory fees and filing locations for mass
media services.
top
Fee amount Address
Radio [AM and FM] (47 CFR part 73)
1. AM Class A:
<=25,000 population $625 FCC, Radio, P.O. Box 358835, Pittsburgh, PA
15251–5835.
25,001–75,000 population 1,225
75,001–150,000 population 1,825
150,001–500,000 population 2,750
500,001–1,200,000 population 3,950
1,200,001–3,000,000 population 6,075
>3,000,000 population 7,275
2. AM Class B:
<=25,000 population 475
25,001–75,000 population 925
75,001–150,000 population 1,150
150,001–500,000 population 1,950
500,001–1,200,000 population 2,975
1,200,001–3,000,000 population 4,575
>3,000,000 population 5,475
3. AM Class C:
<=25,000 population 400
25,001–75,000 population 600
75,001–150,000 population 800
150,001–500,000 population 1,200
500,001–1,200,000 population 2,000
1,200,001–3,000,000 population 3,000
>3,000,000 population 3,800
4. AM Class D:
<=25,000 population 475
25,001–75,000 population 725
75,001–150,000 population 1,200
150,001–500,000 population 1,425
500,001–1,200,000 population 2,375
1,200,001–3,000,000 population 3,800
>3,000,000 population 4,750
5. AM Construction Permit 400
6. FM Classes A, B1 and C3:
<=25,000 population 575
25,001–75,000 population 1,150
75,001–150,000 population 1,600
150,001–500,000 population 2,475
500,001–1,200,000 population 3,900
1,200,001–3,000,000 population 6,350
>3,000,000 population 8,075
7. FM Classes B, C, C0, C1 and C2:
<=25,000 population 725
25,001–75,000 population 1,250
75,001–150,000 population 2,300
150,001–500,000 population 3,000
500,001–1,200,000 population 4,400
1,200,001–3,000,000 population 7,025
>3,000,000 population 9,125
8. FM Construction Permits 575
TV (47 CFR part 73) VHF Commercial:
1. Markets 1 thru 10 64,300 FCC, TV Branch, P.O. Box 358835, Pittsburgh, PA
15251–5835.
2. Markets 11 thru 25 46,350
3. Markets 26 thru 50 31,075
4. Markets 51 thru 100 20,000
5. Remaining Markets 5,125
6. Construction Permits 5,125
UHF Commercial:
1. Markets 1 thru 10 19,650 FCC, UHF Commercial, P.O. Box 358835,
Pittsburgh, PA 15251–5835.
2. Markets 11 thru 25 19,450
3. Markets 26 thru 50 10,800
4. Markets 51 thru 100 6,300
5. Remaining Markets 1,750
6. Construction Permits 1,750
Satellite UHF/VHF Commercial:
1. All Markets 1,100 FCC Satellite TV, P.O. Box 358835, Pittsburgh, PA
15251–5835.
2. Construction Permits 550
Low Power TV, Class A TV, TV/FM Translator, & TV/FM Booster (47 CFR part 74)
345 FCC, Low Power, P.O. Box 358835, Pittsburgh, PA 15251–5835.
Broadcast Auxiliary 10 FCC, Auxiliary, P.O. Box 358835, Pittsburgh, PA
15251–5835.
[ 72 FR 45935 , Aug. 16, 2007]
§ 1.1154 Schedule of annual regulatory charges and filing locations for
common carrier services.
top
Fee amount Address
Radio Facilities:
1. Microwave (Domestic Public Fixed) (Electronic Filing) (FCC Form 601 &
159) $40.00 FCC, P.O. Box 358994, Pittsburgh, PA 15251–5994.
Carriers:
1. Interstate Telephone Service Providers (per interstate and international
end-user revenues (see FCC Form 499–A) .00266 FCC, Carriers, P.O. Box
358835, Pittsburgh, PA 15251–5835.
[ 72 FR 45936 , Aug. 16, 2007]
§ 1.1155 Schedule of regulatory fees and filing locations for cable
television services.
top
Fee amount Address
1. Cable Television Relay Service $185 FCC, Cable, P.O. Box 358835,
Pittsburgh, PA 15251–5835.
2. Cable TV System (per subscriber) .75
[ 72 FR 45936 , Aug. 16, 2007]
§ 1.1156 Schedule of regulatory fees and filing locations for international
services.
top
Fee amount Address
Radio Facilities:
1. International (HF) Broadcast $795 FCC, International, P.O. Box 358835,
Pittsburgh, PA 15251–5835.
2. International Public Fixed 1,875 FCC, International, P.O. Box 358835,
Pittsburgh, PA 15251–5835.
Space Stations (Geostationary Orbit) 109,200 FCC, Space Stations, P.O. Box
358835, Pittsburgh, PA 15251–5835.
Space Stations (Non-Geostationary Orbit) 116,475 FCC, Space Stations, P.O.
Box 358835, Pittsburgh, PA 15251–5835.
Earth Stations:
Transmit/Receive & Transmit Only (per authorization or registration) 185
FCC, Earth Station, P.O. Box 358835, Pittsburgh, PA 15251–5835.
Carriers:
International Bearer Circuits (per active 64KB circuit or equivalent) 1.05
FCC, International, P.O. Box 358835, Pittsburgh, PA 15251–5835.
[ 72 FR 45937 , Aug. 16, 2007]
§ 1.1157 Payment of charges for regulatory fees.
top
Payment of a regulatory fee, required under §§1.1152 through 1.1156, shall
be filed in the following manner:
(a) (1) The amount of the regulatory fee payment that is due with any
application for authorization shall be the multiple of the number of years
in the entire term of the requested license or other authorization
multiplied by the annual fee payment required in the Schedule of Regulatory
Fees, effective at the time the application is filed. Except as set forth in
§1.1160, advance payments shall be final and shall not be readjusted during
the term of the license or authorization, notwithstanding any subsequent
increase or decrease in the annual amount of a fee required under the
Schedule of Regulatory Fees.
(2) Failure to file the appropriate regulatory fee due with an application
for authorization will result in the return of the accompanying application,
including an application for which the Commission has assigned a specific
filing deadline.
(b)(1) Payments of standard regulatory fees applicable to certain wireless
radio, mass media, common carrier, cable and international services shall be
filed in full on an annual basis at a time announced by the Commission or
the Managing Director, pursuant to delegated authority, and published in
theFederal Register.
(2) Large regulatory fees, as annually defined by the Commission, may be
submitted in installment payments or in a single payment on a date certain
as announced by the Commission or the Managing Director, pursuant to
delegated authority, and published in theFederal Register.
(c) Standard regulatory fee payments, as well as any installment payment,
must be filed with a FCC Form 159, FCC Remittance Advice, and a FCC Form
159C, Remittance Advice Continuation Sheet, if additional space is needed.
Failure to submit a copy of FCC Form 159 with a standard regulatory fee
payment, or an installment payment, will result in the return of the
submission and a 25 percent penalty if the payment is resubmitted after the
date the Commission establishes for the payment of standard regulatory fees
and for any installment payment.
(1) Any late filed regulatory fee payment will be subject to the penalties
set forth in section 1.1164.
(2) If one or more installment payments are untimely submitted or not
submitted at all, the eligibility of the subject regulatee to submit
installment payments may be cancelled.
(d) Any Commercial Mobile Radio Service (CMRS) licensee subject to payment
of an annual regulatory fee shall retain for a period of two (2) years from
the date on which the regulatory fee is paid, those business records which
were used to calculate the amount of the regulatory fee.
[ 60 FR 34031 , June 29, 1995, as amended at 62 FR 59825 , Nov. 5, 1997; 67 FR 46306 , July 12, 2002]
§ 1.1158 Form of payment for regulatory fees.
top
Any regulatory fee payment must be submitted in the form of a check, bank
draft or money order denominated in U.S. dollars and drawn on a United
States financial institution and made payable to the Federal Communications
Commission or by Visa, Mastercard, American Express or Discover credit cards
only. The Commission discourages applicants from submitting cash payments
and will not be responsible for cash sent through the mail. Personal or
corporate checks dated more than six months prior to their submission to the
Commission's lockbox bank and postdated checks will not be accepted and will
be returned as deficient.
(a) Upon authorization from the Commission following a written request,
electronic fund transfer (EFT) payment of a regulatory fee may be made as
follows:
(1)(i) The payor may instruct its bank to make payment of the regulatory fee
directly to the Commission's lockbox bank, or
(ii) The payor may authorize the Commission to direct its lockbox bank to
withdraw funds directly from the payor's bank account.
(2) No EFT payment of a regulatory fee will be accepted unless the payor has
obtained the written authorization of the Commission to submit regulatory
fees electronically. Procedures for electronic payment of regulatory fees
will be announced by Public Notice. It is the responsibility of the payor to
insure that any electronic payment is made in the manner required by the
Commission. Failure to comply with the Commission's procedures for
electronic fee payment will result in the return of the fee payment, and a
penalty fee of 25 percent if the subsequent refiling of the fee payment is
late. Failure to comply will also subject the payor to the penalties set
forth in §1.1164.
(b) Multiple payment instruments for a single regulatory fee are not
permitted, except that the Commission will accept multiple money orders in
payment of any fee where the fee exceeds the maximum amount for a money
order established by the issuing entity and the use of multiple money orders
is the only practicable means available for payment.
(c) Payment of multiple standard regulatory fees (including an installment
payment) due on the same date, may be made with a single payment instrument
and cover mass media, common carrier, international, and cable service fee
payments. Each regulatee is solely responsible for accurately accounting for
and listing each license or authorization and the number of subscribers,
access lines, or other relevant units on the accompanying FCC Form 159 and,
if needed, FCC Form 159C and for making full payment for every regulatory
fee listed on the accompanying form. Any omission or payment deficiency of a
regulatory fee will result in a 25 percent penalty of the amount due and
unpaid.
(d) Any regulatory fee payment (including a regulatory fee payment submitted
with an application in the wireless radio service) made by credit card or
money order must be submitted with a completed FCC Form 159. Failure to
accurately enter the credit card number and date of expiration and the
payor's signature in the appropriate blocks on FCC Form 159 will result in
rejection of the credit card payment.
[ 60 FR 34031 , June 29, 1995, as amended at 67 FR 46306 , July 12, 2002]
§ 1.1159 Filing locations and receipts for regulatory fees.
top
(a) Regulatory fee payments must be directed to the location and address set
forth in §§1.1152 through 1.1156 for the specific category of fee involved.
Any regulatory fee required to be submitted with an application must be
filed as a part of the application package accompanying the application. The
Commission will not take responsibility for matching fees, forms and
applications submitted at different times or locations.
(b) Petitions for reconsideration or applications for review of fee
decisions submitted with a standard regulatory fee payment pursuant to
§§1.1152 through 1.1156 of the rules are to be filed with the Commission's
lockbox bank in the manner set forth in §§1.1152 through 1.1156 for payment
of the fee subject to the petition for reconsideration or the application
for review. Petitions for reconsideration and applications for review that
are submitted with no accompanying payment should be filed with the
Secretary, Federal Communications Commission, Attention: Managing Director,
Washington, D.C. 20554.
(c) Any request for exemption from a regulatory fee shall be filed with the
Secretary, Federal Communications Commission, Attention: Managing Director,
Washington, D.C. 20554, except that requests for exemption accompanied by a
tentative fee payment shall be filed at the lockbox set forth for the
appropriate service in §§1.1152 through 1.1156.
(d) The Commission will furnish a receipt for a regulatory fee payment only
upon request. In order to obtain a receipt for a regulatory fee payment, the
package must include an extra copy of the Form FCC 159 or, if a Form 159 is
not required with the payment, a copy of the first page of the application
or other filing submitted with the regulatory fee payment, submitted
expressly for the purpose of serving as a receipt for the regulatory fee
payment and application fee payment, if required. The document should be
clearly marked “copy” and should be the top document in the package. The
copy will be date stamped immediately and provided to the bearer of the
submission, if hand delivered. For submissions by mail, the receipt copy
will be provided through return mail if the filer has attached to the
receipt copy a stamped self-addressed envelope of sufficient size to contain
the receipt document.
(e) The Managing Director may issue annually, at his discretion, a Public
Notice setting forth the names of all commercial regulatees that have paid a
regulatory fee and shall publish the Public Notice in theFederal Register.
[ 60 FR 34032 , June 29, 1995, as amended at 62 FR 59825 , Nov. 5, 1997]
§ 1.1160 Refunds of regulatory fees.
top
(a) Regulatory fees will be refunded, upon request, only in the following
instances:
(1) When no regulatory fee is required or an excessive fee has been paid. In
the case of an overpayment, the refund amount will be based on the
applicants', permittees', or licensees' entire submission. All refunds will
be issued to the payor named in the appropriate block of the FCC Form 159.
Payments in excess of a regulatory fee will be refunded only if the
overpayment is $10.00 or more.
(2) In the case of advance payment of regulatory fees, subject to §1.1152, a
refund will be issued based on unexpired full years:
(i) When the Commission adopts new rules that nullify a license or other
authorization, or a new law or treaty renders a license or other
authorization useless;
(ii) When a licensee in the wireless radio service surrenders the license or
other authorization subject to a fee payment to the Commission; or
(iii) When the Commission declines to grant an application submitted with a
regulatory fee payment.
(3) When a waiver is granted in accordance with §1.1166.
(b) No pro-rata refund of an annual fee will be issued.
(c) No refunds will be issued based on unexpired partial years.
(d) No refunds will be processed without a written request from the
applicant, permittee, licensee or agent.
[ 60 FR 34032 , June 29, 1995, as amended at 67 FR 46307 , July 12, 2002]
§ 1.1161 Conditional license grants and delegated authorizations.
top
(a) Grant of any application or an instrument of authorization or other
filing for which a regulatory fee is required to accompany the application
or filing, will be conditioned upon final payment of the current or
delinquent regulatory fees. Final payment shall mean receipt by the U.S.
Treasury of funds cleared by the financial institution on which the check,
bank draft, money order, credit card (Visa, MasterCard, American Express, or
Discover), wire or electronic payment is drawn.
(1) If, prior to a grant of an instrument of authorization, the Commission
is notified that final payment of the regulatory fee has not been made, the
application or filing:
(i) Will be dismissed and returned;
(ii) Shall lose its place in the processing line; and
(iii) Will not be treated as timely filed if resubmitted after the relevant
filing deadline.
(2) If, subsequent to a grant of an instrument of authorization or other
filing, the Commission is notified that final payment has not been made, the
Commission will:
(i) Automatically rescind that instrument of authorization for failure to
meet the condition imposed by this subsection;
(ii) Notify the grantee of this action; and
(iii) Treat as late filed any application resubmitted after the original
deadline for filing the application.
(3) Upon receipt of a notification of rescission of the authorization, the
grantee will immediately cease operations initiated pursuant to the
authorization.
(b) In those instances where the Commission has granted a request for
deferred payment of a regulatory fee, further processing of the application
or filing or the grant of authority shall be conditioned upon final payment
of the regulatory fee and any required penalties for late payment prescribed
by the deferral decision. Failure to comply with the terms of the deferral
decision shall result in the automatic dismissal of the submission or
rescission of the Commission authorization. Further, the Commission shall:
(1) Notify the grantee that the authorization has been rescinded. Upon such
notification, the grantee will immediately cease operations initiated
pursuant to the authorization; and
(2) Treat as late filed any application resubmitted after the original
deadline for filing the application.
(c)(1) Where an applicant is found to be delinquent in the payment of
regulatory fees, the Commission will make a written request for the fee,
together with any penalties that may be rendered under this subpart. Such
request shall inform the regulatee that failure to pay may result in the
Commission withholding action on any application or request filed by the
applicant. The staff shall also inform the regulatee of the procedures for
seeking Commission review of the staff's determination.
(2) If, after final determination that the fee is due or that the applicant
is delinquent in the payment of fees and payment is not made in a timely
manner, the staff will withhold action on the application or filing until
payment or other satisfactory arrangement is made. If payment or
satisfactory arrangement is not made within 30 days, the application will be
dismissed.
[ 60 FR 34032 , June 29, 1995, as amended at 69 FR 27848 , May 17, 2004]
§ 1.1162 General exemptions from regulatory fees.
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No regulatory fee established in §§1.1152 through 1.1156, unless otherwise
qualified herein, shall be required for: (a) Applicants, permittees or
licensees in the Amateur Radio Service, except that any person requesting a
vanity call-sign shall be subject to the payment of a regulatory fee, as
prescribed in §1.1152.
(b) Applicants, permittees, or licensees who qualify as government entities.
For purposes of this exemption, a government entity is defined as any state,
possession, city, county, town, village, municipal corporation, or similar
political organization or subpart thereof controlled by publicly elected or
duly appointed public officials exercising sovereign direction and control
over their respective communities or programs.
(c) Applicants and permittees who qualify as nonprofit entities. For
purposes of this exemption, a nonprofit entity is defined as: an
organization duly qualified as a nonprofit, tax exempt entity under section
501 of the Internal Revenue Code, 26 U.S.C. 501; or an entity with current
certification as a nonprofit corporation or other nonprofit entity by state
or other governmental authority.
(1) Any permittee, licensee or other entity subject to a regulatory fee and
claiming an exemption from a regulatory fee based upon its status as a
nonprofit entity, as described above, shall file with the Secretary of the
Commission (Attn: Managing Director) written documentation establishing the
basis for its exemption within 60 days of its coming under the regulatory
jurisdiction of the Commission or at the time its fee payment would
otherwise be due, whichever is sooner, or at such other time as required by
the Managing Director. Acceptable documentation may include Internal Revenue
Service determination letters, state or government certifications or other
documentation that non-profit status has been approved by a state or other
governmental authority. Applicants, permittees and licensees are required to
file documentation of their nonprofit status only once, except upon request
of the Managing Director.
(2) Within sixty (60) days of a change in nonprofit status, a licensee or
permittee previously claiming a 501(C) exemption is required to file with
the Secretary of the Commission (Attn: Managing Director) written notice of
such change in its nonprofit status or ownership. Additionally, for-profit
purchasers or assignees of a license, station or facility previously
licensed or operated by a non-profit entity not subject to regulatory fees
must notify the Secretary of the Commission (Attn: Managing Director) of
such purchase or reassignment within 60 days of the effective date of the
purchase or assignment.
(d) Applicants, permittees or licensees in the Special Emergency Radio and
Public Safety Radio services.
(e) Applicants, permittees or licensees of noncommercial educational (NCE)
broadcast stations in the FM or TV services, as well as AM applicants,
permittees or licensees operating in accordance with §73.503 of this
chapter.
(f) Applicants, permittees, or licensees qualifying under paragraph (e) of
this section requesting Commission authorization in any other mass media
radio service (except the international broadcast (HF) service), wireless
radio service, common carrier radio service, or international radio service
requiring payment of a regulatory fee, if the service is used in conjunction
with their NCE broadcast station on an NCE basis.
(g) Other applicants, permittees or licensees providing, or proposing to
provide, a NCE or instructional service, but not qualifying under paragraph
(e) of this section, may be exempt from regulatory fees, or be entitled to a
refund, in the following circumstances:
(1) The applicant, permittee or licensee is an organization that, like the
Public Broadcasting Service or National Public Radio, receives funding
directly or indirectly through the Public Broadcasting Fund, 47 U.S.C.
396(k), distributed by the Corporation for Public Broadcasting, where the
authorization requested will be used in conjunction with the organization on
an NCE basis;
(2) An applicant, permittee or licensee of a translator or low power
television station operating or proposing to operate an NCE service who,
after grant, provides proof that it has received funding for the
construction of the station through the National Telecommunications and
Information Administration (NTIA) or other showings as required by the
Commission; or
(3) An applicant, permittee, or licensee provided a fee refund under §1.1160
and operating as an NCE station, is exempt from fees for broadcast auxiliary
stations (subparts D, E, F, and G of part 74 of this chapter) or stations in
the wireless radio, common carrier, or international services where such
authorization is to be used in conjunction with the NCE translator or low
power station.
(h) An applicant, permittee or licensee that is the licensee in the
Educational Broadband Service (EBS) (formerly, Instructional Television
Fixed Service (ITFS)) (parts 27 and 74, e.g. , §§27.1200, et seq. , and
74.832(b), of this chapter) is exempt from regulatory fees where the
authorization requested will be used by the applicant in conjunction with
the provision of the EBS.
(i) Applications filed in the wireless radio service for the sole purpose of
modifying an existing authorization (or a pending application for
authorization). However, if the applicant also requests a renewal or
reinstatement of its license or other authorization for which the submission
of a regulatory fee is required, the appropriate regulatory fee for such
additional request must accompany the application.
[ 60 FR 34033 , June 29, 1995, as amended at 60 FR 34904 , July 5, 1995; 62 FR 59825 , Nov. 5, 1997; 71 FR 43872 , Aug. 2, 2006]
§ 1.1163 Adjustments to regulatory fees.
top
(a) For Fiscal Year 1995, the amounts assessed for regulatory fees are set
forth in §§1.1152 through 1.1156.
(b) For Fiscal year 1996 and thereafter, the Schedule of Regulatory Fees,
contained in §§1.1152 through 1.1156, may be adjusted annually by the
Commission pursuant to section 9 of the Communications Act. 47 U.S.C. 159.
Adjustments to the fees established for any category of regulatory fee
payment shall include projected cost increases or decreases and an estimate
of the volume of licensees or units upon which the regulatory fee is
calculated.
(c) The fees assessed shall:
(1) Be derived by determining the full-time equivalent number of employees
performing enforcement activities, policy and rulemaking activities, user
information services, and international activities within the Wireline
Competition Bureau, Media Bureau, International Bureau and other offices of
the Commission, adjusted to take into account factors that are reasonably
related to the benefits provided to the payor of the fee by the Commission's
activities, including such factors as service coverage area, shared use
versus exclusive use, and other factors that the Commission determines are
necessary in the public interest;
(2) Be established at amounts that will result in collection, during each
fiscal year, of an amount that can reasonably be expected to equal the
amount appropriated for such fiscal year for the performance of the
activities described in paragraph (c)(1) of this section.
(d) The Commission shall by rule amend the Schedule of Regulatory Fees by
proportionate increases or decreases that reflect, in accordance with
paragraph (c)(2) of this section, changes in the amount appropriated for the
performance of the activities described in paragraph (c)(1) of this section,
for such fiscal year. Such proportionate increases or decreases shall be
adjusted to reflect unexpected increases or decreases in the number of
licensees or units subject to payment of such fees and result in collection
of an aggregate amount of fees that will approximately equal the amount
appropriated for the subject regulatory activities.
(e) The Commission shall, by rule, amend the Schedule of Regulatory Fees if
the Commission determines that the Schedule requires amendment to comply
with the requirements of paragraph (c)(1) of this section. In making such
amendments, the Commission shall add, delete or reclassify services in the
Schedule to reflect additional deletions or changes in the nature of its
services as a consequence of Commission rulemaking proceedings or changes in
law.
(f) In making adjustments to regulatory fees, the Commission will round such
fees to the nearest $5.00 in the case of fees under $1,000.00, or to the
nearest $25.00 in the case of fees of $1,000.00 or more.
[ 60 FR 34033 , June 29, 1995, as amended at 67 FR 13224 , Mar. 21, 2002]
§ 1.1164 Penalties for late or insufficient regulatory fee payments.
top
Any late payment or insufficient payment of a regulatory fee, not excused by
bank error, shall subject the regulatee to a 25 percent penalty of the
amount of the fee of installment payment which was not paid in a timely
manner. A timely fee payment or installment payment is one received at the
Commission's lockbox bank by the due date specified by the Commission or by
the Managing Director. A payment will also be considered late filed if the
payment instrument (check, money order, bank draft or credit card) is
uncollectible.
(a) The Commission may, in its discretion, following one or more late filed
installment payments, require a regulatee to pay the entire balance of its
regulatory fee by a date certain, in addition to assessing a 25 percent
penalty.
(b) In cases were a fee payment fails due to error by the payor's bank, as
evidenced by an affidavit of an officer of the bank, the date of the
original submission will be considered the date of filing.
(c) If a regulatory fee is 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.
(d)(1) Where a regulatee's new, renewal or reinstatement application is
required to be filed with a regulatory fee (as is the case with wireless
radio services), the application will be dismissed if the regulatory fee is
not included with the application package. In the case of a renewal or
reinstatement application, the application may not be refiled unless the
appropriate regulatory fee plus the 25 percent penalty charge accompanies
the refiled application.
(2) If the application that must be accompanied by a regulatory fee is a
mutually exclusive application with a filing deadline, or any other
application that must be filed by a date certain, the application will be
dismissed if not accompanied by the proper regulatory fee and will be
treated as late filed if resubmitted after the original date for filing
application.
(e) Any pending or subsequently filed application submitted by a party will
be dismissed if that party is determined to be delinquent in paying a
standard regulatory fee or an installment payment. The application may be
resubmitted only if accompanied by the required regulatory fee and by any
assessed penalty payment.
(f) In instances where the Commission may revoke an existing instrument of
authorization for failure to file a regulatory fee, the Commission will
provide prior notice to the regulatee of such action and shall allow the
licensee no less than 60 days to either pay the fee or show cause why the
payment assessed is inapplicable or should otherwise be waived or deferred.
(1) An adjudicatory hearing will not be designated unless the response by
the regulatee to the Order to Show Cause presents a substantial and material
question of fact.
(2) Disposition of the proceeding shall be based upon written evidence only
and the burden of proceeding with the introduction of evidence and the
burden of proof shall be on the respondent regulatee.
(3) Unless the regulatee substantially prevails in the hearing, the
Commission may assess costs for the conduct of the proceeding against the
respondent regulatee. See 47 U.S.C. 402(b)(5).
(4) Any regulatee failing to submit a regulatory fee, following notice to
the regulatee of failure to submit the required fee, is subject to
collection of the fee, including interest thereon, any associated penalties,
and the full cost of collection to the Federal government pursuant to
section 3720A of the Internal Revenue Code, 31 U.S.C. 3717, and to the
provisions of the Debt Collection Act, 31 U.S.C. 3717. See 47 CFR 1.1901
through 1.1952. The debt collection processes described above may proceed
concurrently with any other sanction in this paragraph.
(5) An application or filing by a regulatee that is delinquent in its debt
to the Commission is also subject to dismissal under 47 CFR 1.1910.
[ 60 FR 34034 , June 29, 1995, as amended at 69 FR 27848 , May 17, 2004]
§ 1.1165 Payment by cashier's check for regulatory fees.
top
Payment by cashier's check may be required when a person or organization
makes payment, on one or more occasions, with a payment instrument on which
the Commission does not receive final payment and such error is not excused
by bank error.
[ 60 FR 34034 , June 29, 1995]
§ 1.1166 Waivers, reductions and deferrals of regulatory fees.
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The fees established by sections 1.1152 through 1.1156 may be waived,
reduced or deferred in specific instances, on a case-by-case basis, where
good cause is shown and where waiver, reduction or deferral of the fee would
promote the public interest. Requests for waivers, reductions or deferrals
of regulatory fees for entire categories of payors will not be considered.
(a) Requests for waivers, reductions or deferrals will be acted upon by the
Managing Director with the concurrence of the General Counsel. All such
filings within the scope of the fee rules shall be filed as a separate
pleading and clearly marked to the attention of the Managing Director. Any
such request that is not filed as a separate pleading will not be considered
by the Commission.
(1) If the request for waiver, reduction or deferral is accompanied by a fee
payment, the request must be submitted to the Commission's lockbox bank at
the address for the appropriate service set forth in §§1.1152 through 1.1156
of this subpart.
(2) If no fee payment is submitted, the request should be filed with the
Commission's Secretary.
(b) Deferrals of fees will be granted for a period of six months following
the date that the fee is initially due.
(c) Petitions for waiver of a regulatory fee must be accompanied by the
required fee and FCC Form 159. Submitted fees will be returned if a waiver
is granted. Waiver requests that do not include the required fees or forms
will be dismissed unless accompanied by a petition to defer payment due to
financial hardship, supported by documentation of the financial hardship.
(d) Petitions for reduction of a fee must be accompanied by the full fee
payment and Form 159. Petitions for reduction accompanied by a fee payment
must be addressed to the Federal Communications Commission, Attention:
Petitions, Post Office Box 358835, Pittsburgh, Pennsylvania, 15251–5835.
Petitions for reduction that do not include the required fees or forms will
be dismissed unless accompanied by a petition to defer payment due to
financial hardship, supported by documentation of the financial hardship.
(e) Petitions for waiver of a fee based on financial hardship, including
bankruptcy, will not be granted, even if otherwise consistent with
Commission policy, to the extent that the total regulatory and application
fees for which waiver is sought exceeds $500,000 in any fiscal year,
including regulatory fees due in any fiscal year, but paid prior to the due
date. In computing this amount, the amounts owed by an entity and its
subsidiaries and other affiliated entities will be aggregated. In cases
where the claim of financial hardship is not based on bankruptcy, waiver,
partial waiver, or deferral of fees above the $500,000 cap may be considered
on a case-by-case basis.
[ 60 FR 34034 , June 29, 1995, as amended at 65 FR 78989 , Dec. 18, 2000; 66 FR 36206 , July 11, 2001; 68 FR 48469 , Aug. 13, 2003]
§ 1.1167 Error claims related to regulatory fees.
top
(a) Challenges to determinations or an insufficient regulatory fee payment
or delinquent fees should be made in writing. A challenge to a determination
that a party is delinquent in paying a standard regulatory fee must be
accompanied by suitable proof that the fee had been paid or waived (deferred
from payment during the period in question), or by the required regulatory
payment and any assessed penalty payment (see §1.1164(c) of this subpart).
Challenges submitted with a fee payment must be submitted to address stated
on the invoice or billing statement. Challenges not accompanied by a fee
payment should be filed with the Commission's Secretary and clearly marked
to the attention of the Managing Director or emailed to ARINQUIRIES@fcc.gov.
(b) The filing of a petition for reconsideration or an application for
review of a fee determination will not relieve licensees from the
requirement that full and proper payment of the underlying fee payment be
submitted, as required by the Commission's action, or delegated action, on a
request for waiver, reduction or deferment. Petitions for reconsideration
and applications for review submitted with a fee payment must be submitted
to the same location as the original fee payment. Petitions for
reconsideration and applications for review not accompanied by a fee payment
should be filed with the Commission's Secretary and clearly marked to the
attention of the Managing Director.
(1) Failure to submit the fee by the date required will result in the
assessment of a 25 percent penalty.
(2) If the fee payment should fail while the Commission is considering the
matter, the petition for reconsideration or application for review will be
dismissed.
[ 60 FR 34035 , June 29, 1995, as amended at 69 FR 27848 , May 17, 2004]
§ 1.1181 Authority to prescribe and collect fees for competitive
bidding-related services and products.
top
Authority to prescribe, impose, and collect fees for expenses incurred by
the government is governed by the Independent Offices Appropriation Act of
1952, as amended, 31 U.S.C. 9701, which authorizes agencies to prescribe
regulations that establish charges for the provision of government services
and products. Under this authority, the Federal Communications Commission
may prescribe and collect fees for competitive bidding-related services and
products as specified in §1.1182.
[ 60 FR 38280 , July 26, 1995]
§ 1.1182 Schedule of fees for products and services provided by the
Commission in connection with competitive bidding procedures.
top
Product or service Fee amount Payment procedure
On-line remote access 900 Number Telephone Service) 2.30 per minute Charges
included on customer's long distance telephone bill.
Remote Bidding Software $175.00 per package Payment to auction contractor by
credit card or check. (Public Notice will specify exact payment procedures.)
Bidder Information Package First package free; $16.00 per additional package
(including postage) to same person or entity Payment to auction contractor
by credit card or check. (Public Notice will specify exact payment
procedures.)
[ 60 FR 38280 , July 26, 1995]
Subpart H—Ex Parte Communications
top
Source: 52 FR 21052 , June 4, 1987, unless otherwise noted.
General
top
§ 1.1200 Introduction.
top
(a) Purpose. To ensure the fairness and integrity of its decision-making,
the Commission has prescribed rules to regulate ex parte presentations in
Commission proceedings. These rules specify “exempt” proceedings, in which
ex parte presentations may be made freely (§1.1204(b)),
“permit-but-disclose” proceedings, in which ex parte presentations to
Commission decision-making personnel are permissible but subject to certain
disclosure requirements (§1.1206), and “restricted” proceedings in which ex
parte presentations to and from Commission decision-making personnel are
generally prohibited (§1.1208). In all proceedings, a certain period (”the
Sunshine Agenda period”) is designated in which all presentations to
Commission decision-making personnel are prohibited (§1.1203). The
limitations on ex parte presentations described in this section are subject
to certain general exceptions set forth in §1.1204(a). Where the public
interest so requires in a particular proceeding, the Commission and its
staff retain the discretion to modify the applicable ex parte rules by
order, letter, or public notice. Joint Boards may modify the ex parte rules
in proceedings before them.
(b) Inquiries concerning the propriety of ex parte presentations should be
directed to the Office of General Counsel.
[ 62 FR 15853 , Apr. 3, 1997]
§ 1.1202 Definitions.
top
For the purposes of this subpart, the following definitions apply:
(a) Presentation. A communication directed to the merits or outcome of a
proceeding, including any attachments to a written communication or
documents shown in connection with an oral presentation directed to the
merits or outcome of a proceeding. Excluded from this term are
communications which are inadvertently or casually made, inquiries
concerning compliance with procedural requirements if the procedural matter
is not an area of controversy in the proceeding, statements made by
decisionmakers that are limited to providing publicly available information
about pending proceedings, and inquiries relating solely to the status of a
proceeding, including inquiries as to the approximate time that action in a
proceeding may be taken. However, a status inquiry which states or implies a
view as to the merits or outcome of the proceeding or a preference for a
particular party, which states why timing is important to a particular party
or indicates a view as to the date by which a proceeding should be resolved,
or which otherwise is intended to address the merits or outcome or to
influence the timing of a proceeding is a presentation.
Note to paragraph(a): A communication expressing concern about
administrative delay or expressing concern that a proceeding be resolved
expeditiously will be treated as a permissible status inquiry so long as no
reason is given as to why the proceeding should be expedited other than the
need to resolve administrative delay, no view is expressed as to the merits
or outcome of the proceeding, and no view is expressed as to a date by which
the proceeding should be resolved. A presentation by a party in a restricted
proceeding not designated for hearing requesting action by a particular date
or giving reasons that a proceeding should be expedited other than the need
to avoid administrative delay (and responsive presentations by other
parties) may be made on an ex parte basis subject to the provisions of
§1.1204(a)(11).
(b) Ex parte presentation. Any presentation which:
(1) If written, is not served on the parties to the proceeding; or
(2) If oral, is made without advance notice to the parties and without
opportunity for them to be present.
Note to paragraph(b): Written communications include electronic submissions
transmitted in the form of texts, such as by Internet electronic mail.
(c) Decision-making personnel. Any member, officer, or employee of the
Commission, or, in the case of a Joint Board, its members or their staffs,
who is or may reasonably be expected to be involved in formulating a
decision, rule, or order in a proceeding. Any person who has been made a
party to a proceeding or who otherwise has been excluded from the decisional
process shall not be treated as a decision-maker with respect to that
proceeding. Thus, any person designated as part of a separate trial staff
shall not be considered a decision-making person in the designated
proceeding. Unseparated Bureau or Office staff shall be considered
decision-making personnel with respect to decisions, rules, and orders in
which their Bureau or Office participates in enacting, preparing, or
reviewing.
(d) Party. Unless otherwise ordered by the Commission, the following persons
are parties:
(1) In a proceeding not designated for hearing, any person who files an
application, waiver request, petition, motion, request for a declaratory
ruling, or other filing seeking affirmative relief (including a Freedom of
Information Act request), and any person (other than an individual viewer or
listener filing comments regarding a pending broadcast application or
members of Congress or their staffs or branches of the federal government or
their staffs) filing a written submission referencing and regarding such
pending filing which is served on the filer, or, in the case of an
application, any person filing a mutually exclusive application;
Note 1 to paragraph(d)(1): Persons who file mutually exclusive applications
for services that the Commission has announced will be subject to
competitive bidding or lotteries shall not be deemed parties with respect to
each others' applications merely because their applications are mutually
exclusive. Therefore, such applicants may make presentations to the
Commission about their own applications provided that no one has become a
party with respect to their application by other means, e.g., by filing a
petition or other opposition against the applicant or an associated waiver
request, if the petition or opposition has been served on the applicant.
(2) Any person who files a complaint or request to revoke a license or other
authorization or for an order to show cause which shows that the complainant
has served it on the subject of the complaint or which is a formal complaint
under 47 U.S.C. 208 and §1.721 of this chapter or 47 U.S.C. 255 and either
§§6.21 or 7.21 of this chapter, and the person who is the subject of such a
complaint or request that shows service or is a formal complaint under 47
U.S.C. 208 and §1.721 of this chapter or 47 U.S.C. 255 and either §§6.21 or
7.21 of this chapter;
(3) The subject of an order to show cause, hearing designation order, notice
of apparent liability, or similar notice or order, or petition for such
notice or order;
(4) In a proceeding designated for hearing, any person who has been given
formal party status; and
(5) In an informal rulemaking proceeding conducted under section 553 of the
Administrative Procedure Act (other than a proceeding for the allotment of a
broadcast channel) or a proceeding before a Joint Board or before the
Commission to consider the recommendation of a Joint Board, members of the
general public after the issuance of a notice of proposed rulemaking or
other order as provided under §1.1206(a) (1) or (2).
(6) In an informal rulemaking proceeding conducted under section 553 of the
Administrative Procedure Act (other than a proceeding for the allotment of a
broadcast channel) or a proceeding before a Joint Board or before the
Commission to consider the recommendation of a Joint Board, members of the
general public after the issuance of a notice of proposed rulemaking or
other order as provided under §1.1206(a) (1) or (2).
Note 2 to paragraph(d): To be deemed a party, a person must make the
relevant filing with the Secretary, the relevant Bureau or Office, or the
Commission as a whole. Written submissions made only to the Chairman or
individual Commissioners will not confer party status.
Note 3 to paragraph(d): The fact that a person is deemed a party for
purposes of this subpart does not constitute a determination that such
person has satisfied any other legal or procedural requirements, such as the
operative requirements for petitions to deny or requirements as to
timeliness. Nor does it constitute a determination that such person has any
other procedural rights, such as the right to intervene in hearing
proceedings. The Commission or the staff may also determine in particular
instances that persons who qualify as “parties” under §1.1202(d) should
nevertheless not be deemed parties for purposes of this subpart.
Note 4 to paragraph(d): Individual listeners or viewers submitting comments
regarding a pending broadcast application pursuant to §1.1204(a)(8) will not
become parties simply by service of the comments. The Media Bureau may, in
its discretion, make such a commenter a party, if doing so would be
conducive to the Commission's consideration of the application or would
otherwise be appropriate.
Note 5 to paragraph(d): A member of Congress or his or her staff, or other
agencies or branches of the federal government or their staffs will not
become a party by service of a written submission regarding a pending
proceeding that has not been designated for hearing unless the submission
affirmatively seeks and warrants grant of party status.
(e) Matter designated for hearing. Any matter that has been designated for
hearing before an administrative law judge or which is otherwise designated
for hearing in accordance with procedures in 5 U.S.C. 554.
[ 62 FR 15854 , Apr. 3, 1997, as amended at 64 FR 68947 , Dec. 9, 1999; 64 FR 72571 , Dec. 28, 1999; 65 FR 56261 , Sept. 18, 2000; 67 FR 13224 , Mar. 21,
2002]
Sunshine Period Prohibition
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§ 1.1203 Sunshine period prohibition.
top
(a) With respect to any Commission proceeding, all presentations to
decisionmakers concerning matters listed on a Sunshine Agenda, whether ex
parte or not, are prohibited during the period prescribed in paragraph (b)
of this section unless:
(1) The presentation is exempt under §1.1204(a);
(2) The presentation relates to settlement negotiations and otherwise
complies with any ex parte restrictions in this subpart;
(3) The presentation occurs in the course of a widely attended speech or
panel discussion and concerns a Commission action in an exempt or a
permit-but-disclose proceeding that has been adopted (not including private
presentations made on the site of a widely attended speech or panel
discussion); or
(4) The presentation is made by a member of Congress or his or her staff, or
by other agencies or branches of the Federal government or their staffs in a
proceeding exempt under §1.1204 or subject to permit-but-disclose
requirements under §1.1206. If the presentation is of substantial
significance and clearly intended to affect the ultimate decision, the
presentation (or, if oral, a summary of the presentation) must be placed in
the record of the proceeding by Commission staff or by the presenter in
accordance with the procedures set forth in §1.1206(b).
(b) The prohibition set forth in paragraph (a) of this section applies from
the release of a public notice that a matter has been placed on the Sunshine
Agenda until the Commission:
(1) Releases the text of a decision or order relating to the matter;
(2) Issues a public notice stating that the matter has been deleted from the
Sunshine Agenda; or
(3) Issues a public notice stating that the matter has been returned to the
staff for further consideration, whichever occurs first.
[ 62 FR 15855 , Apr. 3, 1997, as amended at 64 FR 68947 , Dec. 9, 1999]
General Exemptions
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§ 1.1204 Exempt ex parte presentations and proceedings.
top
(a) Exempt ex parte presentations. The following types of presentations are
exempt from the prohibitions in restricted proceedings (§1.1208), the
disclosure requirements in permit-but-disclose proceedings (§1.1206), and
the prohibitions during the Sunshine Agenda period prohibition (§1.1203):
(1) The presentation is authorized by statute or by the Commission's rules
to be made without service, see, e.g., §1.333(d), or involves the filing of
required forms;
(2) The presentation is made by or to the General Counsel and his or her
staff and concerns judicial review of a matter that has been decided by the
Commission;
(3) The presentation directly relates to an emergency in which the safety of
life is endangered or substantial loss of property is threatened, provided
that, if not otherwise submitted for the record, Commission staff promptly
places the presentation or a summary of the presentation in the record and
discloses it to other parties as appropriate.
(4) The presentation involves a military or foreign affairs function of the
United States or classified security information;
(5) The presentation is to or from an agency or branch of the Federal
Government or its staff and involves a matter over which that agency or
branch and the Commission share jurisdiction provided that, any new factual
information obtained through such a presentation that is relied on by the
Commission in its decision-making process will, if not otherwise submitted
for the record, be disclosed by the Commission no later than at the time of
the release of the Commission's decision;
(6) The presentation is to or from the United States Department of Justice
or Federal Trade Commission and involves a telecommunications competition
matter in a proceeding which has not been designated for hearing and in
which the relevant agency is not a party or commenter (in an informal
rulemaking or Joint board proceeding) provided that, any new factual
information obtained through such a presentation that is relied on by the
Commission in its decision-making process will be disclosed by the
Commission no later than at the time of the release of the Commission's
decision;
Note 1 to paragraph(a): Under paragraphs (a)(5) and (a)(6) of this section,
information will be relied on and disclosure will be made only after advance
coordination with the agency involved in order to ensure that the agency
involved retains control over the timing and extent of any disclosure that
may have an impact on that agency's jurisdictional responsibilities. If the
agency involved does not wish such information to be disclosed, the
Commission will not disclose it and will disregard it in its decision-making
process, unless it fits within another exemption not requiring disclosure
(e.g., foreign affairs). The fact that an agency's views are disclosed under
paragraphs (a)(5) and (a)(6) does not preclude further discussions pursuant
to, and in accordance with, the exemption.
(7) The presentation is between Commission staff and an advisory
coordinating committee member with respect to the coordination of frequency
assignments to stations in the private land mobile services or fixed
services as authorized by 47 U.S.C. 332;
(8) The presentation is a written presentation made by a listener or viewer
of a broadcast station who is not a party under §1.1202(d)(1), and the
presentation relates to a pending application that has not been designated
for hearing for a new or modified broadcast station or license, for renewal
of a broadcast station license or for assignment or transfer of control of a
broadcast permit or license;
(9) The presentation is made pursuant to an express or implied promise of
confidentiality to protect an individual from the possibility of reprisal,
or there is a reasonable expectation that disclosure would endanger the life
or physical safety of an individual;
(10) The presentation is requested by (or made with the advance approval of)
the Commission or staff for the clarification or adduction of evidence, or
for resolution of issues, including possible settlement, subject to the
following limitations:
(i) This exemption does not apply to restricted proceedings designated for
hearing;
(ii) In restricted proceedings not designated for hearing, any new written
information elicited from such request or a summary of any new oral
information elicited from such request shall promptly be served by the
person making the presentation on the other parties to the proceeding.
Information relating to how a proceeding should or could be settled, as
opposed to new information regarding the merits, shall not be deemed to be
new information for purposes of this section. The Commission or its staff
may waive the service requirement if service would be too burdensome because
the parties are numerous or because the materials relating to such
presentation are voluminous. If the service requirement is waived, copies of
the presentation or summary shall be placed in the record of the proceeding
and the Commission or its staff shall issue a public notice which states
that copies of the presentation or summary are available for inspection. The
Commission or its staff may determine that service or public notice would
interfere with the effective conduct of an investigation and dispense with
the service and public notice requirements;
(iii) If the presentation is made in a proceeding subject to
permit-but-disclose requirements, disclosure of any new written information
elicited from such request or a summary of any new oral information elicited
from such request must be made in accordance with the requirements of
§1.1206(b), provided, however, that the Commission or its staff may
determine that disclosure would interfere with the effective conduct of an
investigation and dispense with the disclosure requirement. As in paragraph
(a)(10)(ii) of this section, information relating to how a proceeding should
or could be settled, as opposed to new information regarding the merits,
shall not be deemed to be new information for purposes of this section;
Note 2 to paragraph(a): If the Commission or its staff dispenses with the
service or notice requirement to avoid interference with an investigation, a
determination will be made in the discretion of the Commission or its staff
as to when and how disclosure should be made if necessary. See Amendment of
Subpart H, Part I, 2 FCC Rcd 6053, 6054 ¶¶10–14 (1987).
(iv) If the presentation is made in a proceeding subject to the Sunshine
period prohibition, disclosure must be made in accordance with the
requirements of §1.1206(b) or by other adequate means of notice that the
Commission deems appropriate;
(v) In situations where new information regarding the merits is disclosed
during settlement discussions, and the Commission or staff intends that the
product of the settlement discussions will be disclosed to the other parties
or the public for comment before any action is taken, the Commission or
staff in its discretion may defer disclosure of such new information until
comment is sought on the settlement proposal or the settlement discussions
are terminated.
(11) The presentation is an oral presentation in a restricted proceeding not
designated for hearing requesting action by a particular date or giving
reasons that a proceeding should be expedited other than the need to avoid
administrative delay. A detailed summary of the presentation shall promptly
be filed in the record and served by the person making the presentation on
the other parties to the proceeding, who may respond in support or
opposition to the request for expedition, including by oral ex parte
presentation, subject to the same service requirement.
(12) The presentation is between Commission staff and:
(i) The administrator of the interstate telecommunications relay services
fund relating to administration of the telecommunications relay services
fund pursuant to 47 U.S.C. 225;
(ii) The North American Numbering Plan Administrator or the North American
Numbering Plan Billing and Collection Agent relating to the administration
of the North American Numbering Plan pursuant to 47 U.S.C. 251(e);
(iii) The Universal Service Administrative Company relating to the
administration of universal service support mechanisms pursuant to 47 U.S.C.
254; or
(iv) The Number Portability Administrator relating to the administration of
local number portability pursuant to 47 U.S.C. 251(b)(2) and (e); provided
that the relevant administrator has not filed comments or otherwise
participated as a party in the proceeding.
(b) Exempt proceedings. Unless otherwise provided by the Commission or the
staff pursuant to §1.1200(a), ex parte presentations to or from Commission
decision-making personnel are permissible and need not be disclosed with
respect to the following proceedings, which are referred to as “exempt”
proceedings:
(1) A notice of inquiry proceeding;
(2) A petition for rulemaking, except for a petition requesting the
allotment of a broadcast channel (see also §1.1206(a)(1)), or other request
that the Commission modify its rules, issue a policy statement or issue an
interpretive rule, or establish a Joint Board;
(3) A tariff proceeding (including directly associated waiver requests or
requests for special permission) prior to it being set for investigation
(see also §1.1206(a)(4));
(4) A proceeding relating to prescription of common carrier depreciation
rates under section 220(b) of the Communications Act prior to release of a
public notice of specific proposed depreciation rates (see also
§1.1206(a)(9));
(5) An informal complaint proceeding under 47 U.S.C. 208 and §1.717 of this
chapter or 47 U.S.C. 255 and either §§6.17 or 7.17 of this chapter; and
(6) A complaint against a cable operator regarding its rates that is not
filed on the standard complaint form required by §76.951 of this chapter
(FCC Form 329).
Notes 1–3 to paragraph(b): [Reserved]
Note 4 to paragraph(b): In the case of petitions for rulemaking that seek
Commission preemption of state or local regulatory authority, the petitioner
must serve the original petition on any state or local government, the
actions of which are specifically cited as a basis for requesting
preemption. Service should be made on those bodies within the state or local
governments that are legally authorized to accept service of legal documents
in a civil context. Such pleadings that are not served will be dismissed
without consideration as a defective pleading and treated as a violation of
the ex parte rules unless the Commission determines that the matter should
be entertained by making it part of the record under §1.1212(d) and the
parties are so informed.
[ 62 FR 15855 , Apr. 3, 1997, as amended at 64 FR 63251 , Nov. 19, 1999; 64 FR 68948 , Dec. 9, 1999]
Non-Restricted Proceedings
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§ 1.1206 Permit-but-disclose proceedings.
top
(a) Unless otherwise provided by the Commission or the staff pursuant to
§1.1200(a), until the proceeding is no longer subject to administrative
reconsideration or review or to judicial review, ex parte presentations
(other than ex parte presentations exempt under §1.1204(a)) to or from
Commission decision-making personnel are permissible in the following
proceedings, which are referred to as permit-but-disclose proceedings,
provided that ex parte presentations to Commission decision-making personnel
are disclosed pursuant to paragraph (b) of this section:
Note 1 to paragraph(a): In the case of petitions for declaratory ruling that
seek Commission preemption of state or local regulatory authority and
petitions for relief under 47 U.S.C. 332(c)(7)(B)(v), the petitioner must
serve the original petition on any state or local government, the actions of
which are specifically cited as a basis for requesting preemption. Service
should be made on those bodies within the state or local governments that
are legally authorized to accept service of legal documents in a civil
context. Such pleadings that are not served will be dismissed without
consideration as a defective pleading and treated as a violation of the ex
parte rules unless the Commission determines that the matter should be
entertained by making it part of the record under §1.1212(d) and the parties
are so informed.
(1) An informal rulemaking proceeding conducted under section 553 of the
Administrative Procedure Act other than a proceeding for the allotment of a
broadcast channel, upon release of a Notice of Proposed Rulemaking (see also
§1.1204(b)(2));
(2) A proceeding involving a rule change, policy statement or interpretive
rule adopted without a Notice of Proposed Rule Making upon release of the
order adopting the rule change, policy statement or interpretive rule;
(3) A declaratory ruling proceeding;
(4) A tariff proceeding which has been set for investigation under section
204 or 205 of the Communications Act (including directly associated waiver
requests or requests for special permission) (see also §1.1204(b)(4));
(5) Unless designated for hearing, a proceeding under section 214(a) of the
Communications Act that does not also involve applications under Title III
of the Communications Act (see also §1.1208);
(6) Unless designated for hearing, a proceeding involving an application for
a Cable Landing Act license that does not also involve applications under
Title III of the Communications Act (see also §1.1208);
(7) A proceeding involving a request for information filed pursuant to the
Freedom of Information Act;
Note 2 to paragraph(a): Where the requested information is the subject of a
request for confidentiality, the person filing the request for
confidentiality shall be deemed a party.
(8) A proceeding before a Joint Board or a proceeding before the Commission
involving a recommendation from a Joint Board;
(9) A proceeding conducted pursuant to section 220(b) of the Communications
Act for prescription of common carrier depreciation rates upon release of a
public notice of specific proposed depreciation rates (see also
§1.1204(b)(4));
(10) A proceeding to prescribe a rate of return for common carriers under
section 205 of the Communications Act; and
(11) A cable rate complaint proceeding pursuant to section 623(c) of the
Communications Act where the complaint is filed on FCC Form 329.
(12) A modification request filed pursuant to §64.1001 of this chapter;
(13) Applications by Bell Operating Companies to provide in-region,
interLATA services pursuant to §271(d) of the Communications Act; and
(14) Petitions for Commission preemption of authority to review
interconnection agreements under §252(e)(5) of the Communications Act and
petitions for preemption under §253 of the Communications Act.
Note 3 to paragraph(a): In a permit-but-disclose proceeding involving only
one “party,” as defined in §1.1202(d) of this section, the party and the
Commission may freely make presentations to each other and need not comply
with the disclosure requirements of paragraph (b) of this section.
(b) The following disclosure requirements apply to ex parte presentations in
permit but disclose proceedings:
(1) Written presentations. A person who makes a written ex parte
presentation subject to this section shall, no later than the next business
day after the presentation, submit two copies of the presentation to the
Commission's secretary under separate cover for inclusion in the public
record. The presentation (and cover letter) shall clearly identify the
proceeding to which it relates, including the docket number, if any, shall
indicate that two copies have been submitted to the Secretary, and must be
labeled as an ex parte presentation. If the presentation relates to more
than one proceeding, two copies shall be filed for each proceeding.
Alternatively, in rulemaking proceedings governed by §1.49(f), the person
making the presentation may file one copy of the presentation
electronically; no additional paper copies need to be filed.
(2) Oral presentations. A person who makes an oral ex parte presentation
subject to this section that presents data or arguments not already
reflected in that person's written comments, memoranda or other filings in
that proceeding shall, no later than the next business day after the
presentation, submit to the Commission's Secretary, an original and one copy
of a memorandum which summarizes the new data or arguments. Except in
proceedings subject to §1.49(f) in which pleadings are filed electronically,
a copy of the memorandum must also be submitted to the Commissioners or
Commission employees involved in the oral presentation. In proceedings
governed by §1.49(f), the person making the presentation may, alternatively,
electronically file one copy of the memorandum, which will be available to
Commissioners and Commission employees involved in the presentation through
the Commission's electronic comment filing system. Memoranda must contain a
summary of the substance of the ex parte presentation and not merely a
listing of the subjects discussed. More than a one or two sentence
description of the views and arguments presented is generally required. The
memorandum (and cover letter) shall clearly identify the proceeding to which
it relates, including the docket number, if any, shall indicate that an
original and one copy have been submitted to the Secretary or that one copy
has been filed electronically, and must be labeled as an ex parte
presentation. If the presentation relates to more than one proceeding, two
copies of the memorandum (or an original and one copy) shall be filed for
each proceeding.
Note 1 to paragraph(b): Where, for example, presentations occur in the form
of discussion at a widely attended meeting, preparation of a memorandum as
specified in the rule might be cumbersome. Under these circumstances, the
rule may be satisfied by submitting a transcript or tape recording of the
discussion as an alternative to a memorandum.
(3) Notwithstanding paragraphs (b)(1) and (b)(2) of this section, in
permit-but-disclose proceedings presentations made by members of Congress or
their staffs or by an agency or branch of the Federal Government or its
staff shall be treated as ex parte presentations only if the presentations
are of substantial significance and clearly intended to affect the ultimate
decision. The Commission staff shall prepare a written summary of any such
oral presentations and place them in the record in accordance with paragraph
(b)(2) of this section and place any such written presentations in the
record in accordance with paragraph (b)(1) of this section.
(4) Notice of ex parte presentations. The Commission's Secretary or, in the
case of non-docketed proceedings, the relevant Bureau or Office shall place
in the public file or record of the proceeding written ex parte
presentations and memoranda reflecting oral ex parte presentations. The
Secretary shall issue a public notice listing any written ex parte
presentations or written summaries of oral ex parte presentations received
by his or her office relating to any permit-but-disclose proceeding. Such
public notices should generally be released at least twice per week.
Note 2 to paragraph(b): Interested persons should be aware that some ex
parte filings, for example, those not filed in accordance with the
requirements of this paragraph (b), might not be placed on the referenced
public notice. All ex parte presentations and memoranda filed under this
section will be available for public inspection in the public file or record
of the proceeding, and parties wishing to ensure awareness of all filings
should review the public file or record.
Note 3 to paragraph(b): As a matter of convenience, the Secretary may also
list on the referenced public notices materials, even if not ex parte
presentations, that are filed after the close of the reply comment period
or, if the matter is on reconsideration, the reconsideration reply comment
period.
[ 62 FR 15856 , Apr. 3, 1997, as amended at 63 FR 24126 , May 1, 1998; 64 FR 68948 , Dec. 9, 1999; 66 FR 3501 , Jan. 16, 2001]
Restricted Proceedings
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§ 1.1208 Restricted proceedings.
top
Unless otherwise provided by the Commission or its staff pursuant to
§1.1200(a) of this section, ex parte presentations (other than ex parte
presentations exempt under §1.1204(a) of this section) to or from Commission
decision-making personnel are prohibited in all proceedings not listed as
exempt in §1.1204(b) or permit-but-disclose in §1.1206(a) of this section
until the proceeding is no longer subject to administrative reconsideration
or review or judicial review. Proceedings in which ex parte presentations
are prohibited, referred to as “restricted” proceedings, include, but are
not limited to, all proceedings that have been designated for hearing,
proceedings involving amendments to the broadcast table of allotments,
applications for authority under Title III of the Communications Act, and
all waiver proceedings (except for those directly associated with tariff
filings).
Note 1 to §1.1208: In a restricted proceeding involving only one “party,” as
defined in §1.1202(d), the party and the Commission may freely make
presentations to each other because there is no other party to be served or
with a right to have an opportunity to be present. See §1.1202(b).
Therefore, to determine whether presentations are permissible in a
restricted proceeding without service or notice and an opportunity for other
parties to be present the definition of a “party” should be consulted.
Examples: After the filing of an uncontested application or waiver
request, the applicant or other filer would be the sole party to the
proceeding. The filer would have no other party to serve with or give notice
of any presentations to the Commission, and such presentations would
therefore not be “ex parte presentations” as defined by §1.1202(b) and would
not be prohibited. On the other hand, in the example given, because the
filer is a party, a third person who wished to make a presentation to the
Commission concerning the application or waiver request would have to serve
or notice the filer. Further, once the proceeding involved additional
“parties” as defined by §1.1202(d) (e.g., an opponent of the filer who
served the opposition on the filer), the filer and other parties would have
to serve or notice all other parties.
Note 2 to §1.1208: Consistent with §1.1200(a), the Commission or its staff
may determine that a restricted proceeding not designated for hearing
involves primarily issues of broadly applicable policy rather than the
rights and responsibilities of specific parties and specify that the
proceeding will be conducted in accordance with the provisions of §1.1206
governing permit-but-disclose proceedings.
[ 62 FR 15857 , Apr. 3, 1997, as amended at 64 FR 68948 , Dec. 9, 1999]
Prohibition on Solicitation of Presentations
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§ 1.1210 Prohibition on solicitation of presentations.
top
No person shall solicit or encourage others to make any improper
presentation under the provisions of this section.
[ 64 FR 68949 , Dec. 9, 1999]
Procedures for Handling of Prohibited Ex Parte Presentations
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§ 1.1212 Procedures for handling of prohibited ex parte presentations.
top
(a) Commission personnel who believe that an oral presentation which is
being made to them or is about to be made to them is prohibited shall
promptly advise the person initiating the presentation that it is prohibited
and shall terminate the discussion.
(b) Commission personnel who receive oral ex parte presentations which they
believe are prohibited shall forward to the Office of General Counsel a
statement containing the following information:
(1) The name of the proceeding;
(2) The name and address of the person making the presentation and that
person's relationship (if any) to the parties to the proceeding;
(3) The date and time of the presentation, its duration, and the
circumstances under which it was made;
(4) A full summary of the substance of the presentation;
(5) Whether the person making the presentation persisted in doing so after
being advised that the presentation was prohibited; and
(6) The date and time that the statement was prepared.
(c) Commission personnel who receive written ex parte presentations which
they believe are prohibited shall forward them to the Office of General
Counsel. If the circumstances in which the presentation was made are not
apparent from the presentation itself, a statement describing those
circumstances shall be submitted to the Office of General Counsel with the
presentation.
(d) Prohibited written ex parte presentations and all documentation relating
to prohibited written and oral ex parte presentations shall be placed in a
public file which shall be associated with but not made part of the record
of the proceeding to which the presentations pertain. Such materials may be
considered in determining the merits of a restricted proceeding only if they
are made part of the record and the parties are so informed.
(e) If the General Counsel determines that an ex parte presentation or
presentation during the Sunshine period is prohibited by this subpart, he or
she shall notify the parties to the proceeding that a prohibited
presentation has occurred and shall serve on the parties copies of the
presentation (if written) and any statements describing the circumstances of
the presentation. Service by the General Counsel shall not be deemed to cure
any violation of the rules against prohibited ex parte presentations.
(f) If the General Counsel determines that service on the parties would be
unduly burdensome because the parties to the proceeding are numerous, he or
she may issue a public notice in lieu of service. The public notice shall
state that a prohibited presentation has been made and may also state that
the presentation and related materials are available for public inspection.
(g) The General Counsel shall forward a copy of any statement describing the
circumstances in which the prohibited ex parte presentation was made to the
person who made the presentation. Within ten days thereafter, the person who
made the presentation may file with the General Counsel a sworn declaration
regarding the presentation and the circumstances in which it was made. The
General Counsel may serve copies of the sworn declaration on the parties to
the proceeding.
(h) Where a restricted proceeding precipitates a substantial amount of
correspondence from the general public, the procedures in paragraphs (c)
through (g) of this section will not be followed with respect to such
correspondence. The correspondence will be placed in a public file and be
made available for public inspection.
[ 62 FR 15857 , Apr. 3, 1997]
§ 1.1214 Disclosure of information concerning violations of this subpart.
top
Any party to a proceeding or any Commission employee who has substantial
reason to believe that any violation of this subpart has been solicited,
attempted, or committed shall promptly advise the Office of General Counsel
in writing of all the facts and circumstances which are known to him or her.
[ 62 FR 15858 , Apr. 3, 1997]
Sanctions
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§ 1.1216 Sanctions.
top
(a) Parties. Upon notice and hearing, any party to a proceeding who directly
or indirectly violates or causes the violation of any provision of this
subpart, or who fails to report the facts and circumstances concerning any
such violation as required by this subpart, may be disqualified from further
participation in that proceeding. In proceedings other than a rulemaking, a
party who has violated or caused the violation of any provision of this
subpart may be required to show cause why his or her claim or interest in
the proceeding should not be dismissed, denied, disregarded, or otherwise
adversely affected. In any proceeding, such alternative or additional
sanctions as may be appropriate may also be imposed.
(b) Commission personnel. Commission personnel who violate provisions of
this subpart may be subject to appropriate disciplinary or other remedial
action as provided in part 19 of this chapter.
(c) Other persons. Such sanctions as may be appropriate under the
circumstances shall be imposed upon other persons who violate the provisions
of this subpart.
[ 62 FR 15858 , Apr. 3, 1997]
Subpart I—Procedures Implementing the National Environmental Policy Act of 1969
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Source: 51 FR 15000 , Apr. 22, 1986, unless otherwise noted.
§ 1.1301 Basis and purpose.
top
The provisions of this subpart implement Subchapter I of the National
Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321–4335.
§ 1.1302 Cross-reference; Regulations of the Council on Environmental
Quality.
top
A further explanation regarding implementation of the National Environmental
Policy Act is provided by the regulations issued by the Council on
Environmental Quality, 40 CFR 1500–1508.28.
§ 1.1303 Scope.
top
The provisions of this subpart shall apply to all Commission actions that
may or will have a significant impact on the quality of the human
environment. To the extent that other provisions of the Commission's rules
and regulations are inconsistent with the subpart, the provisions of this
subpart shall govern.
[ 55 FR 20396 , May 16, 1990]
§ 1.1304 Information and assistance.
top
For general information and assistance concerning the provisions of this
subpart, the Office of General Counsel may be contacted, (202) 632–6990. For
more specific information, the Bureau responsible for processing a specific
application should be contacted.
§ 1.1305 Actions which normally will have a significant impact upon the
environment, for which Environmental Impact Statements must be prepared.
top
Any Commission action deemed to have a significant effect upon the quality
of the human environment requires the preparation of a Draft Environmental
Impact Statement (DEIS) and Final Environmental Impact Statement (FEIS)
(collectively referred to as EISs) ( see §§1.1314, 1.1315 and 1.1317). The
Commission has reviewed representative actions and has found no common
pattern which would enable it to specify actions that will thus
automatically require EISs.
Note: Our current application forms refer applicants to §1.1305 to determine
if their proposals are such that the submission of environmental information
is required ( see §1.1311). Until the application forms are revised to
reflect our new environmental rules, applicants should refer to §1.1307.
Section 1.1307 now delineates those actions for which applicants must submit
environmental information.
§ 1.1306 Actions which are categorically excluded from environmental
processing.
top
(a) Except as provided in §1.1307 (c) and (d), Commission actions not
covered by §1.1307 (a) and (b) are deemed individually and cumulatively to
have no significant effect on the quality of the human environment and are
categorically excluded from environmental processing.
(b) Specifically, any Commission action with respect to any new application,
or minor or major modifications of existing or authorized facilities or
equipment, will be categorically excluded, provided such proposals do not:
(1) Involve a site location specified under §1.1307(a) (1)–(7), or
(2) Involve high intensity lighting under §1.1307(a)(8).
(3) Result in human exposure to radiofrequency radiation in excess of the
applicable safety standards specified in §1.1307(b).
Note 1: The provisions of §1.1307(a) of this part requiring the preparation
of EAs do not encompass the mounting of antenna(s) on an existing building
or antenna tower unless §1.1307(a)(4) of this part is applicable. Such
antennas are subject to §1.1307(b) of this part and require EAs if their
construction would result in human exposure to radiofrequency radiation in
excess of the applicable health and safety guidelines cited in §1.1307(b) of
this part. The provisions of §1.1307 (a) and (b) of this part do not
encompass the installation of aerial wire or cable over existing aerial
corridors of prior or permitted use or the underground installation of wire
or cable along existing underground corridors of prior or permitted use,
established by the applicant or others. The use of existing buildings,
towers or corridors is an environmentally desirable alternative to the
construction of new facilities and is encouraged. The provisions of
§1.1307(a) and (b) of this part do not encompass the construction of new
submarine cable systems.
Note 2: The specific height of an antenna tower or supporting structure, as
well as the specific diameter of a satellite earth station, in and of
itself, will not be deemed sufficient to warrant environmental processing,
see §§1.1307 and 1.1308.
Note 3: The construction of an antenna tower or supporting structure in an
established “antenna farm”: (i.e., an area in which similar antenna towers
are clustered, whether or not such area has been officially designated as an
antenna farm), will be categorically excluded unless one or more of the
antennas to be mounted on the tower or structure are subject to the
provisions of §1.1307(b) and the additional radiofrequency radiation from
the antenna(s) on the new tower or structure would cause human exposure in
excess of the applicable health and safety guidelines cited in §1.1307(b).
[ 51 FR 15000 , Apr. 22, 1986, as amended at 51 FR 18889 , May 23, 1986; 53 FR 28393 , July 28, 1988; 56 FR 13414 , Apr. 2, 1991; 64 FR 19061 , Apr. 19, 1999]
§ 1.1307 Actions that may have a significant environmental effect, for which
Environmental Assessments (EAs) must be prepared.
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(a) Commission actions with respect to the following types of facilities may
significantly affect the environment and thus require the preparation of EAs
by the applicant (see §§1.1308 and 1.1311) and may require further
Commission environmental processing ( see §§1.1314, 1.1315 and 1.1317):
(1) Facilities that are to be located in an officially designated wilderness
area.
(2) Facilities that are to be located in an officially designated wildlife
preserve.
(3) Facilities that: (i) May affect listed threatened or endangered species
or designated critical habitats; or (ii) are likely to jeopardize the
continued existence of any proposed endangered or threatened species or
likely to result in the destruction or adverse modification of proposed
critical habitats, as determined by the Secretary of the Interior pursuant
to the Endangered Species Act of 1973.
Note: The list of endangered and threatened species is contained in 50 CFR
17.11, 17.22, 222.23(a) and 227.4. The list of designated critical habitats
is contained in 50 CFR 17.95, 17.96 and part 226. To ascertain the status of
proposed species and habitats, inquiries may be directed to the Regional
Director of the Fish and Wildlife Service, Department of the Interior.
(4) Facilities that may affect districts, sites, buildings, structures or
objects, significant in American history, architecture, archeology,
engineering or culture, that are listed, or are eligible for listing, in the
National Register of Historic Places. (See 16 U.S.C. 470w(5); 36 CFR part 60
and 800.) To ascertain whether a proposed action may affect properties that
are listed or eligible for listing in the National Register of Historic
Places, an applicant shall follow the procedures set forth in the rules of
the Advisory Council on Historic Preservation, 36 CFR part 800, as modified
and supplemented by the Nationwide Programmatic Agreement for the
Collocation of Wireless Antennas, Appendix B to Part 1 of this Chapter, and
the Nationwide Programmatic Agreement Regarding the Section 106 National
Historic Preservation Act Review Process, Appendix C to Part 1 of this
Chapter.
(5) Facilities that may affect Indian religious sites.
(6) Facilities to be located in a flood Plain ( See Executive Order 11988.)
(7) Facilities whose construction will involve significant change in surface
features (e.g., wetland fill, deforestation or water diversion). (In the
case of wetlands on Federal property, see Executive Order 11990.)
(8) Antenna towers and/or supporting structures that are to be equipped with
high intensity white lights which are to be located in residential
neighborhoods, as defined by the applicable zoning law.
(b) In addition to the actions listed in paragraph (a) of this section,
Commission actions granting construction permits, licenses to transmit or
renewals thereof, equipment authorizations or modifications in existing
facilities, require the preparation of an Environmental Assessment (EA) if
the particular facility, operation or transmitter would cause human exposure
to levels of radiofrequency radiation in excess of the limits in §§1.1310
and 2.1093 of this chapter. Applications to the Commission for construction
permits, licenses to transmit or renewals thereof, equipment authorizations
or modifications in existing facilities must contain a statement confirming
compliance with the limits unless the facility, operation, or transmitter is
categorically excluded, as discussed below. Technical information showing
the basis for this statement must be submitted to the Commission upon
request. Such compliance statements may be omitted from license applications
for transceivers subject to the certification requirement in §25.129 of this
chapter.
(1) The appropriate exposure limits in §§1.1310 and 2.1093 of this chapter
are generally applicable to all facilities, operations and transmitters
regulated by the Commission. However, a determination of compliance with the
exposure limits in §1.1310 or §2.1093 of this chapter (routine environmental
evaluation), and preparation of an EA if the limits are exceeded, is
necessary only for facilities, operations and transmitters that fall into
the categories listed in table 1, or those specified in paragraph (b)(2) of
this section. All other facilities, operations and transmitters are
categorically excluded from making such studies or preparing an EA, except
as indicated in paragraphs (c) and (d) of this section. For purposes of
table 1, building-mounted antennas means antennas mounted in or on a
building structure that is occupied as a workplace or residence. The term
power in column 2 of table 1 refers to total operating power of the
transmitting operation in question in terms of effective radiated power
(ERP), equivalent isotropically radiated power (EIRP), or peak envelope
power (PEP), as defined in §2.1 of this chapter. For the case of the
Cellular Radiotelephone Service, subpart H of part 22 of this chapter; the
Personal Communications Service, part 24 of this chapter and the Specialized
Mobile Radio Service, part 90 of this chapter, the phrase total power of all
channels in column 2 of table 1 means the sum of the ERP or EIRP of all
co-located simultaneously operating transmitters owned and operated by a
single licensee. When applying the criteria of table 1, radiation in all
directions should be considered. For the case of transmitting facilities
using sectorized transmitting antennas, applicants and licensees should
apply the criteria to all transmitting channels in a given sector, noting
that for a highly directional antenna there is relatively little
contribution to ERP or EIRP summation for other directions.
Table 1—Transmitters, Facilities and Operations Subject to Routine
Environmental Evaluation
Service (title 47 CFR rule part) Evaluation required if:
Experimental Radio Services (part 5) Power > 100 W ERP (164 W EIRP).
Paging and Radiotelephone Service (subpart E of part 22)
Non-building-mounted antennas: height above ground level to lowest point of
antenna < 10 m and power > 1000 W ERP (1640 W EIRP).
Building-mounted antennas: power > 1000 W ERP (1640 W EIRP).
Cellular Radiotelephone Service (subpart H of part 22) Non-building-mounted
antennas: height above ground level to lowest point of antenna < 10 m and
total power of all channels > 1000 W ERP (1640 W EIRP).
Building-mounted antennas: total power of all channels > 1000 W ERP (1640
W EIRP).
Personal Communications Services (part 24) (1) Narrowband PCS (subpart D):
Non-building-mounted antennas: height above ground level to lowest
point of antenna < 10 m and total power of all channels > 1000 W ERP (1640 W
EIRP).
Building-mounted antennas: total power of all channels > 1000 W ERP
(1640 W EIRP).
(2) Broadband PCS (subpart E):
Non-building-mounted antennas: height above ground level to lowest
point of antenna < 10 m and total power of all channels > 2000 W ERP (3280 W
EIRP).
Building-mounted antennas: total power of all channels > 2000 W ERP
(3280 W EIRP).
Satellite Communications Services (part 25) All included.
In addition, for NGSO subscriber equipment, licensees are required to
attach a label to subscriber transceiver antennas that:
(1) provides adequate notice regarding potential radiofrequency safety
hazards, e.g., information regarding the safe minimum separation distance
required between users and transceiver antennas; and
(2) references the applicable FCC-adopted limits for radiofrequency
exposure specified in §1.1310 of this chapter.
Miscellaneous Wireless Communications Services (part 27 except subpart M)
(1) For the 1390–1392 MHz, 1392–1395 MHz, 1432–1435 MHz, 1670–1675 MHz, and
2385–2390 MHz bands:
Non-building-mounted antennas: height above ground level to lowest
point of antenna < 10 m and total power of all channels > 2000 W ERP (3280 W
EIRP).
Building-mounted antennas: total power of all channels > 2000 W ERP
(3280 W EIRP).
(2) For the 698–746 MHz, 746–764 MHz, 776–794 MHz, 2305–2320 MHz, and
2345–2360 MHz bands:
Total power of all channels > 1000 W ERP (1640 W EIRP).
Broadband Radio Service and Educational Broadband Service (subpart M of part
27) Non-building-mounted antennas: height above ground level to lowest point
of antenna < 10 m and power > 1640 W EIRP.
Building-mounted antennas: power > 1640 W EIRP.
BRS and EBS licensees are required to attach a label to subscriber
transceiver or transverter antennas that:
(1) provides adequate notice regarding potential radiofrequency safety
hazards, e.g., information regarding the safe minimum separation distance
required between users and transceiver antennas; and
(2) references the applicable FCC-adopted limits for radiofrequency
exposure specified in §1.1310.
Radio Broadcast Services (part 73) All included.
Experimental Radio, Auxiliary, Special Broadcast and Other Program
Distributional Services (part 74) Subparts A, G, L: power > 100 W ERP.
Stations in the Maritime Services (part 80) Ship earth stations only.
Private Land Mobile Radio Services Paging Operations (subpart P of part 90)
Non-building-mounted antennas: height above ground level to lowest point of
antenna < 10 m and power > 1000 W ERP (1640 W EIRP).
Building-mounted antennas: power > 1000 W ERP (1640 W EIRP).
Private Land Mobile Radio Services Specialized Mobile Radio (subpart S of
part 90) Non-building-mounted antennas: height above ground level to lowest
point of antenna < 10 m and total power of all channels > 1000 W ERP (1640 W
EIRP).
Building-mounted antennas: Total power of all channels > 1000 W ERP (1640
W EIRP).
Amateur Radio Service (part 97) Transmitter output power > levels specified
in §97.13(c)(1) of this chapter.
Local Multipoint Distribution Service (subpart L of part 101) and 24 GHz
(subpart G of part 101) Non-building-mounted antennas: height above ground
level to lowest point of antenna < 10 m and power > 1640 W EIRP.
Building-mounted antennas: power > 1640 W EIRP.
LMDS and 24 GHz Service licensees are required to attach a label to
subscriber transceiver antennas that:
(1) provides adequate notice regarding potential radiofrequency safety
hazards, e.g., information regarding the safe minimum separation distance
required between users and transceiver antennas; and
(2) references the applicable FCC-adopted limits for radiofrequency
exposure specified in §1.1310.
70/80/90 GHz Bands (subpart Q of part 101) Non-building-mounted antennas:
height above ground level to lowest point of antenna < 10 m and power > 1640
W EIRP.
Building-mounted antennas: power > 1640 W EIRP.
Licensees are required to attach a label to transceiver antennas that:
(1) provides adequate notice regarding potential radiofrequency safety
hazards, e.g., information regarding the safe minimum separation distance
required between users and transceiver antennas; and
(2) references the applicable FCC-adopted limits for radiofrequency
exposure specified in §1.1310.
(2) Mobile and portable transmitting devices that operate in the Cellular
Radiotelephone Service, the Personal Communications Services (PCS), the
Satellite Communications Services, the Wireless Communications Service, the
Maritime Services (ship earth stations only), the Specialized Mobile Radio
Service, and the 3650MHz Wireless Broadband Service authorized under Subpart
H of parts 22, 24, 25, 27, 80, and 90 of this chapter are subject to routine
environmental evaluation for RF exposure prior to equipment authorization or
use, as specified in §§2.1091 and 2.1093 of this chapter. Unlicensed PCS,
unlicensed NII and millimeter wave devices are also subject to routine
environmental evaluation for RF exposure prior to equipment authorization or
use, as specified in §§15.253(f), 15.255(g), 15.319(i), and 15.407(f) of
this chapter. Portable transmitting equipment for use in the Wireless
Medical Telemetry Service (WMTS) is subject to routine environment
evaluation as specified in §§2.1093 and 5.1125 of this chapter. Equipment
authorized for use in the Medical Implant Communications Service (MICS) as a
medical implant transmitter (as defined in Appendix 1 to Subpart E of part
95 of this chapter) is subject to routine environmental evaluation for RF
exposure prior to equipment authorization, as specified in §2.1093 of this
chapter by finite difference time domain computational modeling or
laboratory measurement techniques. Where a showing is based on computational
modeling, the Commission retains the discretion to request that specific
absorption rate measurement data be submitted. All other mobile, portable,
and unlicensed transmitting devices are categorically excluded from routine
environmental evaluation for RF exposure under §§2.1091, 2.1093 of this
chapter except as specified in paragraphs (c) and (d) of this section.
(3) In general, when the guidelines specified in §1.1310 are exceeded in an
accessible area due to the emissions from multiple fixed transmitters,
actions necessary to bring the area into compliance are the shared
responsibility of all licensees whose transmitters produce, at the area in
question, power density levels that exceed 5% of the power density exposure
limit applicable to their particular transmitter or field strength levels
that, when squared, exceed 5% of the square of the electric or magnetic
field strength limit applicable to their particular transmitter. Owners of
transmitter sites are expected to allow applicants and licensees to take
reasonable steps to comply with the requirements contained in §1.1307(b)
and, where feasible, should encourage co-location of transmitters and common
solutions for controlling access to areas where the RF exposure limits
contained in §1.1310 might be exceeded.
(i) Applicants for proposed (not otherwise excluded) transmitters,
facilities or modifications that would cause non-compliance with the limits
specified in §1.1310 at an accessible area previously in compliance must
submit an EA if emissions from the applicant's transmitter or facility would
result, at the area in question, in a power density that exceeds 5% of the
power density exposure limit applicable to that transmitter or facility or
in a field strength that, when squared, exceeds 5% of the square of the
electric or magnetic field strength limit applicable to that transmitter or
facility.
(ii) Renewal applicants whose (not otherwise excluded) transmitters or
facilities contribute to the field strength or power density at an
accessible area not in compliance with the limits specified in §1.1310 must
submit an EA if emissions from the applicant's transmitter or facility
results, at the area in question, in a power density that exceeds 5% of the
power density exposure limit applicable to that transmitter or facility or
in a field strength that, when squared, exceeds 5% of the square of the
electric or magnetic field strength limit applicable to that transmitter of
facility.
(4) Transition Provisions. Applications filed with the Commission prior to
October 15, 1997 (or January 1, 1998, for the Amateur Radio Service only),
for construction permits, licenses to transmit or renewals thereof,
modifications in existing facilities or other authorizations or renewals
thereof require the preparation of an Environmental Assessment if the
particular facility, operation or transmitter would cause human exposure to
levels of radiofrequency radiation that are in excess of the requirements
contained in paragraphs (b)(4)(i) through (b)(4)(iii) of this section. In
accordance with §1.1312, if no new application or Commission action is
required for a licensee to construct a new facility or physically modify an
existing facility, e.g., geographic area licensees, and construction begins
on or after October 15, 1997, the licensee will be required to prepare an
Environmental Assessment if construction or modification of the facility
would not comply with the provisions of paragraph (b)(1) of this section.
These transition provisions do not apply to applications for equipment
authorization or use for mobile, portable and unlicensed devices as
specified in paragraph (b)(2) of this section.
(i) For facilities and operations licensed or authorized under parts 5, 21
(subpart K), 25, 73, 74 (subparts A, G, I, and L), and 80 of this chapter,
the “Radio Frequency Protection Guides” recommended in “American National
Standard Safety Levels with Respect to Human Exposure to Radio Frequency
Electromagnetic Fields, 300 kHz to 100 GHz”, (ANSI C95.1–1982), issued by
the American National Standards Institute (ANSI) and copyright 1982 by the
Institute of Electrical and Electronics Engineers, Inc., New York, New York
shall apply. With respect to subpart K of part 21 and subpart I of part 74
of this chapter, these requirements apply only to multipoint distribution
service and instructional television fixed service stations transmitting
with an equivalent isotropically radiated power (EIRP) in excess of 200
watts. With respect to subpart L of part 74 of this chapter, these
requirements apply only to FM booster and translator stations transmitting
with an effective radiated power (ERP) in excess of 100 watts. With respect
to part 80 of this chapter, these requirements apply only to ship earth
stations.
(ii) For facilities and operations licensed or authorized under part 24 of
this chapter, licensees and manufacturers are required to ensure that their
facilities and equipment comply with IEEE C95.1–1991 (ANSI/IEEE C95.1–1992),
“Safety Levels With Respect to Human Exposure to Radio Frequency
Electromagnetic Fields, 3 kHz to 300 GHz.” Measurement methods are specified
in IEEE C95.3–1991, “Recommended Practice for the Measurement of Potentially
Hazardous Electromagnetic Fields—RF and Microwave.” Copies of these
standards are available from IEEE Standards Board, 445 Hoes Lane, P.O. Box
1331, Piscataway, NJ 08855–1331. Telephone: 1–800–678–4333. The limits for
both “controlled” and “uncontrolled” environments, as defined by IEEE
C95.1–1991, will apply to all PCS base and mobile stations, as appropriate.
(iii) Applications for all other types of facilities and operations are
categorically excluded from routine RF radiation evaluation except as
provided in paragraphs (c) and (d) of this section.
(5) Existing transmitting facilities, devices and operations: All existing
transmitting facilities, operations and devices regulated by the Commission
must be in compliance with the requirements of paragraphs (b)(1) through
(b)(3) of this section by September 1, 2000, or, if not in compliance, file
an Environmental Assessment as specified in §1.1311.
(c) If an interested person alleges that a particular action, otherwise
categorically excluded, will have a significant environmental effect, the
person shall submit to the Bureau responsible for processing that action a
written petition setting forth in detail the reasons justifying or
circumstances necessitating environmental consideration in the
decision-making process. ( See §1.1313). The Bureau shall review the
petition and consider the environmental concerns that have been raised. If
the Bureau determines that the action may have a significant environmental
impact, the Bureau will require the applicant to prepare an EA ( see
§§1.1308 and 1.1311), which will serve as the basis for the determination to
proceed with or terminate environmental processing.
(d) If the Bureau responsible for processing a particular action, otherwise
categorically excluded, determines that the proposal may have a significant
environmental impact, the Bureau, on its own motion, shall require the
applicant to submit an EA. The Bureau will review and consider the EA as in
paragraph (c) of this section.
(e) No State or local government or instrumentality thereof may regulate the
placement, construction, and modification of personal wireless service
facilities on the basis of the environmental effects of radio frequency
emissions to the extent that such facilities comply with the regulations
contained in this chapter concerning the environmental effects of such
emissions. For purposes of this paragraph:
(1) The term personal wireless service means commercial mobile services,
unlicensed wireless services, and common carrier wireless exchange access
services;
(2) The term personal wireless service facilities means facilities for the
provision of personal wireless services;
(3) The term unlicensed wireless services means the offering of
telecommunications services using duly authorized devices which do not
require individual licenses, but does not mean the provision of
direct-to-home satellite services; and
(4) The term direct-to-home satellite services means the distribution or
broadcasting of programming or services by satellite directly to the
subscriber's premises without the use of ground receiving or distribution
equipment, except at the subscriber's premises or in the uplink process to
the satellite.
[ 51 FR 15000 , Apr. 22, 1986]
Editorial Note: ForFederal Registercitations affecting §1.1307, see the
List of CFR Sections Affected, which appears in the Finding Aids section of
the printed volume and on GPO Access.
§ 1.1308 Consideration of environmental assessments (EAs); findings of no
significant impact.
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(a) Applicants shall prepare EAs for actions that may have a significant
environmental impact ( see §1.1307). An EA is described in detail in §1.1311
of this part of the Commission rules.
(b) The EA is a document which shall explain the environmental consequences
of the proposal and set forth sufficient analysis for the Bureau or the
Commission to reach a determination that the proposal will or will not have
a significant environmental effect. To assist in making that determination,
the Bureau or the Commission may request further information from the
applicant, interested persons, and agencies and authorities which have
jurisdiction by law or which have relevant expertise.
Note: With respect to actions specified under §1.1307 (a)(3) and (a)(4), the
Commission shall solicit and consider the comments of the Department of
Interior, and the State Historic Preservation Officer and the Advisory
Council on Historic Preservation, respectively, in accordance with their
established procedures. See Interagency Cooperation—Endangered Species Act
of 1973, as amended, 50 CFR part 402; Protection of Historic and Cultural
Properties, 36 CFR part 800. In addition, when an action interferes with or
adversely affects an American Indian tribe's religious site, the Commission
shall solicit the views of that American Indian tribe. See §1.1307(a)(5).
(c) If the Bureau or the Commission determines, based on an independent
review of the EA and any applicable mandatory consultation requirements
imposed upon Federal agencies ( see note above), that the proposal will have
a significant environmental impact upon the quality of the human
environment, it will so inform the applicant. The applicant will then have
an opportunity to amend its application so as to reduce, minimize, or
eliminate environmental problems. See §1.1309. If the environmental problem
is not eliminated, the Bureau will publish in theFederal Registera Notice of
Intent ( see §1.1314) that EISs will be prepared ( see §§1.1315 and 1.1317),
or
(d) If the Bureau or Commission determines, based on an independent review
of the EA, and any mandatory consultation requirements imposed upon Federal
agencies ( see the note to paragraph (b) of this section), that the proposal
would not have a significant impact, it will make a finding of no
significant impact. Thereafter, the application will be processed without
further documentation of environmental effect. Pursuant to CEQ regulations,
see 40 CFR 1501.4 and 1501.6, the applicant must provide the community
notice of the Commission's finding of no significant impact.
[ 51 FR 15000 , Apr. 22, 1986; 51 FR 18889 , May 23, 1986, as amended at 53 FR 28394 , July 28, 1988]
§ 1.1309 Application amendments.
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Applicants are permitted to amend their applications to reduce, minimize or
eliminate potential environmental problems. As a routine matter, an
applicant will be permitted to amend its application within thirty (30) days
after the Commission or the Bureau informs the applicant that the proposal
will have a significant impact upon the quality of the human environment (
see §1.1308(c)). The period of thirty (30) days may be extended upon a
showing of good cause.
§ 1.1310 Radiofrequency radiation exposure limits.
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The criteria listed in table 1 shall be used to evaluate the environmental
impact of human exposure to radiofrequency (RF) radiation as specified in
§1.1307(b), except in the case of portable devices which shall be evaluated
according to the provisions of §2.1093 of this chapter. Further information
on evaluating compliance with these limits can be found in the FCC's OST/OET
Bulletin Number 65, “Evaluating Compliance with FCC-Specified Guidelines for
Human Exposure to Radiofrequency Radiation.”
Note to Introductory Paragraph: These limits are generally based on
recommended exposure guidelines published by the National Council on
Radiation Protection and Measurements (NCRP) in “Biological Effects and
Exposure Criteria for Radiofrequency Electromagnetic Fields,” NCRP Report
No. 86, Sections 17.4.1, 17.4.1.1, 17.4.2 and 17.4.3. Copyright NCRP, 1986,
Bethesda, Maryland 20814. In the frequency range from 100 MHz to 1500 MHz,
exposure limits for field strength and power density are also generally
based on guidelines recommended by the American National Standards Institute
(ANSI) in Section 4.1 of “IEEE Standard for Safety Levels with Respect to
Human Exposure to Radio Frequency Electromagnetic Fields, 3 kHz to 300
GHz,” ANSI/IEEE C95.1–1992, Copyright 1992 by the Institute of Electrical
and Electronics Engineers, Inc., New York, New York 10017.
Table 1—Limits for Maximum Permissible Exposure (MPE)
Frequency range
(MHz) Electric field strength
(V/m) Magnetic field strength
(A/m) Power density
(mW/cm^2) Averaging time
(minutes)
(A) Limits for Occupational/Controlled Exposures
0.3–3.0 614 1.63 *(100) 6
3.0–30 1842/f 4.89/f *(900/f^2) 6
30–300 61.4 0.163 1.0 6
300–1500 f/300 6
1500–100,000 5 6
(B) Limits for General Population/Uncontrolled Exposure
0.3–1.34 614 1.63 *(100) 30
1.34–30 824/f 2.19/f *(180/f^2) 30
30–300 27.5 0.073 0.2 30
300–1500 f/1500 30
1500–100,000 1.0 30
f = frequency in MHz
* = Plane-wave equivalent power density
Note 1 to Table 1: Occupational/controlled limits apply in situations in
which persons are exposed as a consequence of their employment provided
those persons are fully aware of the potential for exposure and can exercise
control over their exposure. Limits for occupational/controlled exposure
also apply in situations when an individual is transient through a location
where occupational/controlled limits apply provided he or she is made aware
of the potential for exposure.
Note 2 to Table 1: General population/uncontrolled exposures apply in
situations in which the general public may be exposed, or in which persons
that are exposed as a consequence of their employment may not be fully aware
of the potential for exposure or can not exercise control over their
exposure.
[ 61 FR 41016 , Aug. 7, 1996]
§ 1.1311 Environmental information to be included in the environmental
assessment (EA).
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(a) The applicant shall submit an EA with each application that is subject
to environmental processing ( see §1.1307). The EA shall contain the
following information:
(1) For antenna towers and satellite earth stations, a description of the
facilities as well as supporting structures and appurtenances, and a
description of the site as well as the surrounding area and uses. If high
intensity white lighting is proposed or utilized within a residential area,
the EA must also address the impact of this lighting upon the residents.
(2) A statement as to the zoning classification of the site, and
communications with, or proceedings before and determinations (if any) made
by zoning, planning, environmental or other local, state or Federal
authorities on matters relating to environmental effect.
(3) A statement as to whether construction of the facilities has been a
source of controversy on environmental grounds in the local community.
(4) A discussion of environmental and other considerations which led to the
selection of the particular site and, if relevant, the particular facility;
the nature and extent of any unavoidable adverse environmental effects, and
any alternative sites or facilities which have been or might reasonably be
considered.
(5) Any other information that may be requested by the Bureau or Commission.
(6) If endangered or threatened species or their critical habitats may be
affected, the applicant's analysis must utilize the best scientific and
commercial data available, see 50 CFR 402.14(c).
(b) The information submitted in the EA shall be factual (not argumentative
or conclusory) and concise with sufficient detail to explain the
environmental consequences and to enable the Commission or Bureau, after an
independent review of the EA, to reach a determination concerning the
proposal's environmental impact, if any. The EA shall deal specifically with
any feature of the site which has special environmental significance (e.g.,
wilderness areas, wildlife preserves, natural migration paths for birds and
other wildlife, and sites of historic, architectural, or archeological
value). In the case of historically significant sites, it shall specify the
effect of the facilities on any district, site, building, structure or
object listed, or eligible for listing, in the National Register of Historic
Places. It shall also detail any substantial change in the character of the
land utilized (e.g., deforestation, water diversion, wetland fill, or other
extensive change of surface features). In the case of wilderness areas,
wildlife preserves, or other like areas, the statement shall discuss the
effect of any continuing pattern of human intrusion into the area (e.g.,
necessitated by the operation and maintenance of the facilities).
(c) The EA shall also be accompanied with evidence of site approval which
has been obtained from local or Federal land use authorities.
(d) To the extent that such information is submitted in another part of the
application, it need not be duplicated in the EA, but adequate
cross-reference to such information shall be supplied.
(e) An EA need not be submitted to the Commission if another agency of the
Federal Government has assumed responsibility for determining whether of the
facilities in question will have a significant effect on the quality of the
human environment and, if it will, for invoking the environmental impact
statement process.
[ 51 FR 15000 , Apr. 22, 1986, as amended at 51 FR 18889 , May 23, 1986; 53 FR 28394 , July 28, 1988]
§ 1.1312 Facilities for which no preconstruction authorization is required.
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(a) In the case of facilities for which no Commission authorization prior to
construction is required by the Commission's rules and regulations the
licensee or applicant shall initially ascertain whether the proposed
facility may have a significant environmental impact as defined in §1.1307
of this part or is categorically excluded from environmental processing
under §1.1306 of this part.
(b) If a facility covered by paragraph (a) of this section may have a
significant environmental impact, the information required by §1.1311 of
this part shall be submitted by the licensee or applicant and ruled on by
the Commission, and environmental processing (if invoked) shall be
completed, see §1.1308 of this part, prior to the initiation of construction
of the facility.
(c) If a facility covered by paragraph (a) of this section is categorically
excluded from environmental processing, the licensee or applicant may
proceed with construction and operation of the facility in accordance with
the applicable licensing rules and procedures.
(d) If, following the initiation of construction under this section, the
licensee or applicant discovers that the proposed facility may have a
significant environmental effect, it shall immediately cease construction
which may have that effect, and submit the information required by §1.1311
of this part. The Commission shall rule on that submission and complete
further environmental processing (if invoked), see §1.1308 of this part,
before such construction is resumed.
(e) Paragraphs (a) through (d) of this section shall not apply to the
construction of mobile stations.
[ 55 FR 20396 , May 16, 1990, as amended at 56 FR 13414 , Apr. 2, 1991]
§ 1.1313 Objections.
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(a) In the case of an application to which section 309(b) of the
Communications Act applies, objections based on environmental considerations
shall be filed as petitions to deny.
(b) Informal objections which are based on environmental considerations must
be filed prior to grant of the construction permit, or prior to
authorization for facilities that do not require construction permits, or
pursuant to the applicable rules governing services subject to lotteries.
§ 1.1314 Environmental impact statements (EISs).
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(a) Draft Environmental Impact Statements (DEISs) (§1.1315) and Final
Environmental Impact Statements (FEISs) (referred to collectively as EISs)
(§1.1317) shall be prepared by the Bureau responsible for processing the
proposal when the Commission's or the Bureau's analysis of the EA (§1.1308)
indicates that the proposal will have a significant effect upon the
environment and the matter has not been resolved by an amendment.
(b) As soon as practically feasible, the Bureau will publish in theFederal
Registera Notice of Intent to prepare EISs. The Notice shall briefly
identify the proposal, concisely describe the environmental issues and
concerns presented by the subject application, and generally invite
participation from affected or involved agencies, authorities and other
interested persons.
(c) The EISs shall not address non-environmental considerations. To
safeguard against repetitive and unnecessarily lengthy documents, the
Statements, where feasible, shall incorporate by reference material set
forth in previous documents, with only a brief summary of its content. In
preparing the EISs, the Bureau will identify and address the significant
environmental issues and eliminate the insignificant issues from analysis.
(d) To assist in the preparation of the EISs, the Bureau may request further
information from the applicant, interested persons and agencies and
authorities, which have jurisdiction by law or which have relevant
expertise. The Bureau may direct that technical studies be made by the
applicant and that the applicant obtain expert opinion concerning the
potential environmental problems and costs associated with the proposed
action, as well as comparative analyses of alternatives. The Bureau may also
consult experts in an effort to identify measures that could be taken to
minimize the adverse effects and alternatives to the proposed facilities
that are not, or are less, objectionable. The Bureau may also direct that
objections be raised with appropriate local, state or Federal land use
agencies or authorities (if their views have not been previously sought).
(e) The Bureau responsible for processing the particular application and,
thus, preparing the EISs shall draft supplements to Statements where
significant new circumstances occur or information arises relevant to
environmental concerns and bearing upon the application.
(f) The Application, the EA, the DEIS, and the FEIS and all related
documents, including the comments filed by the public and any agency, shall
be part of the administrative record and will be routinely available for
public inspection.
(g) If EISs are to be prepared, the applicant must provide the community
with notice of the availability of environmental documents and the
scheduling of any Commission hearings in that action.
(h) The timing of agency action with respect to applications subject to EISs
is set forth in 40 CFR 1506.10. No decision shall be made until ninety (90)
days after the Notice of Availability of the Draft Environmental Impact
Statement is published in the Federal Register, and thirty (30) days after
the Notice of Availability of the Final Environmental Impact Statement is
published in theFederal Register,which time period may run concurrently, See
40 CFR 1506.10(c); see also §§1.1315(b) and 1.1317(b).
(i) Guidance concerning preparation of the Draft and Final Environmental
Statements is set out in 40 CFR part 1502.
[ 51 FR 15000 , Apr. 22, 1986, as amended at 53 FR 28394 , July 28, 1988]
§ 1.1315 The Draft Environmental Impact Statement (DEIS); Comments.
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(a) The DEIS shall include:
(1) A concise description of the proposal, the nature of the area affected,
its uses, and any specific feature of the area that has special
environmental significance;
(2) An analysis of the proposal, and reasonable alternatives exploring the
important consequent advantages and/or disadvantages of the action and
indicating the direct and indirect effects and their significance in terms
of the short and long-term uses of the human environment.
(b) When a DEIS and supplements, if any, are prepared, the Commission shall
send five copies of the Statement, or a summary, to the Office of Federal
Activities, Environmental Protection Agency. Additional copies, or
summaries, will be sent to the appropriate regional office of the
Environmental Protection Agency. Public Notice of the availability of the
DEIS will be published in theFederal Registerby the Environmental Protection
Agency.
(c) When copies or summaries of the DEIS are sent to the Environmental
Protection Agency, the copies or summaries will be mailed with a request for
comment to Federal agencies having jurisdiction by law or special expertise,
to the Council on Environmental Quality, to the applicant, to individuals,
groups and state and local agencies known to have an interest in the
environmental consequences of a grant, and to any other person who has
requested a copy.
(d) Any person or agency may comment on the DEIS and the environmental
effect of the proposal described therein within 45 days after notice of the
availability of the statement is published in theFederal Register.A copy of
those comments shall be mailed to the applicant by the person who files them
pursuant to 47 CFR 1.47. An original and one copy shall be filed with the
Commission. If a person submitting comments is especially qualified in any
way to comment on the environmental impact of the facilities, a statement of
his or her qualifications shall be set out in the comments. In addition,
comments submitted by an agency shall identify the person(s) who prepared
them.
(e) The applicant may file reply comments within 15 days after the time for
filing comments has expired. Reply comments shall be filed with the
Commission in the same manner as comments, and shall be served by the
applicant on persons or agencies which filed comments.
(f) The preparation of a DEIS and the request for comments shall not open
the application to attack on other grounds.
§ 1.1317 The Final Environmental Impact Statement (FEIS).
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(a) After receipt of comments and reply comments, the Bureau will prepare a
FEIS, which shall include a summary of the comments, and a response to the
comments, and an analysis of the proposal in terms of its environmental
consequences, and any reasonable alternatives, and recommendations, if any,
and shall cite the Commission's internal appeal procedures ( See 47 CFR
1.101–1.120).
(b) The FEIS and any supplements will be distributed and published in the
same manner as specified in §1.1315. Copies of the comments and reply
comments, or summaries thereof where the record is voluminous, shall be
attached to the FEIS.
§ 1.1319 Consideration of the environmental impact statements.
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(a) If the action is subject to a hearing:
(1) In rendering his initial decision, the Administrative Law Judge shall
utilize the FEIS in considering the environmental issues, together with all
other non-environmental issues. In a comparative context, the respective
parties shall be afforded the opportunity to comment on the FEIS, and the
Administrative Law Judge's decision shall contain an evaluation of the
respective applications based on environmental and non-environmental public
interest factors.
(2) Upon review of an initial decision, the Commission will consider and
assess all aspects of the FEIS and will render its decision, giving due
consideration to the environmental and nonenvironmental issues.
(b) In all non-hearing matters, the Commission, as part of its
decision-making process, will review the FEIS, along with other relevant
issues, to ensure that the environmental effects are specifically assessed
and given comprehensive consideration.
[ 51 FR 15000 , Apr. 22, 1986, as amended at 62 FR 4171 , Jan. 29, 1997]
Subpart J—Pole Attachment Complaint Procedures
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Source: 43 FR 36094 , Aug. 15, 1978, unless otherwise noted.
§ 1.1401 Purpose.
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The rules and regulations contained in subpart J of this part provide
complaint and enforcement procedures to ensure that telecommunications
carriers and cable system operators have nondiscriminatory access to utility
poles, ducts, conduits, and rights-of-way on rates, terms, and conditions
that are just and reasonable.
[ 61 FR 45618 , Aug. 29, 1996]
§ 1.1402 Definitions.
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(a) The term utility means any person that is a local exchange carrier or an
electric, gas, water, steam, or other public utility, and who owns or
controls poles, ducts, conduits, or rights-of-way used, in whole or in part,
for any wire communications. Such term does not include any railroad, any
person that is cooperatively organized, or any person owned by the Federal
Government or any State.
(b) The term pole attachment means any attachment by a cable television
system or provider of telecommunications service to a pole, duct, conduit,
or right-of-way owned or controlled by a utility.
(c) With respect to poles, the term usable space means the space on a
utility pole above the minimum grade level which can be used for the
attachment of wires, cables, and associated equipment, and which includes
space occupied by the utility. With respect to conduit, the term usable
space means capacity within a conduit system which is available, or which
could, with reasonable effort and expense, be made available, for the
purpose of installing wires, cable and associated equipment for
telecommunications or cable services, and which includes capacity occupied
by the utility.
(d) The term complaint means a filing by a cable television system operator,
a cable television system association, a utility, an association of
utilities, a telecommunications carrier, or an association of
telecommunications carriers alleging that it has been denied access to a
utility pole, duct, conduit, or right-of-way in violation of this subpart
and/or that a rate, term, or condition for a pole attachment is not just and
reasonable.
(e) The term complainant means a cable television system operator, a cable
television system association, a utility, an association of utilities, a
telecommunications carrier, or an association of telecommunications carriers
who files a complaint.
(f) The term respondent means a cable television system operator, a utility,
or a telecommunications carrier against whom a complaint is filed.
(g) The term State means any State, territory, or possession of the United
States, the District of Columbia, or any political subdivision, agency, or
instrumentality thereof.
(h) For purposes of this subpart, the term telecommunications carrier means
any provider of telecommunications services, except that the term does not
include aggregators of telecommunications services (as defined in 47 U.S.C.
226) or incumbent local exchange carriers (as defined in 47 U.S.C. 251(h)).
(i) The term conduit means a structure containing one or more ducts, usually
placed in the ground, in which cables or wires may be installed.
(j) The term conduit system means a collection of one or more conduits
together with their supporting infrastructure.
(k) The term duct means a single enclosed raceway for conductors, cable
and/or wire.
(l) With respect to poles, the term unusable space means the space on a
utility pole below the usable space, including the amount required to set
the depth of the pole.
(m) The term attaching entity includes cable system operators,
telecommunications carriers, incumbent and other local exchange carriers,
utilities, governmental entities and other entities with a physical
attachment to the pole, duct, conduit or right of way. It does not include
governmental entities with only seasonal attachments to the pole.
(n) The term inner-duct means a duct-like raceway smaller than a duct that
is inserted into a duct so that the duct may carry multiple wires or cables.
[ 43 FR 36094 , Aug. 15, 1978, as amended at 52 FR 31770 , Aug. 24, 1987; 61 FR 43024 , Aug. 20, 1996; 61 FR 45618 , Aug. 29, 1996; 63 FR 12024 , Mar. 12,
1998; 65 FR 31281 , May 17, 2000; 66 FR 34580 , June 29, 2001]
§ 1.1403 Duty to provide access; modifications; notice of removal, increase
or modification; petition for temporary stay; and cable operator notice.
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(a) A utility shall provide a cable television system or any
telecommunications carrier with nondiscriminatory access to any pole, duct,
conduit, or right-of-way owned or controlled by it. Notwithstanding this
obligation, a utility may deny a cable television system or any
telecommunications carrier access to its poles, ducts, conduits, or
rights-of-way, on a non-discriminatory basis where there is insufficient
capacity or for reasons of safety, reliability and generally applicable
engineering purposes.
(b) Requests for access to a utility's poles, ducts, conduits or
rights-of-way by a telecommunications carrier or cable operator must be in
writing. If access is not granted within 45 days of the request for access,
the utility must confirm the denial in writing by the 45th day. The
utility's denial of access shall be specific, shall include all relevant
evidence and information supporting its denial, and shall explain how such
evidence and information relate to a denial of access for reasons of lack of
capacity, safety, reliability or engineering standards.
(c) A utility shall provide a cable television system operator or
telecommunications carrier no less than 60 days written notice prior to:
(1) Removal of facilities or termination of any service to those facilities,
such removal or termination arising out of a rate, term or condition of the
cable television system operator's of telecommunications carrier's pole
attachment agreement;
(2) Any increase in pole attachment rates; or
(3) Any modification of facilities other than routine maintenance or
modification in response to emergencies.
(d) A cable television system operator or telecommunications carrier may
file a “Petition for Temporary Stay” of the action contained in a notice
received pursuant to paragraph (c) of this section within 15 days of receipt
of such notice. Such submission shall not be considered unless it includes,
in concise terms, the relief sought, the reasons for such relief, including
a showing of irreparable harm and likely cessation of cable television
service or telecommunication service, a copy of the notice, and
certification of service as required by §1.1404(b). The named respondent may
file an answer within 7 days of the date the Petition for Temporary Stay was
filed. No further filings under this section will be considered unless
requested or authorized by the Commission and no extensions of time will be
granted unless justified pursuant to §1.46.5.
(e) Cable operators must notify pole owners upon offering telecommunications
services.
[ 61 FR 45618 , Aug. 29, 1996, as amended at 63 FR 12025 , Mar. 12, 1998]
Effective Date Note: At 63 FR 12025 , Mar. 12, 1998, §1.1403 was amended by
revising the heading and adding new paragraph (e). The added text contains
information collection and recordkeeping requirements and will not become
effective until approval has been given by the Office of Management and
Budget.
§ 1.1404 Complaint.
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(a) The complaint shall contain the name and address of the complainant,
name and address of the respondent, and shall contain a verification (in the
form in §1.721(b)), signed by the complainant or officer thereof if
complainant is a corporation, showing complainant's direct interest in the
matter complained of. Counsel for the complainant may sign the complaint.
Complainants may join together to file a joint complaint. Complaints filed
by associations shall specifically identify each utility, cable television
system operator, or telecommunications carrier who is a party to the
complaint and shall be accompanied by a document from each identified member
certifying that the complaint is being filed on its behalf.
(b) The complaint shall be accompanied by a certification of service on the
named respondent, and each of the Federal, State, and local governmental
agencies that regulate any aspect of the services provided by the
complainant or respondent.
(c) In a case where it is claimed that a rate, term, or condition is unjust
or unreasonable, the complaint shall contain a statement that the State has
not certified to the Commission that it regulates the rates, terms and
conditions for pole attachments. The complaint shall include a statement
that the utility is not owned by any railroad, any person who is
cooperatively organized or any person owned by the Federal Government or any
State.
(d) The complaint shall be accompanied by a copy of the pole attachment
agreement, if any, between the cable system operator or telecommunications
carrier and the utility. If there is no present pole attachment agreement,
the complaint shall contain:
(1) A statement that the utility uses or controls poles, ducts, or conduits
used or designated, in whole or in part, for wire communication; and
(2) A statement that the cable television system operator or
telecommunications carrier currently has attachments on the poles, ducts,
conduits, or rights-of-way.
(e) The complaint shall state with specificity the pole attachment rate,
term or condition which is claimed to be unjust or unreasonable.
(f) In any case, where it is claimed that a term or condition is unjust or
unreasonable, the claim shall specify all information and argument relied
upon to justify said claim.
(g) For attachments to poles, where it is claimed that either a rate is
unjust or unreasonable, or a term or condition is unjust or unreasonable and
examination of such term or condition requires review of the associated
rate, the complaint shall provide data and information in support of said
claim.
(1) The data and information shall include, where applicable:
(i) The gross investment by the utility for pole lines;
(ii) The investment in crossarms and other items which do not reflect the
cost of owning and maintaining poles, if available;
(iii) The depreciation reserve from the gross pole line investment;
(iv) The depreciation reserve from the investment in crossarms and other
items which do not reflect the cost of owning and maintaining poles, if
available;
(v) The total number of poles:
(A) Owned; and
(B) Controlled or used by the utility. If any of these poles are jointly
owned, the complaint shall specify the number of such jointly owned poles
and the percentage of each joint pole or the number of equivalent poles
owned by the subject utility;
(vi) The total number of poles which are the subject of the complaint;
(vii) The number of poles included in paragraph (g)(1)(vi) of this section
that are controlled or used by the utility through lease between the utility
and other owner(s), and the annual amounts paid by the utility for such
rental;
(viii) The number of poles included in paragraph (g)(1)(vi) of this section
that are owned by the utility and that are leased to other users by the
utility, and the annual amounts paid to the utility for such rental;
(ix) The annual carrying charges attributable to the cost of owning a pole.
These charges may be expressed as a percentage of the net pole investment.
With its pleading, the utility shall file a copy of the latest decision of
the state regulatory body or state court which determines the treatment of
accumulated deferred taxes if it is at issue in the proceeding and shall
note the section which specifically determines the treatment and amount of
accumulated deferred taxes.
(x) The rate of return authorized for the utility for intrastate service.
With its pleading, the utility shall file a copy of the latest decision of
the state regulatory body or state court which establishes this authorized
rate of return if the rate of return is at issue in the proceeding and shall
note the section which specifically establishes this authorized rate and
whether the decision is subject to further proceedings before the state
regulatory body or a court. In the absence of a state authorized rate of
return, the rate of return set by the Commission for local exchange carriers
shall be used as a default rate of return;
(xi) The average amount of usable space per pole for those poles used for
pole attachments (13.5 feet may be in lieu of actual measurement, but may be
rebutted);
(xii) The average amount of unusable space per pole for those poles used for
pole attachments (a 24 foot presumption may be used in lieu of actual
measurement, but the presumption may be rebutted); and
(xiii) Reimbursements received from CATV operators and telecommunications
carriers for non-recurring costs.
(2) Data and information should be based upon historical or original cost
methodology, insofar as possible. Data should be derived from ARMIS, FERC 1,
or other reports filed with state or federal regulatory agencies (identify
source). Calculations made in connection with these figures should be
provided to the complainant. The complainant shall also specify any other
information and argument relied upon to attempt to establish that a rate,
term, or condition is not just and reasonable.
(h) With respect to attachments within a duct or conduit system, where it is
claimed that either a rate is unjust or unreasonable, or a term or condition
is unjust or unreasonable and examination of such term or condition requires
review of the associated rate, the complaint shall provide data and
information in support of said claim.
(1) The data and information shall include, where applicable:
(i) The gross investment by the utility for conduit;
(ii) The accumulated depreciation from the gross conduit investment;
(iii) The system duct length or system conduit length and the method used to
determine it;
(iv) The length of the conduit subject to the complaint;
(v) The number of ducts in the conduit subject to the complaint;
(vi) The number of inner-ducts in the duct occupied, if any. If there are no
inner-ducts, the attachment is presumed to occupy one-half duct.
(vii) The annual carrying charges attributable to the cost of owning
conduit. These charges may be expressed as a percentage of the net linear
cost of a conduit. With its pleading, the utility shall file a copy of the
latest decision of the state regulatory body or state court which determines
the treatment of accumulated deferred taxes if it is at issue in the
proceeding and shall note the section which specifically determines the
treatment and amount of accumulated deferred taxes.
(viii) The rate of return authorized for the utility for intrastate service.
With its pleading, the utility shall file a copy of the latest decision of
the state regulatory body or state court which establishes this authorized
rate of return if the rate of return is at issue in the proceeding and shall
note the section which specifically establishes this authorized rate and
whether the decision is subject to further proceedings before the state
regulatory body or a court. In the absence of a state authorized rate of
return, the rate of return set by the Commission for local exchange carriers
shall be used as a default rate of return; and
(ix) Reimbursements received by utilities from CATV operators and
telecommunications carriers for non-recurring costs.
(2) Data and information should be based upon historical or original cost
methodology, insofar as possible. Data should be derived from ARMIS, FERC 1,
or other reports filed with state or federal regulatory agencies (identify
source). Calculations made in connection with these figures should be
provided to the complainant. The complainant shall also specify any other
information and argument relied upon to attempt to establish that a rate,
term, or condition is not just and reasonable.
(i) With respect to rights-of-way, where it is claimed that either a rate is
unjust or unreasonable, or a term or condition is unjust or unreasonable and
examination of such term or condition requires review of the associated
rate, the complaint shall provide data and information in support of said
claim. The data and information shall include, where applicable, equivalent
information as specified in paragraph (g) of this section.
(j) If any of the information and data required in paragraphs (g), (h) and
(i) of this section is not provided to the cable television operator or
telecommunications carrier by the utility upon reasonable request, the cable
television operator or telecommunications carrier shall include a statement
indicating the steps taken to obtain the information from the utility,
including the dates of all requests. No complaint filed by a cable
television operator or telecommunications carrier shall be dismissed where
the utility has failed to provide the information required under paragraphs
(g), (h) or (i) of this section, as applicable, after such reasonable
request. A utility must supply a cable television operator or
telecommunications carrier the information required in paragraph (g), (h) or
(i) of this section, as applicable, along with the supporting pages from its
ARMIS, FERC Form 1, or other report to a regulatory body, within 30 days of
the request by the cable television operator or telecommunications carrier.
The cable television operator or telecommunications carrier, in turn, shall
submit these pages with its complaint. If the utility did not supply these
pages to the cable television operator or telecommunications carrier in
response to the information request, the utility shall supply this
information in its response to the complaint.
(k) The complaint shall include a brief summary of all steps taken to
resolve the problem prior to filing. If no such steps were taken, the
complaint shall state the reason(s) why it believed such steps were
fruitless.
(l) Factual allegations shall be supported by affidavit of a person or
persons with actual knowledge of the facts, and exhibits shall be verified
by the person who prepares them.
(m) In a case where a cable television system operator or telecommunications
carrier claims that it has been denied access to a pole, duct, conduit or
right-of-way despite a request made pursuant to section 47 U.S.C. §224(f),
the complaint shall be filed within 30 days of such denial. In addition to
meeting the other requirements of this section, the complaint shall include
the data and information necessary to support the claim, including:
(1) The reasons given for the denial of access to the utility's poles,
ducts, conduits and rights-of-way;
(2) The basis for the complainant's claim that the denial of access is
improper;
(3) The remedy sought by the complainant;
(4) A copy of the written request to the utility for access to its poles,
ducts, conduits or rights-of-way; and
(5) A copy of the utility's response to the written request including all
information given by the utility to support its denial of access. A
complaint alleging improper denial of access will not be dismissed if the
complainant is unable to obtain a utility's written response, or if the
utility denies the complainant any other information needed to establish a
prima facie case.
[ 43 FR 36094 , Aug. 15, 1978, as amended at 44 FR 31649 , June 1, 1979; 45 FR 17014 , Mar. 17, 1980; 52 FR 31770 , Aug. 24, 1987; 61 FR 43025 , Aug. 20,
1996; 61 FR 45619 , Aug. 29, 1996; 63 FR 12025 , Mar. 12, 1998; 65 FR 31282 ,
May 17, 2000; 65 FR 34820 , May 31, 2000]
Effective Date Note 1: At 63 FR 12025 , Mar. 12, 1998, §1.1404 was amended
by redesignating paragraphs (g)(12) and (h) through (k) as (g)(13) and (k)
through (n) and adding new paragraphs (g)(12) and (h) through (j). The added
text contains information collection and recordkeeping requirements and will
not become effective until approval has been given by the Office of
Management and Budget.
Effective Date Note 2: At 65 FR 31282 , May 17, 2000, §1.1404 was amended
by removing paragraph (k), redesignating paragraphs (l), (m), and (n) as
(k), (l), and (m), respectively, and revising paragraphs (g), (h), and the
third sentence of paragraph (j). The revised text contains information
collection and recordkeeping requirements and will not become effective
until approval has been given by the Office of Management and Budget.
§ 1.1405 File numbers.
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Each complaint which appears to be essentially complete under §1.1404 will
be accepted and assigned a file number. Such assignment is for
administrative purposes only and does not necessarily mean that the
complaint has been found to be in full compliance with other sections in
this subpart. Petitions for temporary stay will also be assigned a file
number upon receipt.
[ 44 FR 31650 , June 1, 1979]
§ 1.1406 Dismissal of complaints.
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(a) The complaint shall be dismissed for lack of jurisdiction in any case
where a suitable certificate has been filed by a State pursuant to §1.1414
of this subpart. Such certificate shall be conclusive proof of lack of
jurisdiction of this Commission. A complaint against a utility shall also be
dismissed if the utility does not use or control poles, ducts, or conduits
used or designated, in whole or in part, for wire communication or if the
utility does not meet the criteria of §1.1402(a) of this subpart.
(b) If the complaint does not contain substantially all the information
required under §1.1404 the Commission may dismiss the complaint or may
require the complainant to file additional information. The complaint shall
not be dismissed if the information is not available from public records or
from the respondent utility after reasonable request.
(c) Failure by the complainant to respond to official correspondence or a
request for additional information will be cause for dismissal.
(d) Dismissal under provisions of paragraph (b) of this section above will
be with prejudice if the complaint has been dismissed previously. Such a
complaint may be refiled no earlier than six months from the date it was so
dismissed.
[ 43 FR 36094 , Aug. 15, 1978, as amended at 44 FR 31650 , June 1, 1979]
§ 1.1407 Response and reply.
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(a) Respondent shall have 30 days from the date the complaint was filed
within which to file a response. Complainant shall have 20 days from the
date the response was filed within which to file a reply. Extensions of time
to file are not contemplated unless justification is shown pursuant to
§1.46. Except as otherwise provided in §1.1403, no other filings and no
motions other than for extension of time will be considered unless
authorized by the Commission. The response should set forth justification
for the rate, term, or condition alleged in the complaint not to be just and
reasonable. Factual allegations shall be supported by affidavit of a person
or persons with actual knowledge of the facts and exhibits shall be verified
by the person who prepares them. The response, reply, and other pleadings
may be signed by counsel.
(b) The response shall be served on the complainant and all parties listed
in complainant's certificate of service.
(c) The reply shall be served on the respondent and all parties listed in
respondent's certificate of service.
(d) Failure to respond may be deemed an admission of the material factual
allegations contained in the complaint.
[ 44 FR 31650 , June 1, 1979]
§ 1.1408 Number of copies and form of pleadings.
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(a) An original and three copies of the complaint, response, and reply shall
be filed with the Commission.
(b) All papers filed in the complaint proceeding must be drawn in conformity
with the requirements of §§1.49, 1.50 and 1.52.
§ 1.1409 Commission consideration of the complaint.
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(a) In its consideration of the complaint, response, and reply, the
Commission may take notice of any information contained in publicly
available filings made by the parties and may accept, subject to rebuttal,
studies that have been conducted. The Commission may also request that one
or more of the parties make additional filings or provide additional
information. Where one of the parties has failed to provide information
required to be provided by these rules or requested by the Commission, or
where costs, values or amounts are disputed, the Commission may estimate
such costs, values or amounts it considers reasonable, or may decide
adversely to a party who has failed to supply requested information which is
readily available to it, or both.
(b) The complainant shall have the burden of establishing a prima facie case
that the rate, term, or condition is not just and reasonable or that the
denial of access violates 47 U.S.C. §224(f). If, however, a utility argues
that the proposed rate is lower than its incremental costs, the utility has
the burden of establishing that such rate is below the statutory minimum
just and reasonable rate. In a case involving a denial of access, the
utility shall have the burden of proving that the denial was lawful, once a
prima facie case is established by the complainant.
(c) The Commission shall determine whether the rate, term or condition
complained of is just and reasonable. For the purposes of this paragraph, a
rate is just and reasonable if it assures a utility the recovery of not less
than the additional costs of providing pole attachments, nor more than an
amount determined by multiplying the percentage of the total usable space,
or the percentage of the total duct or conduit capacity, which is occupied
by the pole attachment by the sum of the operating expenses and actual
capital costs of the utility attributable to the entire pole, duct, conduit,
or right-of-way.
(d) The Commission shall deny the complaint if it determines that the
complainant has not established a prima facie case, or that the rate, term
or condition is just and reasonable, or that the denial of access was
lawful.
(e) When parties fail to resolve a dispute regarding charges for pole
attachments and the Commission's complaint procedures under Section 1.1404
are invoked, the Commission will apply the following formulas for
determining a maximum just and reasonable rate:
(1) The following formula shall apply to attachments to poles by cable
operators providing cable services. This formula shall also apply to
attachments to poles by any telecommunications carrier (to the extent such
carrier is not a party to a pole attachment agreement) or cable operator
providing telecommunications services until February 8, 2001:
[MATH: 
:MATH]
[MATH: 
:MATH]
(2) Subject to paragraph (f) of this section the following formula shall
apply to attachments to poles by any telecommunications carrier (to the
extent such carrier is not a party to a pole attachment agreement) or cable
operator providing telecommunications services beginning February 8, 2001:
[MATH: 
:MATH]
(3) The following formula shall apply to attachments to conduit by cable
operators and telecommunications carriers:
[MATH: 
:MATH]
simplified as:
[MATH: 
:MATH]
If no inner-duct is installed the fraction, “1 Duct divided by the No. of
Inner-Ducts” is presumed to be1/2.
(f) Paragraph (e)(2) of this section shall become effective February 8, 2001
(i.e., five years after the effective date of the Telecommunications Act of
1996). Any increase in the rates for pole attachments that results from the
adoption of such regulations shall be phased in over a period of five years
beginning on the effective date of such regulations in equal annual
increments. The five-year phase-in is to apply to rate increases only. Rate
reductions are to be implemented immediately. The determination of any rate
increase shall be based on data currently available at the time of the
calculation of the rate increase.
[ 43 FR 36094 , Aug. 15, 1978, as amended at 52 FR 31770 , Aug. 24, 1987; 61 FR 43025 , Aug. 20, 1996; 61 FR 45619 , Aug. 29, 1996; 63 FR 12025 , Mar. 12,
1998; 65 FR 31282 , May 17, 2000; 66 FR 34580 , June 29, 2001]
§ 1.1410 Remedies.
top
If the Commission determines that the rate, term, or condition complained of
is not just and reasonable, it may prescribe a just and reasonable rate,
term, or condition and may:
(a) Terminate the unjust and unreasonable rate, term, or condition;
(b) Substitute in the pole attachment agreement the just and reasonable
rate, term, or condition established by the Commission; and
(c) Order a refund, or payment, if appropriate. The refund or payment will
normally be the difference between the amount paid under the unjust and/or
unreasonable rate, term, or condition and the amount that would have been
paid under the rate, term, or condition established by the Commission from
the date that the complaint, as acceptable, was filed, plus interest.
[ 44 FR 31650 , June 1, 1979]
§ 1.1411 Meetings and hearings.
top
The Commission may decide each complaint upon the filings and information
before it, may require one or more informal meetings with the parties to
clarify the issues or to consider settlement of the dispute, or may, in its
discretion, order evidentiary procedures upon any issues it finds to have
been raised by the filings.
§ 1.1412 Enforcement.
top
If the respondent fails to obey any order imposed under this subpart, the
Commission on its own motion or by motion of the complainant may order the
respondent to show cause why it should not cease and desist from violating
the Commission's order.
§ 1.1413 Forfeiture.
top
(a) If any person willfully fails to obey any order imposed under this
subpart, or any Commission rule, or
(b) If any person shall in any written response to Commission correspondence
or inquiry or in any application, pleading, report, or any other written
statement submitted to the Commission pursuant to this subpart make any
misrepresentation bearing on any matter within the jurisdiction of the
Commission, the Commission may, in addition to any other remedies, including
criminal penalties under section 1001 of Title 18 of the United States Code,
impose a forfeiture pursuant to section 503(b) of the Communications Act, 47
U.S.C. 503(b).
§ 1.1414 State certification.
top
(a) If the Commission does not receive certification from a state that:
(1) It regulates rates, terms and conditions for pole attachments;
(2) In so regulating such rates, terms and conditions, the state has the
authority to consider and does consider the interests of the subscribers of
cable television services as well as the interests of the consumers of the
utility services; and,
(3) It has issued and made effective rules and regulations implementing the
state's regulatory authority over pole attachments (including a specific
methodology for such regulation which has been made publicly available in
the state), it will be rebuttably presumed that the state is not regulating
pole attachments.
(b) Upon receipt of such certification, the Commission shall give public
notice. In addition, the Commission shall compile and publish from time to
time, a listing of states which have provided certification.
(c) Upon receipt of such certification, the Commission shall forward any
pending case thereby affected to the state regulatory authority, shall so
notify the parties involved and shall give public notice thereof.
(d) Certification shall be by order of the state regulatory body or by a
person having lawful delegated authority under provisions of state law to
submit such certification. Said person shall provide in writing a statement
that he or she has such authority and shall cite the law, regulation or
other instrument conferring such authority.
(e) Notwithstanding any such certification, jurisdiction will revert to this
Commission with respect to any individual matter, unless the state takes
final action on a complaint regarding such matter:
(1) Within 180 days after the complaint is filed with the state, or
(2) Within the applicable periods prescribed for such final action in such
rules and regulations of the state, if the prescribed period does not extend
beyond 360 days after the filing of such complaint.
[ 43 FR 36094 , Aug. 15, 1978, as amended at 44 FR 31650 , June 1, 1979; 50 FR 18659 , May 5, 1985]
§ 1.1415 Other orders.
top
The Commission may issue such other orders and so conduct its proceedings as
will best conduce to the proper dispatch of business and the ends of
justice.
§ 1.1416 Imputation of rates; modification costs.
top
(a) A utility that engages in the provision of telecommunications services
or cable services shall impute to its costs of providing such services (and
charge any affiliate, subsidiary, or associate company engaged in the
provision of such services) an equal amount to the pole attachment rate for
which such company would be liable under this section.
(b) The costs of modifying a facility shall be borne by all parties that
obtain access to the facility as a result of the modification and by all
parties that directly benefit from the modification. Each party described in
the preceding sentence shall share proportionately in the cost of the
modification. A party with a preexisting attachment to the modified facility
shall be deemed to directly benefit from a modification if, after receiving
notification of such modification as provided in subpart J of this part, it
adds to or modifies its attachment. Notwithstanding the foregoing, a party
with a preexisting attachment to a pole, conduit, duct or right-of-way shall
not be required to bear any of the costs of rearranging or replacing its
attachment if such rearrangement or replacement is necessitated solely as a
result of an additional attachment or the modification of an existing
attachment sought by another party. If a party makes an attachment to the
facility after the completion of the modification, such party shall share
proportionately in the cost of the modification if such modification
rendered possible the added attachment.
[ 61 FR 43025 , Aug. 20, 1996; 61 FR 45619 , Aug. 29, 1996]
§ 1.1417 Allocation of Unusable Space Costs.
top
(a) With respect to the formula referenced in §1.1409(e)(2), a utility shall
apportion the cost of providing unusable space on a pole so that such
apportionment equals two-thirds of the costs of providing unusable space
that would be allocated to such entity under an equal apportionment of such
costs among all attaching entities.
(b) All attaching entities attached to the pole shall be counted for
purposes of apportioning the cost of unusable space.
(c) Utilities may use the following rebuttable presumptive averages when
calculating the number of attaching entities with respect to the formula
referenced in §1.1409(e)(2). For non-urbanized service areas (under 50,000
population), a presumptive average number of attaching entities of three
(3). For urbanized service areas (50,000 or higher population), a
presumptive average number of attaching entities of five (5). If any part of
the utility's service area within the state has a designation of urbanized
(50,000 or higher population) by the Bureau of Census, United States
Department of Commerce, then all of that service area shall be designated as
urbanized for purposes of determining the presumptive average number of
attaching entities.
(d) A utility may establish its own presumptive average number of attaching
entities for its urbanized and non-urbanized service area as follows:
(1) Each utility shall, upon request, provide all attaching entities and all
entities seeking access the methodology and information upon which the
utilities presumptive average number of attachers is based.
(2) Each utility is required to exercise good faith in establishing and
updating its presumptive average number of attachers.
(3) The presumptive average number of attachers may be challenged by an
attaching entity by submitting information demonstrating why the utility's
presumptive average is incorrect. The attaching entity should also submit
what it believes should be the presumptive average and the methodology used.
Where a complete inspection is impractical, a statistically sound survey may
be submitted.
(4) Upon successful challenge of the existing presumptive average number of
attachers, the resulting data determined shall be used by the utility as the
presumptive number of attachers within the rate formula.
[ 63 FR 12026 , Mar. 12, 1998, as amended at 66 FR 34581 , June 29, 2001]
Effective Date Note: At 63 FR 12026 , Mar. 12, 1998, §1.1417 was added. The
section contains information collection and recordkeeping requirements and
will not become effective until approval has been given by the Office of
Management and Budget.
§ 1.1418 Use of presumptions in calculating the space factor.
top
With respect to the formulas referenced in §1.1409(e)(1) and §1.1409(e)(2),
the space occupied by an attachment is presumed to be one (1) foot. The
amount of usable space is presumed to be 13.5 feet. The amount of unusable
space is presumed to be 24 feet. The pole height is presumed to be 37.5
feet. These presumptions may be rebutted by either party.
[ 66 FR 34581 , June 29, 2001]
Subpart K—Implementation of the Equal Access to Justice Act (EAJA) in Agency
Proceedings
top
Authority: Sec. 203(a)(1), Pub. L. 96–481, 94 Stat. 2325 (5 U.S.C.
504(c)(1)).
Source: 47 FR 3786 , Jan. 27, 1982, unless otherwise noted.
General Provisions
top
§ 1.1501 Purpose of these rules.
top
The Equal Access to Justice Act, 5 U.S.C. 504 (called the EAJA in this
subpart), provides for the award of attorney's fees and other expenses to
eligible individuals and entities who are parties to certain administrative
proceedings (called adversary adjudications ) before the Commission. An
eligible party may receive an award when it prevails over the Commission,
unless the Commission's position in the proceeding was substantially
justified or special circumstances make an award unjust, or when the demand
of the Commission is substantially in excess of the decision in the
adversary adjudication and is unreasonable when compared with such decision,
under the facts and circumstances of the case, unless the party has
committed a willful violation of law or otherwise acted in bad faith, or
special circumstances make an award unjust. The rules in this part describe
the parties eligible for awards and the proceedings that are covered. They
also explain how to apply for awards, and the procedures and standards that
the Commission will use to make them.
[ 47 FR 3786 , Jan. 27, 1982, as amended at 61 FR 39898 , July 31, 1996]
§ 1.1502 When the EAJA applies.
top
The EAJA applies to any adversary adjudication pending or commenced before
the Commission on or after August 5, 1985. The provisions of §1.1505(b)
apply to any adversary adjudications commenced on or after March 29, 1996.
[ 61 FR 39898 , July 31, 1996]
§ 1.1503 Proceedings covered.
top
(a) The EAJA applies to adversary adjudications conducted by the Commission.
These are adjudications under 5 U.S.C. 554 in which the position of the
Commission or any other agency of the United States, or any component of an
agency, is presented by an attorney or other representative who enters an
appearance and participates in the proceeding. Any proceeding in which this
Agency may fix a lawful present or future rate is not covered by the EAJA.
Proceedings to grant or renew licenses are also excluded, but proceedings to
modify, suspend, or revoke licenses are covered if they are otherwise
“adversary adjudications”.
(b) The Commission may designate a proceeding as an adversary adjudication
for purposes of the EAJA by so stating in an order initiating the proceeding
or designating the matter for hearing. The Commission's failure to designate
a proceeding as an adversary adjudication shall not preclude the filing of
an application by a party who believes the proceeding is covered by the
EAJA; whether the proceeding is covered will then be an issue for resolution
in proceedings on the application.
(c) If a proceeding includes both matters covered by the EAJA and matters
specifically excluded from coverage, any awards made will include only fees
and expenses related to covered issues.
[ 47 FR 3786 , Jan. 27, 1982, as amended at 52 FR 11653 , Apr. 10, 1987]
§ 1.1504 Eligibility of applicants.
top
(a) To be eligible for an award of attorney fees and other expenses under
the EAJA, the applicant must be a party, as defined in 5 U.S.C. 551(3), to
the adversary adjudication for which it seeks an award. The applicant must
show that it meets all conditions of eligibility set out in this paragraph
and in paragraph (b) of this section.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $2 million;
(2) The sole owner of an unincorporated business who has a net worth of not
more than $7 million, including both personal and business interests, and
not more than 500 employees;
(3) A charitable association as defined in section 501(c)(3) of the Internal
Revenue Code (26 U.S.C. 501(c)(3)) with not more than 500 employees;
(4) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500
employees;
(5) Any other partnership, corporation, association, unit of local
government, or organization with a net worth of not more than $7 million and
not more than 500 employees;
(6) For purposes of §1.1505(b), a small entity as defined in 5 U.S.C. 601.
(c) For the purpose of eligibility, the net worth and number of employees of
an applicant shall be determined as of the date the proceeding was
initiated.
(d) An applicant who owns an unincorporated business will be considered as
an “individual” rather than a “sole owner of an unincorporated business” if
the issues on which the applicant prevails are related primarily to personal
interests rather than to business interests.
(e) The number of employees of an applicant include all persons who
regularly perform services for remuneration for the applicant, under the
applicant's direction and control. Part-time employees shall be included on
a proportional basis.
(f) The net worth and number of employees of the applicant and all of its
affiliates shall be aggregated to determine eligibility. Any individual,
corporation or other entity that directly or indirectly controls or owns a
majority of the voting shares or other interest of the applicant, or any
corporation or other entity of which the applicant directly or indirectly
owns or controls a majority of the voting shares or other interest, will be
considered an affiliate for purposes of this part, unless the Administrative
Law Judge determines that such treatment would be unjust and contrary to the
purposes of the EAJA in light of the actual relationship between the
affiliated entities. In addition, the Administrative Law Judge may determine
that financial relationships of the applicant other than those described in
this paragraph constitute special circumstances that would make an award
unjust.
(g) An applicant that participates in a proceeding primarily on behalf of
one or more other persons or entities that would be ineligible is not itself
eligible for an award.
[ 47 FR 3786 , Jan. 27, 1982, as amended at 52 FR 11653 , Apr. 10, 1987; 61 FR 39898 , July 31, 1996]
§ 1.1505 Standards for awards.
top
(a) A prevailing party may receive an award for fees and expenses incurred
in connection either with an adversary adjudication, or with a significant
and discrete substantive portion of an adversary adjudication in which the
party has prevailed over the position of the Commission.
(1) The position of the Commission includes, in addition to the position
taken by the Commission in the adversary adjudication, the action or failure
to act by the agency upon which the adversary adjudication is based.
(2) An award will be reduced or denied if the Commission's position was
substantially justified in law and fact, if special circumstances make an
award unjust, or if the prevailing party unduly or unreasonably protracted
the adversary adjudication.
(b) If, in an adversary adjudication arising from a Commission action to
enforce a party's compliance with a statutory or regulatory requirement, the
demand of the Commission is substantially in excess of the decision in the
adversary adjudication and is unreasonable when compared with that decision,
under the facts and circumstances of the case, the party shall be awarded
the fees and other expenses related to defending against the excessive
demand, unless the party has committed a willful violation of law or
otherwise acted in bad faith, or special circumstances make an award unjust.
The “demand” of the Commission means the express demand which led to the
adversary adjudication, but it does not include a recitation by the
Commission of the maximum statutory penalty in the administrative complaint,
or elsewhere when accompanied by an express demand for a lesser amount.
(c) The burden of proof that an award should not be made is on the
appropriate Bureau (see §1.21) whose representative shall be called “Bureau
counsel” in this subpart K.
[ 61 FR 39899 , July 31, 1996]
§ 1.1506 Allowable fees and expenses.
top
(a) Awards will be based on rates customarily charged by persons engaged in
the business of acting as attorneys, agents and expert witnesses.
(b) No award for the fee of an attorney or agent under these rules may
exceed $75.00, or for adversary adjudications commenced on or after March
29, 1996, $125.00, per hour. No award to compensate an expert witness may
exceed the highest rate at which the Commission pays expert witnesses.
However, an award may also include the reasonable expenses of the attorney;
agent, or witness as a separate item, if the attorney, agent or witness
ordinarily charges its clients separately for such expenses.
(c) In determining the reasonableness of the fee sought for an attorney,
agent or expert witness, the Administrative Law Judge shall consider the
following:
(1) If the attorney, agent or witness is in private practice, his or her
customary fee for similar services, or, if an employee of the applicant, the
fully allocated cost of the services;
(2) The prevailing rate for similar services in the community in which the
attorney, agent or witness ordinarily performs services;
(3) The time actually spent in the representation of the applicant;
(4) The time reasonably spent in light of the difficulty or complexity of
the issues in the proceeding; and
(5) Such other factors as may bear on the value of the service provided.
(d) The reasonable cost of any study, analysis, engineering report, test,
project or similar matter prepared on behalf of a party may be awarded, to
the extent that the charge for the service does not exceed the prevailing
rate for similar services, and the study or other matter was necessary for
preparation of the applicant's case.
(e) Fees may be awarded only for work performed after designation of a
proceeding or after issuance of a show cause order.
[ 47 FR 3786 , Jan. 27, 1982, as amended at 61 FR 39899 , July 31, 1996]
§ 1.1507 Rulemaking on maximum rates for attorney fees.
top
(a) If warranted by an increase in the cost of living or by special
circumstances (such as limited availability of attorneys qualified to handle
certain types of proceedings), the Commission may adopt regulations
providing that attorney fees may be awarded at a rate higher than $125.00
per hour in some or all of the types of proceedings covered by this part.
The Commission will conduct any rulemaking proceedings for this purpose
under the informal rulemaking procedures of the Administrative Procedure
Act.
(b) Any person may file with the Commission a petition for rulemaking to
increase the maximum rate for attorney fees, in accordance with subpart C of
this chapter. The petition should identify the rate the petitioner believes
this agency should establish and the types of proceedings in which the rate
should be used. It should also explain fully the reasons why the higher rate
is warranted. This agency will respond to the petition by initiating a
rulemaking proceeding, denying the petition, or taking other appropriate
action.
[ 47 FR 3786 , Jan. 27, 1982, as amended at 61 FR 39899 , July 31, 1996]
§ 1.1508 Awards against other agencies.
top
If an applicant is entitled to an award because it prevails over another
agency of the United States that participates in a proceeding before the
Commission and takes a position that is not substantially justified, the
award or an appropriate portion of the award shall be made against that
agency. Counsel for that agency shall be treated as Bureau counsel for the
purpose of this subpart.
[ 47 FR 3786 , Jan. 27, 1982, as amended at 61 FR 39899 , July 31, 1996]
Information Required From Applicants
top
§ 1.1511 Contents of application.
top
(a) An application for an award of fees and expenses under EAJA shall
dentify the applicant and the proceeding for which an award is sought.
Unless the applicant is an individual, the application shall state the
number of employees of the applicant and describe briefly the type and
purpose of its organization or business. The application shall also:
(1) Show that the applicant has prevailed and identify the position of an
agency or agencies in the proceeding that the applicant alleges was not
substantially justified; or
(2) Show that the demand by the agency or agencies in the proceeding was
substantially in excess of, and was unreasonable when compared with, the
decision in the proceeding.
(b) The application shall also include a declaration that the applicant is a
small entity as defined in 5 U.S.C. 601 or a statement that the applicant's
net worth does not exceed $2 million (if an individual) or $7 million (for
all other applicants, including their affiliates). However, an applicant may
omit the statement concerning its net worth if:
(1) It attaches a copy of a ruling by the Internal Revenue Service that it
qualifies as an organization described in section 501(c)(3) of the Internal
Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a tax-exempt
organization not required to obtain a ruling from the Internal Revenue
Service on its exempt status, a statement that describes the basis for the
applicant's belief that it qualifies under such section; or
(2) It states that it is a cooperative association as defined in section
15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
(c) The application shall state the amount of fees and expenses for which an
award is sought.
(d) The application may also include any other matters that the applicant
wishes the Commission to consider in determining whether and in what amount
an award should be made.
(e) The application shall be signed by the applicant or an authorized
officer or attorney of the applicant. It shall also contain or be
accompanied by a written verification under oath or under penalty of perjury
that the information provided in the application is true and correct.
[ 47 FR 3786 , Jan. 27, 1982, as amended at 52 FR 11653 , Apr. 10, 1987; 61 FR 39899 , July 31, 1996]
§ 1.1512 Net worth exhibit.
top
(a) Each applicant except a qualified tax-exempt organization or cooperative
association must provide with its application a detailed exhibit showing the
net worth of the applicant and any affiliates (as defined in §1.1504(f) of
this part) at the time the proceeding was designated. The exhibit may be in
any form convenient to the applicant that provides full disclosure of the
applicant's and its affiliates' assets and liabilities and is sufficient to
determine whether the applicant qualifies under the standards in this
subpart. The Administrative Law Judge may require an applicant to file
additional information to determine its eligibility for an award.
(b) Ordinarily, the net worth exhibit will be included in the public record
of the proceeding. However, an applicant that objects to public disclosure
of information in any portion of the exhibit and believes there are legal
grounds for withholding it from disclosure may submit that portion of the
exhibit directly to the Administrative Law Judge in a sealed enevelope
labeled “Confidential Financial Information”, accompanied by a motion to
withhold the information from public disclosure. The motion shall describe
the information sought to be withheld and explain, in detail, why it falls
within one or more of the specific exemptions from mandatory disclosure
under the Freedom of Information Act, 5 U.S.C. 552(b)(1)–(9), why public
disclosue of the information would adversely affect the applicant, and why
disclosure is not required in the public interest. The material in question
shall be served on Bureau counsel, but need not be served on any other party
to the proceeding. If the Administrative Law Judge finds that the
information should not be withheld from disclosure, it shall be placed in
the public record of the proceeding. Otherwise, any request to inspect or
copy the exhibit shall be disposed of in accordance with the Commission's
established procedures under the Freedom of Information Act, §§0.441 through
0.466 of this chapter.
§ 1.1513 Documentation of fees and expenses.
top
The application shall be accompanied by full documentation of the fees and
expenses, including the cost of any study, analysis, engineering report,
test, project or similar matter, for which an award is sought. A separate
itemized statement shall be submitted for each professional firm or
individual whose services are covered by the application, showing hours
spent in connection with the proceeding by each individual, a description of
the specific services performed, the rate at which each fee has been
computed, any expenses for which reimbursement is sought, the total amount
claimed, and the total amount paid or payable by the applicant or by any
other person or entity for the services provided. The Administrative Law
Judge may require the applicant to provide vouchers, receipts, or other
substantiation for any expenses claimed.
[ 47 FR 3786 , Jan. 27, 1982, as amended at 61 FR 39899 , July 31, 1996]
§ 1.1514 When an application may be filed.
top
(a) An application may be filed whenever the applicant has prevailed in the
proceeding or in a significant and discrete substantive portion of the
proceeding, or when the demand of the Commission is substantially in excess
of the decision in the proceeding, but in no case later than 30 days after
the Commission's final disposition of the proceeding.
(b) If review or reconsideration is sought or taken of a decision as to
which an applicant believes it has prevailed, proceedings for the award of
fees shall be stayed pending final disposition of the underlying
controversy.
(c) For purposes of this rule, final disposition means the later of
(1) The date on which an initial decision or other recommended disposition
of the merits of the proceeding by an Administrative Law Judge becomes
administratively final;
(2) Issuance of an order disposing of any petitions for reconsideration of
the Commission's order in the proceeding;
(3) If no petition for reconsideration is filed, the last date on which such
petition could have been filed;
(4) Issuance of a final order by the Commission or any other final
resolution of a proceeding, such as settlement or voluntary dismissal, which
is not subject to a petition for reconsideration, or to a petition for
judicial review; or
(5) Completion of judicial action on the underlying controversy and any
subsequent Commission action pursuant to judicial mandate.
[ 47 FR 3786 , Jan. 27, 1982, as amended at 61 FR 39899 , July 31, 1996]
Procedures for Considering Applications
top
§ 1.1521 Filing and service of documents.
top
Any application for an award or other pleading relating to an application
shall be filed and served on all parties to the proceeding in the same
manner as other pleadings in the proceeding, except as provided in
§1.1512(b) for confidential financial information.
§ 1.1522 Answer to application.
top
(a) Within 30 days after service of an application Bureau counsel may file
an answer to the application. Unless Bureau counsel requests an extension of
time for filing or files a statement of intent to negotiate under paragraph
(b) of this section, failure to file an answer within the 30-day period may
be treated as a consent to the award request.
(b) If Bureau counsel and the applicant believe that the issues in the fee
application can be settled, they may jointly file a statement of their
intent to negotiate a settlement. The filing of this statement shall extend
the time for filing an answer for an additional 30 days, and further
extensions may be granted by the Administrative Law Judge upon request by
Bureau counsel and the applicant.
(c) The answer shall explain in detail any objections to the award requested
and identify the facts relied on in support of Bureau counsel's position. If
the answer is based on any alleged facts not already in the record of the
proceeding, Bureau counsel shall include with the answer either supporting
affidavits or a request for further proceedings under §1.1526.
§ 1.1523 Reply.
top
Within 15 days after service of an answer, the applicant may file a reply.
If the reply is based on any alleged facts not already in the record of the
proceeding, the applicant shall include with the reply either supporting
affidavits or a request for further proceedings under §1.1526.
§ 1.1524 Comments by other parties.
top
Any party to a proceeding other than the applicant and Bureau counsel may
file comments on an application within 30 days after it is served or an
answer within 15 days after it is served. A commenting party may not
participate further in proceedings on the application unless the
Administrative Law Judge determines that the public interest requires such
participation in order to permit full exploration of matters raised in the
comments.
[ 47 FR 3786 , Jan. 27, 1982, as amended at 61 FR 39899 , July 31, 1996]
§ 1.1525 Settlement.
top
The applicant and Bureau counsel may agree on a proposed settlement of the
award before final action on the application, either in connection with a
settlement of the underlying proceeding, or after the underlying proceeding
has been concluded. If a prevailing party and Bureau counsel agree on a
proposed settlement of an award before an application has been filed, the
application shall be filed with the proposed settlement. If the
Administrative Law Judge approves the proposed settlement, it shall be
forwarded to the Commission for final approval.
§ 1.1526 Further proceedings.
top
(a) Ordinarily, the determination of an award will be made on the basis of
the written record. However, on request of either the applicant or Bureau
counsel, or on his or her own initiative, the Administrative Law Judge may
order further proceedings, such as an informal conference, oral argument,
additional written submissions or, as to issues other than excessive demand
or substantial justification, an evidentiary hearing. Such further
proceedings shall be held only when necessary for full and fair resolution
of the issues arising from the application, and shall be conducted as
promptly as possible. Whether or not the position of the agency embodied an
excessive demand or was substantially justified shall be determined on the
basis of the administrative record, as a whole, which is made in the
adversary adjudication for which fees and other expenses are sought.
(b) A request that the Administrative Law Judge order further proceedings
under this section shall specifically identify the information sought or the
disputed issues and shall explain why the additional proceedings are
necessary to resolve the issues.
[ 47 FR 3786 , Jan. 27, 1982, as amended at 52 FR 11653 , Apr. 10, 1987; 61 FR 39899 , July 31, 1996]
§ 1.1527 Decision.
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The Administrative Law Judge shall issue an initial decision on the
application as soon as possible after completion of proceedings on the
application. The decision shall include written findings and conclusions
regarding the applicant's eligibility and whether the applicant was a
prevailing party or whether the demand by the agency or agencies in the
proceeding was substantially in excess of, and was unreasonable when
compared with, the decision in the adversary adjudication, and an
explanation of the reasons for any difference between the amount requested
and the amount awarded. The decision shall also include, if at issue,
findings on whether the Commission's position substantially justified,
whether the applicant unduly protracted the proceedings, committed a willful
violation of law, or otherwise acted in bad faith, or whether special
circumstances make an award unjust. If the applicant has sought an award
against more than one agency, the decision shall allocate responsibility for
payment of any award made among the agencies, and shall explain the reasons
for the allocation made.
[ 61 FR 39900 , July 31, 1996]
§ 1.1528 Commission review.
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Either the applicant or Bureau counsel may seek Commission review of the
initial decision on the application, or the Commission may decide to review
the decision on its own initiative, in accordance with §§1.276 through 1.282
of this chapter. Except as provided in §1.1525, if neither the applicant nor
Bureau counsel seeks review and the Commission does not take review on its
own initiative, the initial decision on the application shall become a final
decision of the Commission 50 days after it is issued. Whether to review a
decision is a matter within the discretion of the Commission. If review is
taken, the Commission will issue a final decision on the application or
remand the application to the Administrative Law Judge for further
proceedings.
[ 47 FR 3786 , Jan. 27, 1982, as amended at 61 FR 39900 , July 31, 1996]
§ 1.1529 Judicial review.
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Judicial review of final agency decisions on awards may be sought as
provided in 5 U.S.C. 504(c)(2).
§ 1.1530 Payment of award.
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An applicant seeking payment of an award from the Commission shall submit to
the General Counsel a copy of the Commission's final decision granting the
award, accompanied by a statement that the applicant will not seek review of
the decision in the United States courts, or a copy of the court's order
directing payment. The Commission will pay the amount awarded to the
applicant unless judicial review of the award or the underlying decision of
the adversary adjudication has been sought by the applicant or any other
party to the proceeding.
Subpart L—Random Selection Procedures for Mass Media Services
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Authority: 47 U.S.C. 309(i).
Source: 48 FR 27202 , June 13, 1983, unless otherwise noted.
General Procedures
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§ 1.1601 Scope.
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The provisions of this subpart, and the provisions referenced herein, shall
apply to applications for initial licenses or construction permits or for
major changes in the facilities of authorized stations in the following
services:
(a)–(b) [Reserved]
[ 48 FR 27202 , June 13, 1983, as amended at 63 FR 48622 , Sept. 11, 1998]
§ 1.1602 Designation for random selection.
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Applications in the services specified in §1.1601 shall be tendered,
accepted or dismissed, filed, publicly noted and subject to random selection
and hearing in accordance with any relevant rules. Competing applications
for an initial license or construction permit shall be designated for random
selection and hearing in accordance with the procedures set forth in
§§1.1603 through 1.1623 and §73.3572 of this chapter.
§ 1.1603 Conduct of random selection.
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The random selection probabilities will be calculated in accordance with the
formula set out in rules §§1.1621 through 1.1623.
[ 48 FR 27202 , June 13, 1983, as amended at 48 FR 43330 , Sept. 23, 1983]
§ 1.1604 Post-selection hearings.
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(a) Following the random selection, the Commission shall announce the
“tentative selectee” and, where permitted by §73.3584 invite Petitions to
Deny its application.
(b) If, after such hearing as may be necessary, the Commission determines
that the “tentative selectee” has met the requirements of §73.3591(a) it
will make the appropriate grant. If the Commission is unable to make such a
determination, it shall order that another random selection be conducted
from among the remaining mutually exclusive applicants, in accordance with
the provisions of this subpart.
(c) If, on the basis of the papers before it, the Commission determines that
a substantial and material question of fact exists, it shall designate that
question for hearing. Hearings may be conducted by the Commission or, in the
case of a matter which requires oral testimony for its resolution, an
Administrative Law Judge.
[ 48 FR 27202 , June 13, 1983, as amended at 63 FR 48622 , Sept. 11, 1998]
§ 1.1621 Definitions.
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(a) Medium of mass communications means:
(1) A daily newspaper;
(2) A cable television system; and
(3) A license or construction permit for
(i) A television station, including low power TV or TV translator,
(ii) A standard (AM) radio station,
(iii) An FM radio station,
(iv) A direct broadcast satellite transponder under the editorial control of
the licensee, and
(v) A Multipoint Distribution Service station.
(b) Minority group means:
(1) Blacks,
(2) Hispanics
(3) American Indians,
(4) Alaska Natives,
(5) Asians, and
(6) Pacific Islanders.
(c) Owner means the applicant and any individual, partnership, trust,
unincorporated association, or corporation which:
(1) If the applicant is a proprietorship, is the proprietor,
(2) If the applicant is a partnership, holds any partnership interest,
(3) If the applicant is a trust, is the beneficiary thereof,
(4) If the applicant is an unincorporated association or non-stock
corporation, is a member, or, in the case of a nonmembership association or
corporation, a director,
(5) If the applicant is a stock corporation, is the beneficial owner of
voting shares.
Note 1: For purposes of applying the diversity preference to such entities
only the other ownership interests of those with a 1% or more beneficial
interest in the entity will be cognizable.
Note 2: For the purposes of this section, a daily newspaper is one which is
published four or more days per week, which is in the English language, and
which is circulated generally in the community of publication. A college
newspaper is not considered as being circulated generally.
Note 3: For the purposes of applying the diversity preference, the ownership
interests of the spouse of an applicant's principal will not presumptively
be attributed to the applicant.
[ 48 FR 27202 , June 13, 1983, as amended at 50 FR 5992 , Feb. 13, 1985]
§ 1.1622 Preferences.
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(a) Any applicant desiring a perference in the random selection shall so
indicate as part of its application. Such an applicant shall list any owner
who owns all or part of a medium of mass communications or who is a member
of a minority group, together with a precise identification of the ownership
interest held in such medium of mass communications or name of the minority
group, respectively. Such an applicant shall also state whether more than
50% of the ownership interests in it are held by members of minority groups
and the number of media of mass communications more than 50% of whose
ownership interests are held by the applicant and/or its owners.
(b) Preference factors as incorporated in the percentage calculations in
§1.1623, shall be granted as follows:
(1) Applicants, more than 50% of whose ownership interests are held by
members of minority groups—2:1.
(2) Applicants whose owners in the aggregate hold more than 50% of the
ownership interests in no other media of mass communications—2:1.
(3) Applicants whose owners in the aggregate hold more than 50% of the
ownership interest in one, two or three other media of mass
communications—1.5:1.
(c) Applicants may receive preferences pursuant to §1.1622(b)(1) and either
§1.1622 (b)(2) or (b)(3).
(d) Preferences will be determined on the basis of ownership interests as of
the date of release of the latest Public Notice announcing the acceptance of
the last-filed mutually exclusive application.
(e) No preferences pursuant to §1.1622 (b)(2) or (b)(3) shall be granted to
any LPTV or MDS applicant whose owners, when aggregated, have an ownership
interest of more than 50 percent in the following media of mass
communications, if the service areas of those media as described herein
wholly encompass or are encompassed by the protected predicted contour,
computed in accordance with §74.707(a), of the low power TV or TV translator
station for which the license or permit is sought, or computed in accordance
with §21.902(d), of the MDS station for which the license or permit is
sought.
(1) AM broadcast station—predicted or measured 2 mV/m groundwave contour,
computed in accordance with §73.183 or §73.186;
(2) FM broadcast station—predicted 1 mV/m contour, computed in accordance
with §73.313;
(3) TV broadcast station—Grade A contour, computed in accordance with
§73.684;
(4) Low power TV or TV translator station—protected predicted contour,
computed in accordance with §74.707(a);
(5) Cable television system franchise area, nor will the diversity
preference be available to applicants whose proposed transmitter site is
located within the franchise area of a cable system in which its owners, in
the aggregate, have an ownership interest of more than 50 percent.
(6) Daily newspaper community of publication, nor will the diversity
preference be available to applicants whose proposed transmitter site is
located within the community of publication of a daily newspaper in which
its owners, in the aggregate, have an ownership interest of more than 50
percent.
(7) Multipoint Distribution Service—station service area, computed in
accordance with §21.902(d).
[ 48 FR 27202 , June 13, 1983, as amended at 50 FR 5992 , Feb. 13, 1985; 50 FR 11161 , Mar. 20, 1985]
§ 1.1623 Probability calculation.
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(a) All calculations shall be computed to no less than three significant
digits. Probabilities will be truncated to the number of significant digits
used in a particular lottery.
(b) Divide the total number of applicants into 1.00 to determine
pre-preference probabilities.
(c) Multiply each applicant's pre-preference probability by the applicable
preference from §1.1622 (b)(2) or (b)(3).
(d) Divide each applicant's probability pursuant to paragraph (c) of this
section by the sum of such probabilities to determine intermediate
probabilities.
(e) Add the intermediate probabilities of all applicants who received a
preference pursuant to §1.1622 (b)(2) or (b)(3).
(f)(1) If the sum pursuant to paragraph (e) of this section is .40 or
greater, proceed to paragraph (g) of this section.
(2) If the sum pursuant to paragraph (e) of this section is less than .40,
then multiply each such intermediate probability by the ratio of .40 to such
sum. Divide .60 by the number of applicants who did not receive a preference
pursuant to §1.1622 (b)(2) or (b)(3) to determine their new intermediate
probabilities.
(g) Multiply each applicant's probability pursuant to paragraph (f) of this
section by the applicable preference ratio from §1.1622(b)(1).
(h) Divide each applicant's probability pursuant to paragraph (g) of this
section by the sum of such probabilities to determine the final selection
percentage.
Subpart M—Cable Operations and Licensing System (COALS)
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Source: 68 FR 27001 , May 19, 2003, unless otherwise noted.
§ 1.1701 Purpose.
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To provide electronic filing of applications, notifications, registration
statements, reports, and related documents in the Multichannel Video and
Cable Television Services and the Cable Television Relay Services.
§ 1.1702 Scope.
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This subpart applies to filings required by §§76.403, 76.1610, 76.1801,
76.1803, & 76.1804, and 78.11 through 78.36 of this chapter.
§ 1.1703 Definitions.
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For purposes of this subpart, the following definitions apply:
(a) Application. A request on Form 327 for a station license as defined in
Section 3(b) of the Communications Act, completed in accordance with §78.15
and signed in accordance with §78.16 of this chapter, or a similar request
to amend a pending application or to modify or renew an authorization. The
term also encompasses requests to assign rights granted by the authorization
or to transfer control of entities holding authorizations.
(b) Authorization. A written instrument issued by the FCC conveying
authority to operate, for a specified period, a station in the Cable
Television Relay Service. In addition, this term includes authority conveyed
by operation of rule upon filing notification of aeronautical frequency
usage by MVPDs or registration statements by cable operators.
(c) Cable Operations And Licensing System (COALS). The consolidated
database, application filing system, and processing system for Multichannel
Video and Cable Television Services (MVCTS) and the Cable Television Relay
Service (CARS). COALS supports electronic filing of all applications,
notifications, registrations, reports, and related documents by applicants
and licensees in the MVCTS and CARS, and provides public access to licensing
information.
(d) Cable Television Relay Service (CARS). All services authorized under
part 78 of this title.
(e) Filings. Any application, notification, registration statement, or
report in plain text or, when as prescribed, on FCC Forms 320, 321, 322,
324, 325, or 327, whether filed in paper form or electronically.
(f) Multichannel Video and Cable Television Services (MVCTS). All services
authorized or operated in accordance with part 76 of this title.
(g) Receipt date. The date an electronic or paper application is received at
the appropriate location at the Commission or the lock box bank. Major
amendments to pending applications as defined in §78.109 of this chapter,
will result in the assignment of a new receipt date.
(h) Signed. For manually filed applications only, an original hand-written
signature. For electronically filed applications only, an electronic
signature. An electronic signature shall consist of the name of the
applicant transmitted electronically via COALS and entered on the filing as
a signature.
§ 1.1704 Station files.
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Applications, notifications, correspondence, electronic filings and other
material, and copies of authorizations, comprising technical, legal, and
administrative data relating to each system in the Multichannel Video and
Cable Television Services (MVCTS) and the Cable Television Relay Service
(CARS) are maintained by the Commission in COALS and the Public Reference
Room. These files constitute the official records for these stations and
supersede any other records, database or lists from the Commission or other
sources.
§ 1.1705 Forms; electronic and manual filing.
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(a) Application forms. Operators in the Multichannel Video and Cable
Television Services (MVCTS) and applicants and licensees the Cable
Television Relay Service (CARS) shall use the following forms and associated
schedules:
(1) FCC Form 320, Basic Signal Leakage Performance Report. FCC Form 320 is
used by MVPDs to report compliance with the basic signal leakage performance
criteria.
(2) FCC Form 321, Aeronautical Frequency Notification. FCC Form 321 is used
by MVPDs to notify the Commission prior to operating channels in the
aeronautical frequency bands.
(3) FCC Form 322, Cable Community Registration. FCC Form 322 is used by
cable system operators to commence operation for each community unit.
(4) FCC Form 324, Operator, Address, and Operational Information Changes.
FCC Form 324 is used by cable operators to notify the Commission of changes
in administrative data about the operator and operational status changes.
(5) FCC Form 325, Cable Television System Report. FCC Form 325 is used by
cable operators to report general information and signal and frequency
distribution data.
(6) FCC Form 327, Application for Cable Television Relay Service Station
License. FCC Form 327 and associated schedules is used to apply for initial
authorizations, modifications to existing authorizations, amendments to
pending applications, and renewals of station authorizations. FCC Form 327
is also used to apply for Commission consent to assignments of existing CARS
authorizations and to apply for Commission consent to the transfer of
control of entities holding CARS authorizations.
(b) Electronic filing. Six months after the Commission announces their
availability for electronic filing, all applications and other filings using
FCC Forms 320, 321, 322, 324, 325, and 327 and their respective associated
schedules must be filed electronically in accordance with the electronic
filing instructions provided by COALS.
(1) There will be two ways for parties to electronically file applications
with the Commission: batch and interactive.
(i) Batch filing. Batch filing involves data transmission in a single
action. Batch filers will follow a set Commission format for entering data.
Batch filers will then send, via file transfer protocol, batches of data to
the Commission for compiling. COALS will compile such filings overnight and
respond the next business day with a return or dismissal of any defective
filings. Thus, batch filers will not receive immediate correction from the
system as they enter the information.
(ii) Interactive filing. Interactive filing involves data transmission with
screen-by-screen prompting from the Commission's COALS system. Interactive
filers will receive prompts from the system identifying data entries outside
the acceptable ranges of data for the individual fields at the time the data
entry is made.
(2) Attachments to applications must be uploaded along with the
electronically filed application whenever possible.
(3) Any associated documents submitted with an application must be uploaded
as attachments to the application whenever possible. The attachment should
be uploaded via COALS in Adobe Acrobat Portable Document Format (PDF)
whenever possible.
(c) Manual filing. (1) Forms 320, 321, 322, 324, 325, and 327 may be filed
manually.
(2) Manual filings must be submitted to the Commission at the appropriate
address with the appropriate filing fee. The addresses for filing and the
fee amounts for particular applications are listed in subpart G of this
part, and in the appropriate fee filing guide for each service available
from the Commission's Forms Distribution Center by calling 1–800–418–FORM
(3676). The form may be downloaded from the Commission's Web site:
http://www.fcc.gov.
(3) Manual filings requiring fees as set forth at subpart G, of this part
must be filed in accordance with §0.401(b) of this chapter.
(4) Manual filings that do not require fees must be addressed and sent to
the Media Bureau, Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554.
(5) FCC forms may be reproduced and the copies used in accordance with the
provisions of §0.409 of this chapter.
(d) Applications requiring prior coordination. Parties filing applications
that require frequency coordination shall, prior to filing, complete all
applicable frequency coordination requirements in §78.36 of this chapter.
§ 1.1706 Content of filings.
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(a) General. Filings must contain all information requested on the
applicable form and any additional information required by the rules in this
title and any rules pertaining to the specific service for which the filing
is made.
(b) Antenna locations. Applications for CARS stations and aeronautical
frequency usage notifications must describe each transmitting antenna site
or center of the cable system, respectively, by its geographical
coordinates. Geographical coordinates must be specified in degrees, minutes,
and seconds to the nearest tenth of a second of latitude and longitude.
Submissions must provide such data using the NAD83 datum.
(c) Antenna structure registration. Owners of certain antenna structures
must notify the Federal Aviation Administration and register with the
Commission as required by Part 17 of this chapter. Applications proposing
the use of one or more new or existing antenna structures must contain the
FCC Antenna Registration Number(s) of each structure for which registration
is required. If registration is not required, the applicant must provide
information in its application sufficient for the Commission to verify this
fact.
(d) Environmental concerns. Each applicant is required to indicate at the
time its application is filed whether a Commission grant of the application
may have a significant environmental effect, as defined by §1.1307. If yes,
an Environmental Assessment, required by §1.1311, must be filed with the
application and environmental review by the Commission must be completed
prior to construction.
(e) International coordination. Channel assignments and usage under part 78
are subject to the applicable provisions and requirements of treaties and
other international agreements between the United States government and the
governments of Canada and Mexico.
(f) Taxpayer Identification Number (TINs). All filers are required to
provide their Taxpayer Identification Numbers (TINS) (as defined in 26
U.S.C. 6109) to the Commission, pursuant to the Debt Collection Improvement
Act of 1996 (DCIA). Under the DCIA, the FCC may use an applicant or
licensee's TIN for purposes of collecting and reporting to the Department of
the Treasury any delinquent amounts arising out of such person's
relationship with the Government.
§ 1.1707 Acceptance of filings.
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Regardless of filing method, all submissions with an insufficient fee,
grossly deficient or inaccurate information, or those without a valid
signature will be dismissed immediately. For any submission that is found
subsequently to have minimally deficient or inaccurate information, we will
notify the filer of the defect. We will allow 15 days from the date of this
notification for correction or amendment of the submission if the amendment
is minor. If the applicant files a timely corrected application, it will
ordinarily be processed as a minor amendment in accordance with the
Commission's rules. Thus it will have no effect on the initial filing date
of the application or the applicant's filing priority. If, however, the
amendment made by the applicant is not a simple correction, but constitutes
a major amendment to the application, it will be governed by the rules and
procedures applicable to major amendments, that is, it will be treated as a
new application with a new filing date and new fees must be paid by the
applicant. Finally, if the applicant fails to submit an amended application
within the period specified in the notification, the application will be
subject to dismissal for failure to prosecute.
Subpart N—Enforcement of Nondiscrimination on the Basis of Disability In
Programs or Activities Conducted By the Federal Communications Commission
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Source: 68 FR 22316 , Apr. 28, 2003, unless otherwise noted.
§ 1.1801 Purpose.
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The purpose of this part is to effectuate section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of 1978,
which amended section 504 of the Rehabilitation Act of 1973 (section 504) to
prohibit discrimination on the basis of disability in programs or activities
conducted by Executive agencies or the United States Postal Service.
§ 1.1802 Applications.
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This part applies to all programs or activities conducted by the Federal
Communications Commission. The programs or activities of entities that are
licensed or certified by the Federal Communications Commission are not
covered by these regulations.
§ 1.1803 Definitions.
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For purposes of this part, the term—
Auxiliary aids means services or devices that enable persons with impaired
sensory, manual, or speaking skills to have an equal opportunity to
participate in, and enjoy the benefits of, programs or activities conducted
by the Commission. For example, auxiliary aids useful for persons with
impaired vision include readers, Brailled materials, audio recordings, and
other similar services and devices. Auxiliary aids useful for persons with
impaired hearing include telephone handset amplifiers, telephones compatible
with hearing aids, telecommunication devices for deaf persons (TTY/TDDs),
interpreters, Computer-aided realtime transcription (CART), captioning,
notetakers, written materials, and other similar services and devices.
Commission means Federal Communications Commission.
Complete complaint means a written statement, or a complaint in audio,
Braille, electronic, and/or video format, that contains the complainant's
name and address and describes the Commission's alleged discriminatory
action in sufficient detail to inform the Commission of the nature and date
of the alleged violation of section 504. It shall be signed by the
complainant or by someone authorized to do so on his or her behalf. The
signature of the complainant, or signature of someone authorized by the
complainant to do so on his or her behalf, shall be provided on print
complaints. Complaints in audio, Braille, electronic, and/or video formats
shall contain an affirmative identity statement of the individual, which for
this purpose shall be considered to be functionally equivalent to a
complainant's signature. Complaints filed on behalf of classes or third
parties shall describe or identify (by name, if possible) the alleged
victims of discrimination.
Facility means all or any portion of buildings, structures, equipment,
roads, walks, parking lots, or other real or personal property.
General Counsel means the General Counsel of the Federal Communications
Commission.
Individual with a disability means any individual who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment. As used in this definition, the phrase:
(1) Physical or mental impairment includes, but is not limited to—
(i) Any physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory, including
speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic
and lymphatic; skin; and endocrine;
(ii) Any mental or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific learning
disabilities;
(iii) Diseases and conditions such as orthopedic, visual, speech, and
hearing impairments; cerebral palsy; epilepsy; muscular dystrophy; multiple
sclerosis; cancer; heart disease; diabetes; mental retardation; emotional
illness; and drug addiction and alcoholism.
(2) Major life activities include functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.
(3) Has a record of such an impairment means has a history of, or has been
misclassified as having, a mental or physical impairment that substantially
limits one or more major life activities.
(4) Is regarded as having an impairment means—
(i) Has a physical or mental impairment that does not substantially limit
major life activities but is treated by the Commission as constituting such
a limitation;
(ii) Has a physical or mental impairment that substantially limits major
life activities only as a result of the attitudes of others toward such
impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the Commission as having such impairment.
Managing Director means the individual delegated authority as described in
47 CFR 0.11.
Programs or Activities mean any activity of the Commission permitted or
required by its enabling statutes, including but not limited to any
licensing or certification program, proceeding, investigation, hearing,
meeting, board or committee.
Qualified individual with a disability means—
(1) With respect to any Commission program or activity under which an
individual is required to perform services or to achieve a level of
accomplishment, an individual with a disability who, with or without
reasonable modification to rules, policies, or practices or the provision of
auxiliary aids, meets the essential eligibility requirements for
participation in the program or activity and can achieve the purpose of the
program or activity; or
(2) With respect to any other program or activity, an individual with a
disability who, with or without reasonable modification to rules, policies,
or practices or the provision of auxiliary aids, meets the essential
eligibility requirements for participation in, or receipt of benefits from,
that program or activity; or
(3) The definition of that term as defined for purposes of employment in 29
CFR 1630.2(m), which is made applicable to this part by §1.1840.
Section 504 means section 504 of the Rehabilitation Act of 1973, Public Law
93–112, 87 Stat. 394, 29 U.S.C. 794, as amended by the Rehabilitation Act
Amendments of 1974, Public Law 93–516, 88 Stat. 1617, and the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, Public Law 95–602, 92 Stat. 2955, and the Rehabilitation
Act Amendments of 1986, sec. 103(d), Public Law 99–506, 100 Stat. 1810. As
used in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
Section 504 Officer is the Commission employee charged with overseeing the
Commission's section 504 programs and activities.
§ 1.1805 Federal Communications Commission Section 504 Programs and
Activities Accessibility Handbook.
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The Consumer & Governmental Affairs Bureau shall publish a “Federal
Communications Commission Section 504 Programs and Activities Accessibility
Handbook” (“Section 504 Handbook”) for Commission staff, and shall update
the Section 504 Handbook as necessary and at least every three years. The
Section 504 Handbook shall be available to the public in hard copy upon
request and electronically on the Commission's Internet website. The Section
504 Handbook shall contain procedures for releasing documents, holding
meetings, receiving comments, and for other aspects of Commission programs
and activities to achieve accessibility. These procedures will ensure that
the Commission presents a consistent and complete accommodation policy
pursuant to 29 U.S.C. 794, as amended. The Section 504 Handbook is for
internal staff use and public information only, and is not intended to
create any rights, responsibilities, or independent cause of action against
the Federal Government.
§ 1.1810 Review of compliance.
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(a) The Commission shall, beginning in 2004 and at least every three years
thereafter, review its current policies and practices in view of advances in
relevant technology and achievability. Based on this review, the Commission
shall modify its practices and procedures to ensure that the Commission's
programs and activities are fully accessible.
(b) The Commission shall provide an opportunity to interested persons,
including individuals with disabilities or organizations representing
individuals with disabilities, to participate in the review process by
submitting comments. Written comments shall be signed by the commenter or by
someone authorized to do so on his or her behalf. The signature of the
commenter, or signature of someone authorized by the commenter to do so on
his or her behalf, shall be provided on print comments. Comments in audio,
Braille, electronic, and/or video formats shall contain an affirmative
identity statement of the individual, which for this purpose shall be
considered to be functionally equivalent to a commenter's signature.
(c) The Commission shall maintain on file and make available for public
inspection for four years following completion of the compliance review—
(1) A description of areas examined and problems identified;
(2) All comments and complaints filed regarding the Commission's compliance;
and
(3) A description of any modifications made.
§ 1.1811 Notice.
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The Commission shall make available to employees, applicants, participants,
beneficiaries, and other interested persons information regarding the
regulations set forth in this part, and their applicability to the programs
or activities conducted by the Commission. The Commission shall make such
information available to such persons in such manner as the Section 504
Officer finds necessary to apprise such persons of the protections against
discrimination assured them by section 504.
§ 1.1830 General prohibitions against discrimination.
top
(a) No qualified individual with a disability shall, on the basis of
disability, be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activity
conducted by the Commission.
(b) Discriminatory actions prohibited.
(1) The Commission, in providing any aid, benefit, or service, may not,
directly or through contractual, licensing, or other arrangements, on the
basis of disability—
(i) Deny a qualified individual with a disability the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with a disability an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with a disability with an aid, benefit,
or service that is not as effective in affording equal opportunity to obtain
the same result, to gain the same benefit, or to reach the same level of
achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to individuals
with disabilities or to any class of individuals with disabilities than is
provided to others unless such action is necessary to provide qualified
individuals with disabilities with aid, benefits, or services that are as
effective as those provided to others;
(v) Deny a qualified individual with a disability the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with a disability in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The Commission may not deny a qualified individual with a disability the
opportunity to participate in any program or activity even where the
Commission is also providing equivalent permissibly separate or different
programs or activities for persons with disabilities.
(3) The Commission may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration—
(i) That have the purpose or effect of subjecting qualified individuals with
disabilities to discrimination on the basis of disability; or
(ii) That have the purpose or effect of defeating or substantially impairing
accomplishment of the objectives of a program or activity with respect to
individuals with disabilities.
(4) The Commission may not, in determining the site or location of a
facility, make selections—
(i) That have the purpose or effect of excluding individuals with
disabilities from, denying them the benefits of, or otherwise subjecting
them to discrimination under any program or activity conducted by the
Commission; or
(ii) That have the purpose or effect of defeating or substantially impairing
the accomplishment of the objectives of a program or activity with respect
to individuals with disabilities.
(5) The Commission, in the selection of procurement contractors, may not use
criteria that subject qualified individuals with disabilities to
discrimination on the basis of disability.
(6) The Commission may not administer a licensing or certification program
in a manner that subjects qualified individuals with disabilities to
discrimination on the basis of disability, nor may the Commission establish
requirements for the programs or activities of licensees or certified
entities that subject qualified individuals with disabilities to
discrimination on the basis of disability. However, the programs or
activities of entities that are licensed or certified by the Commission are
not, themselves, covered by this part.
(7) The Commission shall make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to avoid
discrimination on the basis of disability, unless the Commission can
demonstrate that making the modifications would fundamentally alter the
nature of the program, service, or activity.
(c) This part does not prohibit the exclusion of persons without
disabilities from the benefits of a program limited by Federal statute or
Executive order to individuals with disabilities, or the exclusion of a
specific class of individuals with disabilities from a program limited by
Federal statute or Executive order to a different class of individuals with
disabilities.
(d) The Commission shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals with
disabilities.
§ 1.1840 Employment.
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No qualified individual with a disability shall, on the basis of disability,
be subjected to discrimination in employment under any program or activity
conducted by the Commission. The definitions, requirements and procedures of
section 501 of the Rehabilitation Act of 1973, 29 U.S.C. 791, as established
by the Equal Employment Opportunity Commission in 29 CFR parts 1614 and
1630, as well as the procedures set forth in the Basic Negotiations
Agreement Between the Federal Communications Commission and National
Treasury Employees Union, as amended, and Subchapter III of the Civil
Service Reform Act of 1978, 5 U.S.C. 7121(d), shall apply to employment in
federally conducted programs or activities.
§ 1.1849 Program accessibility: Discrimination prohibited.
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(a) Except as otherwise provided in §1.1850, no qualified individual with a
disability shall, because the Commission's facilities are inaccessible to,
or unusable, by individuals with disabilities, be denied the benefits of, be
excluded from participation in, or otherwise be subjected to discrimination
under any program or activity conducted by the Commission.
(b) Individuals shall request accessibility to the Commission's programs and
facilities by contacting the Commission's Section 504 Officer. Such contact
may be made in the manner indicated in the FCC Section 504 Handbook. The
Commission will make every effort to provide accommodations requiring the
assistance of other persons ( e.g., American Sign Language interpreters,
communication access realtime translation (CART) providers, transcribers,
captioners, and readers) if the request is made to the Commission's Section
504 Officer a minimum of five business days in advance of the program. If
such requests are made fewer than five business days prior to an event, the
Commission will make every effort to secure accommodation services, although
it may be less likely that the Commission will be able to secure such
services.
§ 1.1850 Program accessibility: Existing facilities.
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(a) General. Except as otherwise provided in this paragraph, the Commission
shall operate each program or activity so that the program or activity, when
viewed in its entirety, is readily accessible to and usable by individuals
with disabilities. This paragraph does not—
(1) Necessarily require the Commission to make each of its existing
facilities accessible to and usable by individuals with disabilities;
(2) Require the Commission to take any action that it can demonstrate would
result in a fundamental alteration in the nature of a program or activity,
or in undue financial and administrative burdens. In those circumstances
where Commission personnel believe that the proposed action would
fundamentally alter the program or activity or would result in undue
financial and administrative burdens, the Commission has the burden of
proving that compliance with §1.1850(a) would result in such alteration or
burdens. The decision that compliance would result in such alteration or
burdens must be made by the Managing Director, in consultation with the
Section 504 Officer, after considering all Commission resources available
for use in the funding and operation of the conducted program or activity,
and must be accompanied by a written statement of the reasons for reaching
that conclusion. If an action would result in such an alteration or such
burdens, the Commission shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
individuals with disabilities receive the benefits and services of the
program or activity.
(b) Methods. The Commission may comply with the requirements of this section
through such means as the redesign of equipment, reassignment of services to
accessible buildings, assignment of aides to beneficiaries, home visits,
delivery of services at alternate accessible sites, alteration of existing
facilities and construction of new facilities, or any other methods that
result in making its programs or activities readily accessible to and usable
by individuals with disabilities. The Commission is not required to make
structural changes in existing facilities where other methods are effective
in achieving compliance with this section. The Commission, in making
alterations to existing buildings, shall meet accessibility requirements to
the extent compelled by the Architectural Barriers Act of 1968, as amended
(42 U.S.C. 4151–4157), and any regulations implementing it. In choosing
among available methods for meeting the requirements of this section, the
Commission shall give priority to those methods that offer programs and
activities to qualified individuals with disabilities in the most integrated
setting appropriate.
(c) Time period for compliance. The Commission shall comply with the
obligations established under this section within sixty (60) days of the
effective date of this subpart, except that where structural changes in
facilities are undertaken, such changes shall be made within three (3) years
of the effective date of this part.
(d) Transition plan. In the event that structural changes to facilities will
be undertaken to achieve program accessibility, the Commission shall
develop, within six (6) months of the effective date of this subpart, a
transition plan setting forth the steps necessary to complete such changes.
The Commission shall provide an opportunity to interested persons, including
individuals with disabilities or organizations representing individuals with
disabilities, to participate in the development of the transition plan by
submitting comments (both oral and written). A copy of the transitional plan
shall be made available for public inspection. The plan shall, at a
minimum—
(1) Identify physical obstacles in the Commission's facilities that limit
the accessibility of its programs or activities to individuals with
disabilities;
(2) Describe in detail the methods that will be used to make the facilities
accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition plan
is longer than one (1) year, identify steps that will be taken during each
year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
§ 1.1851 Building accessibility: New construction and alterations.
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Each building or part of a building that is constructed or altered by, on
behalf of, or for the use of the Commission shall be designed, constructed,
or altered so as to be readily accessible to and usable by individuals with
disabilities. The definitions, requirements and standards of the
Architectural Barriers Act, 42 U.S.C. 4151–4157, as established in 41 CFR
101–19.600 to 101–19.607, apply to buildings covered by this section.
§ 1.1870 Compliance procedures.
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(a) Except as provided in paragraph (b) of this section, this section
applies to all allegations of discrimination on the basis of disability in
programs or activities conducted by the Commission.
(b) The Commission shall process complaints alleging violations of section
504 with respect to employment according to the procedures established by
the Equal Employment Opportunity Commission in 29 CFR part 1614 pursuant to
section 501 of the Rehabilitation Act of 1973, 29 U.S.C. 791.
(c) Complaints alleging violation of section 504 with respect to the
Commission's programs and activities shall be addressed to the Managing
Director and filed with the Office of the Secretary, Federal Communications
Commission, 445 12th Street, SW., Room TWB–204, Washington, DC 20554.
(d) Acceptance of complaint. (1) The Commission shall accept and investigate
all complete complaints, as defined in §1.1803 of this part, for which it
has jurisdiction. All such complaints must be filed within one-hundred
eighty (180) days of the alleged act of discrimination. The Commission may
extend this time period for good cause.
(2) If the Commission receives a complaint that is not complete as defined
in §1.1803 of this part, the complainant will be notified within thirty (30)
days of receipt of the incomplete complaint that additional information is
needed. If the complainant fails to complete the complaint within thirty
(30) days of receipt of this notice, the Commission shall dismiss the
complaint without prejudice.
(e) If the Commission receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
(f) The Commission shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act of
1968, as amended, 42 U.S.C. 4151–4157, is not readily accessible to and
usable by individuals with disabilities.
(g) Within one-hundred eighty (180) days of the receipt of a complete
complaint, as defined in §1.1803, for which it has jurisdiction, the
Commission shall notify the complainant of the results of the investigation
in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or remedies must
be filed by the complainant within ninety (90) days of receipt from the
Commission of the letter required by §1.1870(g). The Commission may extend
this time for good cause.
(i) Timely appeals shall be accepted and processed by the Office of the
Secretary, Federal Communications Commission, 445 12th Street, SW., Room
TWB–204, Washington, DC 20554.
(j) The Commission shall notify the complainant of the results of the appeal
within sixty (60) days of the receipt of the appeal request. If the
Commission determines that it needs additional information from the
complainant, and requests such information, the Commission shall have sixty
(60) days from the date it receives the additional information to make its
determination on the appeal.
(k) The time limits cited in (g) and (j) of this section may be extended
with the permission of the General Counsel.
(l) The Commission may delegate its authority for conducting complaint
investigations to other federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
Subpart O—Collection of Claims Owed the United States
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Authority: 31 U.S.C. 3701; 31 U.S.C. 3711 et seq. ; 5 U.S.C. 5514; sec.
8(1) of E.O. 11609 (3 CFR, 1971–1975 Comp., p.586); redesignated in sec.
2–1 of E.O. 12107; (3 CFR, 1978 Comp., p. 264); 31 CFR parts 901–904; 5 CFR
part 550.
Source: 69 FR 27848 , May 17, 2004, unless otherwise noted.
General Provisions
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§ 1.1901 Definitions and construction.
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For purposes of this subpart:
(a) The term administrative offset means withholding money payable by the
United States Government to, or held by the Government for, a person,
organization, or entity to satisfy a debt the person, organization, or
entity owes the Government.
(b) The term agency or Commission means the Federal Communications
Commission (including the Universal Service Fund, the Telecommunications
Relay Service Fund, and any other reporting components of the Commission) or
any other agency of the U.S. Government as defined by section 105 of title 5
U.S.C., the U.S. Postal Service, the U.S. Postal Rate Commission, a military
department as defined by section 102 of title 5 U.S.C., an agency or court
of the judicial branch, or an agency of the legislative branch, including
the U.S. Senate and the U.S. House of Representatives.
(c) The term agency head means the Chairman of the Federal Communications
Commission.
(d) The term application includes in addition to petitions and applications
elsewhere defined in the Commission's rules, any request, as for assistance,
relief, declaratory ruling, or decision, by the Commission or on delegated
authority.
(e) The terms claim and debt are deemed synonymous and interchangeable. They
refer to an amount of money, funds, or property that has been determined by
an agency official to be due to the United States from any person,
organization, or entity, except another Federal agency. For purposes of
administrative offset under 31 U.S.C. 3716, the terms “claim” and “debt”
include an amount of money, funds, or property owed by a person to a State,
the District of Columbia, American Samoa, Guam, the United States Virgin
Islands, the Commonwealth of the Northern Mariana Islands, or the
Commonwealth of Puerto Rico. “Claim” and “debt” include amounts owed to the
United States on account of extension of credit or loans made by, insured or
guaranteed by the United States and all other amounts due the United States
from fees, leases, rents, royalties, services, sales of real or personal
property, overpayments, penalties, damages, interest, taxes, and forfeitures
issued after a notice of apparent liability that have been partially paid or
for which a court of competent jurisdiction has order payment and such order
is final (except those arising under the Uniform Code of Military Justice),
and other similar sources.
(f) The term creditor agency means the agency to which the debt is owed.
(g) The term debt collection center means an agency of a unit or subagency
within an agency that has been designated by the Secretary of the Treasury
to collect debt owed to the United States. The Financial Management Service
(FMS), Fiscal Service, United States Treasury, is a debt collection center.
(h) The term demand letter includes written letters, orders, judgments, and
memoranda from the Commission or on delegated authority.
(i) The term “ delinquent ” means a claim or debt which has not been paid by
the date specified by the agency unless other satisfactory payment
arrangements have been made by that date, or, at any time thereafter, the
debtor has failed to satisfy an obligation under a payment agreement or
instrument with the agency, or pursuant to a Commission rule. For purposes
of this subpart only, an installment payment under 47 CFR 1.2110(g) will not
be considered deliquent until the expiration of all applicable grace periods
and any other applicable periods under Commission rules to make the payment
due. The rules set forth in this subpart in no way affect the Commission's
rules, as may be amended, regarding payment for licenses (including
installment, down, or final payments) or automatic cancellation of
Commission licenses (see 47 CFR 1.1902(f)).
(j) The term disposable pay means that part of current basic pay, special
pay, incentive pay, retired pay, retainer pay, or in the case of an employee
not entitled to basic pay, other authorized pay remaining after the
deduction of any amount required by law to be withheld. Agencies must
exclude deductions described in 5 CFR 581.105(b) through (f) to determine
disposable pay subject to salary offset.
(k) The term employee means a current employee of the Commission or of
another agency, including a current member of the Armed Forces or a Reserve
of the Armed Forces (Reserve).
(l) The term entity includes natural persons, legal associations,
applicants, licensees, and regulatees.
(m) The term FCCS means the Federal Claims Collection Standards jointly
issued by the Secretary of the Treasury and the Attorney General of the
United States at 31 CFR parts 900–904.
(n) The term paying agency means the agency employing the individual and
authorizing the payment of his or her current pay.
(o) The term referral for litigation means referral to the Department of
Justice for appropriate legal proceedings except where the Commission has
the statutory authority to handle the litigation itself.
(p) The term reporting component means any program, account, or entity
required to be included in the Agency's Financial Statements by generally
accepted accounting principles for Federal Agencies.
(q) The term salary offset means an administrative offset to collect a debt
under 5 U.S.C. 5514 by deduction(s) at one or more officially established
pay intervals from the current pay account of an employee without his or her
consent.
(r) The term waiver means the cancellation, remission, forgiveness, or
non-recovery of a debt or fee, including, but not limited to, a debt due to
the United States, by an entity or an employee to an agency and as the
waiver is permitted or required by 5 U.S.C. 5584, 10 U.S.C. 2774, 31 U.S.C.
3711, or any other law.
(s) Words in the plural form shall include the singular, and vice-versa, and
words signifying the masculine gender shall include the feminine, and
vice-versa. The terms includes and including do not exclude matters not
listed but do include matters of the same general class.
§ 1.1902 Exceptions.
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(a) Claims arising from the audit of transportation accounts pursuant to 31
U.S.C. 3726 shall be determined, collected, compromised, terminated or
settled in accordance with regulations published under the authority of 31
U.S.C. 3726 (see 41 CFR part 101–41).
(b) Claims arising out of acquisition contracts subject to the Federal
Acquisition Regulations (FAR) shall be determined, collected, compromised,
terminated, or settled in accordance with those regulations. (See 48 CFR
part 32). If not otherwise provided for in the FAR, contract claims that
have been the subject of a contracting officer's final decision in
accordance with section 6(a) of the Contract Disputes Act of 1978 (41 U.S.C.
605(a)), may be determined, collected, compromised, terminated or settled
under the provisions of this regulation, except that no additional review of
the debt shall be granted beyond that provided by the contracting officer in
accordance with the provisions of section 6 of the Contract Disputes Act of
1978 (41 U.S.C. 605), and the amount of any interest, administrative charge,
or penalty charge shall be subject to the limitations, if any, contained in
the contract out of which the claim arose.
(c) Claims based in whole or in part on conduct in violation of the
antitrust laws, or in regard to which there is an indication of fraud, the
presentation of a false claim, or a misrepresentation on the part of the
debtor or any other party having an interest in the claim, shall be referred
to the Department of Justice (DOJ) as only the DOJ has authority to
compromise, suspend, or terminate collection action on such claims. The
standards in the FCCS relating to the administrative collection of claims do
apply, but only to the extent authorized by the DOJ in a particular case.
Upon identification of a claim based in whole or in part on conduct in
violation of the antitrust laws or any claim involving fraud, the
presentation of a false claim, or misrepresentation on the part of the
debtor or any party having an interest in the claim, the Commission shall
promptly refer the case to the Department of Justice for action. At its
discretion, the DOJ may return the claim to the forwarding agency for
further handling in accordance with the standards in the FCCS.
(d) Tax claims are excluded from the coverage of this regulation.
(e) The Commission will attempt to resolve interagency claims by negotiation
in accordance with Executive Order 12146 (3 CFR 1980 Comp., pp. 409–412).
(f) Nothing in this subpart shall supercede or invalidate other Commission
rules, such as the part 1 general competitive bidding rules (47 CFR part 1,
subpart Q) or the service specific competitive bidding rules, as may be
amended, regarding the Commission's rights, including but not limited to the
Commission's right to cancel a license or authorization, obtain judgment, or
collect interest, penalties, and administrative costs.
§ 1.1903 Use of procedures.
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Procedures authorized by this regulation (including, but not limited to,
disclosure to a consumer reporting agency, contracting for collection
services, administrative offset and salary offset) may be used singly or in
combination, so long as the requirements of applicable law and regulation
are satisfied.
§ 1.1904 Conformance to law and regulations.
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The requirements of applicable law (31 U.S.C. 3701–3719, as amended by
Public Law 97–365, 96 Stat. 1749 and Public Law 104–134, 110 Stat. 1321,
1358) have been implemented in government-wide standards which include the
Regulations of the Office of Personnel Management (5 CFR part 550) and the
Federal Claims Collection Standards issued jointly by the Secretary of the
Treasury and the Attorney General of the United States (31 CFR parts
900–904). Not every item in the previous sentence described standards has
been incorporated or referenced in this regulation. To the extent, however,
that circumstances arise which are not covered by the terms stated in these
regulations, the Commission will proceed in any actions taken in accordance
with applicable requirements found in the standards referred to in this
section.
§ 1.1905 Other procedures; collection of forfeiture penalties.
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Nothing contained in these regulations is intended to require the Commission
to duplicate administrative or other proceedings required by contract or
other laws or regulations, nor do these regulations supercede procedures
permitted or required by other statutes or regulations. In particular, the
assessment and collection of monetary forfeitures imposed by the Commission
will be governed initially by the procedures prescribed by 47 U.S.C. 503,
504 and 47 CFR 1.80. After compliance with those procedures, the Commission
may determine that the collection of a monetary forfeiture under the
collection alternatives prescribed by this subpart is appropriate but need
not duplicate administrative or other proceedings. Fees and penalties
prescribed by law, e.g. , 47 U.S.C. 158 and 159, and promulgated under the
authority of 47 U.S.C. 309(j) ( e.g. , 47 CFR part 1, subpart Q) may be
collected as permitted by applicable law. Nothing contained herein is
intended to restrict the Commission from exercising any other right to
recover or collect amounts owed to it.
§ 1.1906 Informal action.
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Nothing contained in these regulations is intended to preclude utilization
of informal administrative actions or remedies which may be available
(including, e.g. , Alternative Dispute Resolution), and/or for the
Commission to exercise rights as agreed to among the parties in written
agreements, including notes and security agreements.
§ 1.1907 Return of property or collateral.
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Nothing contained in this regulation is intended to deter the Commission
from exercising any other right under law or regulation or by agreement it
may have or possess, or to exercise its authority and right as a regulator
under the Communications Act of 1934, as amended, and the Commission's
rules, and demanding the return of specific property or from demanding, as a
non-exclusive alternative, either the return of property or the payment of
its value or the amount due the United States under any agreement or
Commission rule.
§ 1.1908 Omissions not a defense.
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The failure or omission of the Commission to comply with any provision in
this regulation shall not serve as a defense to any debtor.
§ 1.1909 [Reserved]
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§ 1.1910 Effect of insufficient fee payments, delinquent debts, or debarment.
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(a)(1) An application (including a petition for reconsideration or any
application for review of a fee determination) or request for authorization
subject to the FCC Registration Number (FRN) requirement set forth in
subpart W of this chapter will be examined to determine if the applicant has
paid the appropriate application fee, appropriate regulatory fees, is
delinquent in its debts owed the Commission, or is debarred from receiving
Federal benefits ( see, e.g. , 31 CFR 285.13; 47 CFR part 1, subpart P).
(2) Fee payments, delinquent debt, and debarment will be examined based on
the entity's taxpayer identifying number (TIN), supplied when the entity
acquired or was assigned an FRN. See 47 CFR 1.8002(b)(1).
(b)(1) Applications by any entity found not to have paid the proper
application or regulatory fee will be handled pursuant to the rules set
forth in 47 CFR part 1, subpart G.
(2) Action will be withheld on applications, including on a petition for
reconsideration or any application for review of a fee determination, or
requests for authorization by any entity found to be delinquent in its debt
to the Commission (see §1.1901(j)), unless otherwise provided for in this
regulation, e.g., 47 CFR 1.1928 (employee petition for a hearing). The
entity will be informed that action will be withheld on the application
until full payment or arrangement to pay any non-tax delinquent debt owed to
the Commission is made and/or that the application may be dismissed. See the
provisisons of §§1.1108, 1.1109, 1.1116 and 1.1118. Any Commission action
taken prior to the payment of delinquent non-tax debt owed to the Commission
is contingent and subject to recission. Failure to make payment on any
delinquent debt is subject to collection of the debt, including interest
thereon, any associated penalties, and the full cost of collection to the
Federal government pursuant to the provisions of the Debt Collection
Improvement Act, 31 U.S.C. 3717.
(3) If a delinquency has not been paid or the debtor has not made other
satisfactory arrangements within 30 days of the date of the notice provided
pursuant to paragraph (b)(2) of this section, the application or request for
authorization will be dismissed.
(i) The provisions of paragraphs (b)(2) and (b)(3) of this section will not
apply if the applicant has timely filed a challenge through an
administrative appeal or a contested judicial proceeding either to the
existence or amount of the non-tax delinquent debt owed the Commission.
(ii) The provisions of paragraphs (b)(2) and (b)(3) of this section will not
apply where more restrictive rules govern treatment of delinquent debtors,
such as 47 CFR 1.2105(a)(2)(x) and (xi).
(c)(1) Applications for emergency or special temporary authority involving
safety of life or property (including national security emergencies) or
involving a brief transition period facilitating continuity of service to a
substantial number of customers or end users, will not be subject to the
provisions of paragraphs (a) and (b) of this section. However, paragraphs
(a) and (b) will be applied to permanent authorizations for these services.
(2) Provisions of paragraph (a) and (b) of this section will not apply to
application or requst for authorization to which 11 U.S.C. 525(a) is
applicable.
[ 69 FR 57230 , Sept. 24, 2004]
Administrative Offset—Consumer Reporting Agencies—Contracting for Collection
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§ 1.1911 Demand for payment.
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(a) Written demand as described in paragraph (b) of this section, and which
may be in the form of a letter, order, memorandum, or other form of written
communication, will be made promptly upon a debtor of the United States in
terms that inform the debtor of the consequences of failing to cooperate to
resolve the debt. The specific content, timing, and number of demand letters
depend upon the type and amount of the debt, including, e.g. , any notes and
the terms of agreements of the parties, and the debtor's response, if any,
to the Commission's letters or telephone calls. One demand letter will be
deemed sufficient. In determining the timing of the demand letter(s), the
Commission will give due regard to the need to refer debts promptly to the
Department of Justice for litigation, in accordance with the FCCS. When
necessary to protect the Government's interest (for example, to prevent the
expiration of a statute of limitations), written demand may be preceded by
other appropriate actions under the FCCS, including immediate referral for
litigation. The demand letter does not provide an additional period within
to challenge the existence of, or amount of the non-tax debt if such time
period has expired under Commission rules or other applicable limitation
periods. Nothing contained herein is intended to limit the Commission's
authority or discretion as may otherwise be permitted to collect debts owed.
(b) The demand letter will inform the debtor of:
(1) The basis for the indebtedness and the opportunities, if any, of the
debtor to request review within the Commission;
(2) The applicable standards for assessing any interest, penalties, and
administrative costs (§§1.1940 and 1.1941);
(3) The date by which payment is to be made to avoid late charges and
enforced collection, which normally will not be more than 30 days from the
date that the initial demand letter was mailed or hand-delivered; and
(4) The name, address, and phone number of a contact person or office within
the Commission.
(c) The Commission will expend all reasonable effort to ensure that demand
letters are mailed or hand-delivered on the same day that they are dated. As
provided for in any agreement among parties, or as may be required by
exigent circumstances, the Commission may use other forms of delivery,
including, e.g. , facsimile telecopier or electronic mail. There is no
prescribed format for demand letters. The Commission utilizes demand letters
and procedures that will lead to the earliest practicable determination of
whether the debt can be resolved administratively or must be referred for
litigation.
(d) The Commission may, as circumstances and the nature of the debt permit,
include in demand letters such items as the Commission's willingness to
discuss alternative methods of payment; its policies with respect to the use
of credit bureaus, debt collection centers, and collection agencies; the
Commission's remedies to enforce payment of the debt (including assessment
of interest, administrative costs and penalties, administrative garnishment,
the use of collection agencies, Federal salary offset, tax refund offset,
administrative offset, and litigation); the requirement that any debt
delinquent for more than 180 days be transferred to the Department of the
Treasury for collection; and, depending on applicable statutory authority,
the debtor's entitlement to consideration of a waiver. Where applicable, the
debtor will be provided with a period of time (normally not more than 15
calendar days) from the date of the demand in which to exercise the
opportunity to request a review.
(e) The Commission will respond promptly to communications from the debtor,
within 30 days whenever feasible, and will advise debtors who dispute the
debt that they must furnish available evidence to support their contentions.
(f) Prior to the initiation of the demand process or at any time during or
after completion of the demand process, if the Commission determines to
pursue, or is required to pursue, offset, the procedures applicable to
offset in §§1.1912 and 1.1913, as applicable, will be followed. The
availability of funds or money for debt satisfaction by offset and the
Commission's determination to pursue collection by offset shall release the
Commission from the necessity of further compliance with paragraphs (a),
(b), (c), and (d) of this section.
(g) Prior to referring a debt for litigation, the Commission will advise
each person determined to be liable for the debt that, unless the debt can
be collected administratively, litigation may be initiated. This
notification will follow the requirements of Executive Order 12988 (3 CFR,
1996 Comp., pp. 157–163) and may be given as part of a demand letter under
paragraph (b) of this section or in a separate document. Litigation counsel
for the Government will be advised that this notice has been given.
(h) When the Commission learns that a bankruptcy petition has been filed
with respect to a debtor, before proceeding with further collection action,
the Commission may immediately seek legal advice from its counsel concerning
the impact of the Bankruptcy Code on any pending or contemplated collection
activities. Unless the Commission determines that the automatic stay imposed
at the time of filing pursuant to 11 U.S.C. 362 has been lifted or is no
longer in effect, in most cases collection activity against the debtor
should stop immediately.
(1) After seeking legal advice, a proof of claim will be filed in most cases
with the bankruptcy court or the Trustee. The Commission will refer to the
provisions of 11 U.S.C. 106 relating to the consequences on sovereign
immunity of filing a proof of claim.
(2) If the Commission is a secured creditor, it may seek relief from the
automatic stay regarding its security, subject to the provisions and
requirements of 11 U.S.C. 362.
(3) Offset is stayed in most cases by the automatic stay. However, the
Commission will determine from its counsel whether its payments to the
debtor and payments of other agencies available for offset may be frozen by
the Commission until relief from the automatic stay can be obtained from the
bankruptcy court. The Commission will also determine from its counsel
whether recoupment is available.
§ 1.1912 Collection by administrative offset.
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(a) Scope. (1) The term administrative offset has the meaning provided in
§1.1901.
(2) This section does not apply to:
(i) Debts arising under the Social Security Act, except as provided in 42
U.S.C. 404;
(ii) Payments made under the Social Security Act, except as provided for in
31 U.S.C. 3716(c) (see 31 CFR 285.4, Federal Benefit Offset);
(iii) Debts arising under, or payments made under, the Internal Revenue Code
(see 31 CFR 285.2, Tax Refund Offset) or the tariff laws of the United
States;
(iv) Offsets against Federal salaries to the extent these standards are
inconsistent with regulations published to implement such offsets under 5
U.S.C. 5514 and 31 U.S.C. 3716 (see 5 CFR part 550, subpart K, and 31 CFR
285.7, Federal Salary Offset);
(v) Offsets under 31 U.S.C. 3728 against a judgment obtained by a debtor
against the United States;
(vi) Offsets or recoupments under common law, State law, or Federal statutes
specifically prohibiting offsets or recoupments of particular types of
debts; or
(vii) Offsets in the course of judicial proceedings, including bankruptcy.
(3) Unless otherwise provided for by contract or law, debts or payments that
are not subject to administrative offset under 31 U.S.C. 3716 may be
collected by administrative offset under the common law or other applicable
statutory authority.
(4) Unless otherwise provided by law, administrative offset of payments
under the authority of 31 U.S.C. 3716 to collect a debt may not be conducted
more than 10 years after the Government's right to collect the debt first
accrued, unless facts material to the Government's right to collect the debt
were not known and could not reasonably have been known by the official or
officials of the Government who were charged with the responsibility to
discover and collect such debts. This limitation does not apply to debts
reduced to a judgment.
(5) In bankruptcy cases, the Commission will seek legal advice from its
counsel concerning the impact of the Bankruptcy Code, particularly 11 U.S.C.
106, 362, and 553, on pending or contemplated collections by offset.
(b) Mandatory centralized administrative offset. (1) The Commission is
required to refer past due, legally enforceable nontax debts which are over
180 days delinquent to the Treasury for collection by centralized
administrative offset. Debts which are less than 180 days delinquent also
may be referred to the Treasury for this purpose. See FCCS for debt
certification requirements.
(2) The names and taxpayer identifying numbers (TINs) of debtors who owe
debts referred to the Treasury as described in paragraph (b)(1) of this
section shall be compared to the names and TINs on payments to be made by
Federal disbursing officials. Federal disbursing officials include
disbursing officials of Treasury, the Department of Defense, the United
States Postal Service, other Government corporations, and disbursing
officials of the United States designated by the Treasury. When the name and
TIN of a debtor match the name and TIN of a payee and all other requirements
for offset have been met, the payment will be offset to satisfy the debt.
(3) Federal disbursing officials will notify the debtor/payee in writing
that an offset has occurred to satisfy, in part or in full, a past due,
legally enforceable delinquent debt. The notice shall include a description
of the type and amount of the payment from which the offset was taken, the
amount of offset that was taken, the identity of the creditor agency
requesting the offset, and a contact point within the creditor agency who
will respond to questions regarding the offset.
(4)(i) Before referring a delinquent debt to the Treasury for administrative
offset, and subject to any agreement and/or waiver to the contrary by the
debtor, the Commission shall ensure that offsets are initiated only after
the debtor:
(A) Has been sent written notice of the type and amount of the debt, the
intention of the Commission to use administrative offset to collect the
debt, and an explanation of the debtor's rights under 31 U.S.C. 3716; and
(B) The debtor has been given:
( 1 ) The opportunity to request within 15 days of the date of the written
notice, after which opportunity is deemed waived, by the debtor, to inspect
and copy Commission records related to the debt;
( 2 ) The opportunity, unless otherwise waived by the debtor, for a review
within the Commission of the determination of indebtedness; and
( 3 ) The opportunity to request within 15 days of the date of the written
notice, after which the opportunity is deemed waived by the debtor, for the
debtor to make a written agreement to repay the debt.
(ii) The Commission may omit the procedures set forth in paragraph (a)(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.
(iii) When the Commission previously has given a debtor any of the required
notice and review opportunities with respect to a particular debt ( see 31
CFR 901.2), the Commission need not duplicate such notice and review
opportunities before administrative offset may be initiated.
(5) Before the Commission refers delinquent debts to the Treasury, the
Office of Managing Director must certify, in a form acceptable to the
Treasury, that:
(i) The debt(s) is (are) past due and legally enforceable; and
(ii) The Commission has complied with all due process requirements under 31
U.S.C. 3716(a) and its regulations.
(6) Payments that are prohibited by law from being offset are exempt from
centralized administrative offset. The Treasury shall exempt payments under
means-tested programs from centralized administrative offset when requested
in writing by the head of the payment certifying or authorizing agency.
Also, the Treasury may exempt other classes of payments from centralized
offset upon the written request of the head of the payment certifying or
authorizing agency.
(7) Benefit payments made under the Social Security Act (42 U.S.C. 301 et
seq. ), part B of the Black Lung Benefits Act (30 U.S.C. 921 et seq. ), and
any law administered by the Railroad Retirement Board (other than tier 2
benefits), may be offset only in accordance with Treasury regulations,
issued in consultation with the Social Security Administration, the Railroad
Retirement Board, and the Office of Management and Budget. See 31 CFR 285.4.
(8) In accordance with 31 U.S.C. 3716(f), the Treasury may waive the
provisions of the Computer Matching and Privacy Protection Act of 1988
concerning matching agreements and post-match notification and verification
(5 U.S.C. 552a(o) and (p)) for centralized administrative offset upon
receipt of a certification from a creditor agency that the due process
requirements enumerated in 31 U.S.C. 3716(a) have been met. The
certification of a debt in accordance with paragraph (b)(5) of this section
will satisfy this requirement. If such a waiver is granted, only the Data
Integrity Board of the Department of the Treasury is required to oversee any
matching activities, in accordance with 31 U.S.C. 3716(g). This waiver
authority does not apply to offsets conducted under paragraphs (c) and (d)
of this section.
(c) Non-centralized administrative offset. (1) Generally, non-centralized
administrative offsets are ad hoc case-by-case offsets that the Commission
conducts, at the Commission's discretion, internally or in cooperation with
the agency certifying or authorizing payments to the debtor. Unless
otherwise prohibited by law, when centralized administrative offset is not
available or appropriate, past due, legally enforceable nontax delinquent
debts may be collected through non-centralized administrative offset. In
these cases, a creditor agency may make a request directly to a
payment-authorizing agency to offset a payment due a debtor to collect a
delinquent debt. For example, it may be appropriate for a creditor agency to
request that the Office of Personnel Management (OPM) offset a Federal
employee's lump-sum payment upon leaving Government service to satisfy an
unpaid advance.
(2) The Commission will make reasonable effort to ensure that such offsets
may occur only after:
(i) The debtor has been provided due process as set forth in paragraph
(b)(4) of this section (subject to any waiver by the debtor); and
(ii) The payment authorizing agency has received written certification from
the Commission that the debtor owes the past due, legally enforceable
delinquent debt in the amount stated, and that the creditor agency has fully
complied with its regulations concerning administrative offset.
(3) Payment authorizing agencies shall comply with offset requests by
creditor agencies to collect debts owed to the United States, unless the
offset would not be in the best interests of the United States with respect
to the program of the payment authorizing agency, or would otherwise be
contrary to law. Appropriate use should be made of the cooperative efforts
of other agencies in effecting collection by administrative offset.
(4) When collecting multiple debts by non-centralized administrative offset,
agencies should apply the recovered amounts to those debts in accordance
with the best interests of the United States, as determined by the facts and
circumstances of the particular case, particularly the applicable statute of
limitations.
§ 1.1913 Administrative offset against amounts payable from Civil Service
Retirement and Disability Fund.
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Upon providing the Office of Personnel Management (OPM) with written
certification that a debtor has been afforded the procedures provided in
§1.1912(b)(4), the Commission may request OPM to offset a debtor's
anticipated or future benefit payments under the Civil Service Retirement
and Disability Fund (Fund) in accordance with regulations codified at 5 CFR
831.1801–831.1808. Upon receipt of such a request, OPM will identify and
“flag” a debtor's account in anticipation of the time when the debtor
requests, or becomes eligible to receive, payments from the Fund. This will
satisfy any requirement that offset be initiated prior to the expiration of
the time limitations referenced in §1.1914(a)(4).
§ 1.1914 Collection in installments.
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(a) Subject to the Commission's rules pertaining to the installment loan
program ( see e.g. , 47 CFR §1.2110(g)), subpart Q or other agreements among
the parties, the terms of which will control, whenever feasible, the
Commission shall collect the total amount of a debt in one lump sum. If a
debtor is financially unable to pay a debt in one lump sum, the Commission,
in its sole discretion, may accept payment in regular installments. The
Commission will obtain financial statements from debtors who represent that
they are unable to pay in one lump sum and which are able to verify
independently such representations ( see 31 CFR 902.2(g)). The Commission
will require and obtain a legally enforceable written agreement from the
debtor that specifies all of the terms of the arrangement, including, as
appropriate, sureties and other indicia of creditworthiness ( see Federal
Credit Reform Act of 1990, 2 U.S.C. 661, et seq. , OMB Circular A–129), and
that contains a provision accelerating the debt in the event of default.
(b) The size and frequency of installment payments should bear a reasonable
relation to the size of the debt and the debtor's ability to pay. If
possible, the installment payments will be sufficient in size and frequency
to liquidate the debt in three years or less.
(c) Security for deferred payments will be obtained in appropriate cases.
The Commission may accept installment payments notwithstanding the refusal
of the debtor to execute a written agreement or to give security, at the
Commission's option.
(d) The Commission may deny the extension of credit to any debtor who fails
to provide the records requested or fails to show an ability to pay the
debt.
§ 1.1915 Exploration of compromise.
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The Commission may attempt to effect compromise, preferably during the
course of personal interviews, in accordance with the standards set forth in
part 902 of the Federal Claims Collection Standards (31 CFR part 902). The
Commission will also consider a request submitted by the debtor to
compromise the debt. Such requests should be submitted in writing with full
justification of the offer and addressing the bases for compromise at 31 CFR
902.2. Debtors will provide full financial information to support any
request for compromise based on the debtor's inability to pay the debt.
Unless otherwise provided by law, when the principal balance of a debt,
exclusive of interest, penalties, and administrative costs, exceeds $100,000
or any higher amount authorized by the Attorney General, the authority to
accept the compromise rests with the Department of Justice. The Commission
will evaluate an offer, using the factors set forth in 31 CFR 902.2 and, as
appropriate, refer the offer with the appropriate financial information to
the Department of Justice. Department of Justice approval is not required if
the Commission rejects a compromise offer.
§ 1.1916 Suspending or terminating collection action.
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The suspension or termination of collection action shall be made in
accordance with the standards set forth in part 903 of the Federal Claims
Collection Standards (31 CFR part 903).
§ 1.1917 Referrals to the Department of Justice and transfer of delinquent
debt to the Secretary of Treasury.
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(a) Referrals to the Department of Justice shall be made in accordance with
the standards set forth in part 904 of the Federal Claims Collection
Standards (31 CFR part 904).
(b) The DCIA includes separate provisions governing the requirements that
the Commission transfer delinquent debts to Treasury for general collection
purposes (cross-servicing) in accordance with 31 U.S.C. 3711(g)(1) and (2),
and notify Treasury of delinquent debts for the purpose of administrative
offset in accordance with 31 U.S.C. 3716(c)(6). Title 31, U.S.C. 3711(g)(1)
requires the Commission to transfer to Treasury all collection activity for
a given debt. Under section 3711(g), Treasury will use all appropriate debt
collection tools to collect the debt, including referral to a designated
debt collection center or private collection agency, and administrative
offset. Once a debt has been transferred to Treasury pursuant to the
procedures at 31 CFR 285.12, the Commission will cease all collection
activity related to that debt.
(c) All non-tax debts of claims owed to the Commission that have been
delinquent for a period of 180 days shall be transferred to the Secretary of
the Treasury. Debts which are less than 180 days delinquent may also be
referred to the Treasury. Upon such transfer the Secretary of the Treasury
shall take appropriate action to collect or terminate collection actions on
the debt or claim. A debt is past-due if it has not been paid by the date
specified in the Commission's initial written demand for payment or
applicable agreement or instrument (including a post-delinquency payment
agreement) unless other satisfactory payment arrangements have been made.
§ 1.1918 Use of consumer reporting agencies.
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(a) The term individual means a natural person, and the term consumer
reporting agency has the meaning provided in the Federal Claims Collection
Act, as amended, 31 U.S.C. 3701(a)(3) or the Fair Credit Reporting Act, 15
U.S.C. 168a(f).
(b) The Commission may disclose to a consumer reporting agency, or provide
information to the Treasury who may disclose to a consumer reporting agency
from a system of records, information that an individual is responsible for
a claim. System information includes, for example, name, taxpayer
identification number, business and home address, business and home
telephone numbers, the amount of the debt, the amount of unpaid principle,
the late period, and the payment history. Before the Commission reports the
information, it will:
(1) Provide notice required by section 5 U.S.C. 552a(e)(4) that information
in the system may be disclosed to a consumer reporting agency;
(2) Review the claim to determine that it is valid and overdue;
(3) Make reasonable efforts using information provided by the debtor in
Commission files to notify the debtor, unless otherwise specified under the
terms of a contract or agreement—
(i) That payment of the claim is overdue;
(ii) That, within not less than 60 days from the date of the notice, the
Commission intends to disclose to a consumer reporting agency that the
individual is responsible for that claim;
(iii) That information in the system of records may be disclosed to the
consumer reporting agency; and
(iv) That unless otherwise specified and agreed to in an agreement,
contract, or by the terms of a note and/or security agreement, or that the
debt arises from the nonpayment of a Commission fee, penalty, or other
statutory or regulatory obligations, the individual will be provided with an
explanation of the claim, and, as appropriate, procedures to dispute
information in the records of the agency about the claim, and to
administrative appeal or review of the claim; and
(4) Review Commission records to determine that the individual has not—
(i) Repaid or agreed to repay the claim under a written repayment plan
agreed to and signed by both the individual and the Commission's
representative; or, if eligible; and
(ii) Filed for review of the claim under paragraph (g) of this section;
(c) The Commission shall: (1) Disclose to each consumer reporting agency to
which the original disclosure was made a substantial change in the condition
or amount of the claim;
(2) Verify or correct promptly information about the claim, on request of a
consumer reporting agency for verification of any or all information so
disclosed; and
(3) Obtain assurances from each consumer reporting agency that they are
complying with all laws of the United States relating to providing consumer
credit information.
(d) The Commission shall ensure that information disclosed to the consumer
reporting agency is limited to—
(1) Information necessary to establish the identity of the individual,
including name, address, and taxpayer identification number;
(2) The amount, status, and history of the claim; and
(3) The agency or program under which the claim arose.
(e) All accounts in excess of $100 that have been delinquent more than 31
days will normally be referred to a consumer reporting agency.
(f) Under the same provisions as described in paragraph (b) of this section,
the Commission may disclose to a credit reporting agency, information
relating to a debtor other than a natural person. Such commercial debt
accounts are not covered by the Privacy Act. Moreover, commercial debt
accounts are subject to the Commission's rules concerning debt obligation,
including part 1 rules related to auction debt, and the agreements of the
parties.
§ 1.1919 Contracting for collection services.
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(a) Subject to the provisions of paragraph (b) of this section, the
Commission may contract with private collection contractors, as defined in
31 U.S.C. 3701(f), to recover delinquent debts. In that regard, the
Commission:
(1) Retains the authority to resolve disputes, compromise debts, suspend or
terminate collection activity, and refer debts for litigation;
(2) Restricts the private collection contractor from offering, as an
incentive for payment, the opportunity to pay the debt less the private
collection contractor's fee unless the Commission has granted such authority
prior to the offer;
(3) Specifically requires, as a term of its contract with the private
collection contractor, that the private collection contractor is subject to
the Privacy Act of 1974 to the extent specified in 5 U.S.C. 552a(m), and to
applicable Federal and state laws and regulations pertaining to debt
collection practices, including but not limited to the Fair Debt Collection
Practices Act, 15 U.S.C. 1692; and
(4) The private collection contractor is required to account for all amounts
collected.
(b) Although the Commission will use government-wide debt collection
contracts to obtain debt collection services provided by private collection
contractors, the Commission may refer debts to private collection
contractors pursuant to a contract between the Commission and the private
collection contractor in those situations where the Commission is not
required to transfer debt to the Secretary of the Treasury for debt
collection.
(c) Agencies may fund private collection contractor in accordance with 31
U.S.C. 3718(d), or as otherwise permitted by law.
(d) The Commission may enter into contracts for locating and recovering
assets of the United States, such as unclaimed assets, but it will first
establish procedures that are acceptable to Treasury before entering into
contracts to recover assets of the United States held by a state government
or a financial institution.
(e) The Commission may enter into contracts for debtor asset and income
search reports. In accordance with 31 U.S.C. 3718(d), such contracts may
provide that the fee a contractor charges the Commission for such services
may be payable from the amounts recovered, unless otherwise prohibited by
statute. In that regard, fees for those services will be added to the amount
collected and are part of the administrative collection costs passed on to
the debtor. See §1.1940.
§§ 1.1920-1.1924 [Reserved]
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Salary Offset-Individual Debt
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§ 1.1925 Purpose.
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Sections 1.1925 through 1.1939 apply to individuals who are employees of the
Commission and provides the standards to be followed by the Commission in
implementing 5 U.S.C. 5514; sec. 8(1) of E.O. 11609 (3 CFR, 1971–1975 Comp.,
p.586); redesignated in sec. 2–1 of E.O. 12107 (3 CFR, 1978 Comp., p.264) to
recover a debt from the pay account of a Commission employee. It also
establishes procedural guidelines to recover debts when the employee's
creditor and paying agencies are not the same.
§ 1.1926 Scope.
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(a) Coverage. This section applies to the Commission and employees as
defined by §1.1901.
(b) Applicability. This section and 5 U.S.C. 5514 apply in recovering
certain debts by offset, except where the employee consents to the recovery,
from the current pay account of that employee. Because it is an
administrative offset, debt collection procedures for salary offset which
are not specified in 5 U.S.C. 5514 and these regulations should be
consistent with the provisions of the Federal Claims Collection Standards
(31 CFR parts 900–904).
(1) Excluded debts or claims. The procedures contained in this section do
not apply to debts or claims arising under the Internal Revenue Code of
1954, as amended (26 U.S.C. 1 et seq. ), the Social Security Act (42 U.S.C.
301 et seq. ) or the tariff laws of the United States, or to any case where
collection of a debt by salary offset is explicitly provided for or
prohibited by another statute ( e.g. travel advances in 5 U.S.C. 5705 and
employee training expenses in 5 U.S.C. 4108).
(2) Section 1.1926 does not preclude an employee from requesting waiver of
an erroneous payment under 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C. 716,
or in any way questioning the amount or validity of a debt, in the manner
prescribed by the Commissioner. Similarly, this subpart does not preclude an
employee from requesting waiver of the collection of a debt under any other
applicable statutory authority.
(c) Time limit. Under 31 CFR 901.3(a)(4) offset may not be initiated more
than 10 years after the Government's right to collect the debt first
accrued, unless an exception applies as stated in section 901.3(a)(4).
§ 1.1927 Notification.
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(a) Salary offset deductions will not be made unless the Managing Director
of the Commission, or the Managing Director's designee, provides to the
employee at least 30 days before any deduction, written notice stating at a
minimum:
(1) The Commission's determination that a debt is owed, including the
origin, nature, and amount of the debt;
(2) The Commission's intention to collect the debt by means of deduction
from the employee's current disposable pay account;
(3) The frequency and amount of the intended deduction (stated as a fixed
dollar amount or as a percentage of pay, not to exceed 15 percent of
disposable pay) and the intention to continue the deductions until the debt
is paid in full or otherwise resolved;
(4) An explanation of the Commission's policy concerning interest,
penalties, and administrative costs ( See §§1.1940 and 1.1941), a statement
that such assessments must be made unless excused in accordance with the
FCCS;
(5) The employee's right to inspect and copy Government records relating to
the debt or, if the employee or his or her representative cannot personally
inspect the records, to request and receive a copy of such records.
(6) If not previously provided, the opportunity (under terms agreeable to
the Commission) to establish a schedule for the voluntary repayment of the
debt or to enter into a written agreement to establish a schedule for
repayment of the debt in lieu of offset. The agreement must be in writing,
signed by both the employee and the Managing Director (or designee) of the
Commission and documented in Commission files (see the FCCS).
(7) The employee's right to a hearing conducted by an official arranged by
the Commission (an administrative law judge, or alternatively, a hearing
official not under the control of the head of the Commission) if a petition
is filed as prescribed by this subpart.
(8) The method and time period for petitioning for a hearing;
(9) That the timely filing of a petition for hearing will stay the
commencement of collection proceedings;
(10) That the final decision in the hearing (if one is requested) will be
issued at the earliest practical date, but not later than 60 days after the
filing of the petition requesting the hearing unless the employee requests
and the hearing official grants a delay in the proceedings;
(11) That any knowingly false, misleading, or frivolous statements,
representations, or evidence may subject the employee to:
(i) Disciplinary procedures appropriate under Chapter 75 of title 5, U.S.C.,
part 752 of title 5, Code of Federal Regulations, or any other applicable
statutes or regulations.
(ii) Penalties under the False Claims Act sections 3729–3731 of title 31,
U.S.C., or any other applicable statutory authority; or
(iii) Criminal penalties under sections 286, 287, 1001, and 1002 of title
18, U.S.C., or any other applicable statutory authority.
(12) Any other rights and remedies available to the employee under statutes
or regulations governing the program for which the collection is being made;
and
(13) Unless there are applicable contractual or statutory provisions to the
contrary, that amounts paid on or deducted for the debt which are later
waived or found not owed to the United States will be promptly refunded to
the employee.
(b) Notifications under this section shall be hand delivered with a record
made of the date of delivery, or shall be mailed by certified mail, return
receipt requested.
(c) No notification, hearing, written responses or final decisions under
this regulation are required by the Commission for:
(1) Any adjustment to pay arising out of an employee's election of coverage,
or change in coverage, under a Federal benefit program requiring periodic
deductions from pay, if the amount to be recovered was accumulated over four
pay periods or less;
(2) A routine intra-Commission adjustment of pay that is made to correct an
overpayment of pay attributable to clerical or administrative errors or
delays in processing pay documents, if the overpayment occurred within the
four pay periods preceding the adjustment, or as soon thereafter as
practical, the individual is provided written notice of the nature and the
amount of the adjustment and point of contact for contesting such
adjustment; or
(3) Any adjustment to collect a debt amounting to $50 or less, if, at the
time of such adjustment, or as soon thereafter as practical, the individual
is provided written notice of the nature and the amount of the adjustment
and a point of contact for contesting such adjustment.
§ 1.1928 Hearing.
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(a) Petition for hearing. (1) An employee may request a hearing by filing a
written petition with the Managing Director of the Commission, or designated
official stating why the employee believes the determination of the
Commission concerning the existence or the amount of the debt is in error.
(2) The employee's petition must be executed under penalty of perjury by the
employee and fully identify and explain with reasonable specificity all the
facts, evidence and witnesses, if any, which the employee believes support
his or her position.
(3) The petition must be filed no later than fifteen (15) calendar days from
the date that the notification was hand delivered or the date of delivery by
certified mail, return receipt requested.
(4) If a petition is received after the fifteenth (15) calendar day deadline
referred to paragraph (a) (3) of this section, the Commission will
nevertheless accept the petition if the employee can show, in writing, that
the delay was due to circumstances beyond his or her control, or because of
failure to receive notice of the time limit (unless otherwise aware of it).
(5) If a petition is not filed within the time limit specified in paragraph
(a) (3) of this section, and is not accepted pursuant to paragraph (a)(4) of
this section, the employee's right to hearing will be considered waived, and
salary offset will be implemented by the Commission.
(b) Type of hearing. (1) The form and content of the hearing will be
determined by the hearing official who shall be a person outside the control
or authority of the Commission except that nothing herein shall be construed
to prohibit the appointment of an administrative law judge by the
Commission. In determining the type of hearing, the hearing officer will
consider the nature and complexity of the transaction giving rise to the
debt. The hearing may be conducted as an informal conference or interview,
in which the Commission and employee will be given a full opportunity to
present their respective positions, or as a more formal proceeding involving
the presentation of evidence, arguments and written submissions.
(2) The employee may represent him or herself, or may be represented by an
attorney.
(3) The hearing official shall maintain a summary record of the hearing.
(4) The decision of the hearing officer shall be in writing, and shall
state:
(i) The facts purported to evidence the nature and origin of the alleged
debt;
(ii) The hearing official's analysis, findings, and conclusions, in the
light of the hearing, as to—
(A) The employee's and/or agency's grounds,
(B) The amount and validity of the alleged debt, and,
(C) The repayment schedule, if applicable.
(5) The decision of the hearing official shall constitute the final
administrative decision of the Commission.
§ 1.1929 Deduction from employee's pay.
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(a) Deduction by salary offset, from an employee's current disposable pay,
shall be subject to the following conditions:
(1) Ordinarily, debts to the United States will be collected in full, in one
lump sum. This will be done when funds are available for payment in one lump
sum. However, if the employee is financially unable to pay in one lump sum
or the amount of the debt exceeds 15 percent of disposable pay for an
officially established pay interval, collection must be made in
installments.
(2) The size of the installment deductions will bear a reasonable
relationship to the size of the debt and the employee's ability to pay ( see
the FCCS). However, the installments will not exceed 15 percent of the
disposable pay from which the deduction is made, unless the employee has
agreed in writing to the deduction of a greater amount.
(3) Deduction will generally commence with the next full pay interval
(ordinarily the next biweekly pay period) following the date: of the
employee's written consent to salary offset, the waiver of hearing, or the
decision issued by the hearing officer.
(4) Installment deductions will be pro-rated for a period not greater than
the anticipated period of employment except as provided in §1.1930.
§ 1.1930 Liquidation from final check or recovery from other payment.
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(a) If the employee retires or resigns or if his or her employment or period
of active duty ends before collection of the debt is completed, offset of
the entire remaining balance of the debt may be made from a final payment of
any nature, including, but not limited to a final salary payment or lump-sum
leave due the employee as the date of separation, to such extent as is
necessary to liquidate the debt.
(b) If the debt cannot be liquidated by offset from a final payment, offset
may be made from later payments of any kind due from the United States,
including, but not limited to, the Civil Service Retirement and Disability
Fund, pursuant to §1.1913.
§ 1.1931 Non-waiver of rights by payments.
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An employee's involuntary payment of all or any portion of a debt being
collected under 5 U.S.C. 5514 shall not be construed as a waiver of any
rights which the employee may have under 5 U.S.C. 5514 or any other
provision of contract or law, unless statutory or contractual provisions
provide to the contrary.
§ 1.1932 Refunds.
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(a) Refunds shall promptly be made when—(1) A debt is waived or otherwise
found not owing to the United States (unless expressly prohibited by statute
or regulation); or
(2) The employee's paying agency is directed by an administrative or
judicial order to refund amounts deducted from his or her current pay.
(b) Refunds do not bear interest unless required or permitted by law or
contract.
§ 1.1933 Interest, penalties and administrative costs.
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The assessment of interest, penalties and administrative costs shall be in
accordance with §§1.1940 and 1.1941.
§ 1.1934 Recovery when the Commission is not creditor agency.
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(a) Responsibilities of creditor agency. Upon completion of the procedures
established under 5 U.S.C. 5514, the creditor agency must do the following:
(1) Must certify, in writing, that the employee owes the debt, the amount
and basis of the debt, the date on which payment(s) is due, the date of the
Government's right to collect the debt first accrued, and that the creditor
agency's regulations implementing 5 U.S.C. 5514 have been approved by OPM.
(2) If the collection must be made in installments, the creditor agency also
must advise the Commission of the number of installments to be collected,
the amount of each installment, and the commencement date of the first
installment (if a date other than the next officially established pay period
is required).
(3) Unless the employee has consented to the salary offset in writing or
signed a statement acknowledging receipt of the required procedures, and the
written consent or statement is forwarded to the Commission, the creditor
agency also must advise the Commission of the action(s) taken under 5 U.S.C.
5514(b) and give the date(s) the action(s) was taken.
(4) Except as otherwise provided in this paragraph, the creditor agency must
submit a debt claim containing the information specified in paragraphs
(a)(1) through (a)(3) of this section and an installment agreement (or other
instruction on the payment schedule), if applicable to the Commission.
(5) If the employee is in the process of separating, the creditor agency
must submit its claim to the Commission for collection pursuant to §1.1930.
The Commission will certify the total amount of its collection and provide
copies to the creditor agency and the employee as stated in paragraph (c)(1)
of this section. If the Commission is aware that the employee is entitled to
payments from the Civil Service Retirement and Disability Fund, or other
similar payments, it must provide written notification to the agency
responsible for making such payments that the debtor owes a debt (including
the amount) and that there has been full compliance with the provisions of
this section. However, the creditor agency must submit a properly certified
claim to the agency responsible for making such payments before collection
can be made.
(6) If the employee is already separated and all payments from the
Commission have been paid, the creditor agency may request, unless otherwise
prohibited, that money due and payable to the employee from the Civil
Service Retirement and Disability Fund (5 CFR 831.1801 et seq. ), or other
similar funds, be administratively offset to collect the debt. (31 U.S.C.
3716 and 4 CFR 102.4)
(b) Responsibilities of the Commission —(1) Complete claim. When the
Commission receives a properly certified debt claim from a creditor agency,
deductions should be scheduled to begin prospectively at the next official
established pay interval. The Commission will notify the employee that the
Commission has received a certified debt claim from the creditor agency
(including the amount) and written notice of the date deductions from salary
will commence and of the amount of such deductions.
(2) Incomplete claim. When the Commission receives an incomplete debt claim
from a creditor agency, the Commission will return the debt claim with a
notice that procedures under 5 U.S.C. 5514 and this subpart must be
provided, and a properly certified debt claim received, before action will
be taken to collect from the employee's current pay account.
(3) Review. The Commission will not review the merits of the creditor
agency's determination with respect to the amount or validity of the debt
certified by the creditor agency.
(c) Employees who transfer from one paying agency to another. (1) If, after
the creditor agency has submitted the debt claim to the Commission, the
employee transfers to a position served by a different paying agency before
the debt is collected in full, the Commission must certify the total amount
of the collection made on the debt. One copy of the certification must be
furnished to the employee, another to the creditor agency along with notice
of employee's transfer. However, the creditor agency must submit a properly
certified claim to the new paying agency before collection can be resumed.
(2) When an employee transfers to another paying agency, the creditor agency
need not repeat the due process procedures described by 5 U.S.C. 5514 and
this subpart to resume the collection. However, the creditor agency is
responsible for reviewing the debt upon receiving the former paying agency's
notice of the employee's transfer to make sure the collection is resumed by
the new paying agency.
§ 1.1935 Obtaining the services of a hearing official.
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(a) When the debtor does not work for the creditor agency and the creditor
agency cannot provide a prompt and appropriate hearing before an
administrative law judge or before a hearing official furnished pursuant to
another lawful arrangement, the creditor agency may contact an agent of the
Commission designated in Appendix A of 5 CFR part 581 for a hearing
official, and the Commission will then cooperate as provided by the FCCS and
provide a hearing official.
(b) When the debtor works for the creditor agency, the creditor agency may
contact any agent (of another agency) designated in Appendix A of 5 CFR part
581 to arrange for a hearing official. Agencies must then cooperate as
required by the FCCS and provide a hearing official.
(c) The determination of a hearing official designated under this section is
considered to be an official certification regarding the existence and
amount of the debt for purposes of executing salary offset under 5 U.S.C.
5514. A creditor agency may make a certification to the Secretary of the
Treasury under 31 CFR 550.1108 or a paying agency under 31 CFR 550.1109
regarding the existence and amount of the debt based on the certification of
a hearing official. If a hearing official determines that a debt may not be
collected via salary offset, but the creditor agency finds that the debt is
still valid, the creditor agency may still seek collection of the debt
through other means, such as offset of other Federal payments, litigation,
etc.
§ 1.1936 Administrative wage garnishment.
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(a) Purpose. This section provides procedures for the Commission to collect
money from a debtor's disposable pay by means of administrative wage
garnishment to satisfy delinquent non-tax debt owed to the United States.
(b) Scope. (1) This section applies to Commission-administered programs that
give rise to a delinquent nontax debt owed to the United States and to the
Commission's pursuit of recovery of such debt.
(2) This section shall apply notwithstanding any provision of State law.
(3) Nothing in this section precludes the compromise of a debt or the
suspension or termination of collection action in accordance with applicable
law. See, for example, the Federal Claims Collection Standards (FCCS), 31
CFR parts 900 through 904.
(4) The receipt of payments pursuant to this section does not preclude the
Commission from pursuing other debt collection remedies, including the
offset of Federal payments to satisfy delinquent nontax debt owed to the
United States. The Commission may pursue such debt collection remedies
separately or in conjunction with administrative wage garnishment.
(5) This section does not apply to the collection of delinquent nontax debt
owed to the Commission from the wages of Federal employees from their
Federal employment. Federal pay is subject to the Federal salary offset
procedures set forth in 5 U.S.C. 5514, §§1.1925 through 1.1935, and other
applicable laws.
(6) Nothing in this section requires the Commission to duplicate notices or
administrative proceedings required by contract or other laws or
regulations.
(c) Definitions. In addition to the definitions set forth in §1.1901 as used
in this section, the following definitions shall apply:
(1) Business day means Monday through Friday. For purposes of computation,
the last day of the period will be included unless it is a Federal legal
holiday.
(2) Certificate of service means a certificate signed by a Commission
official indicating the nature of the document to which it pertains, the
date of mailing of the document, and to whom the document is being sent.
(3) Day means calendar day. For purposes of computation, the last day of the
period will be included unless it is a Saturday, a Sunday, or a Federal
legal holiday.
(4) Disposable pay means that part of the debtor's compensation (including,
but not limited to, salary, bonuses, commissions, and vacation pay) from an
employer remaining after the deduction of health insurance premiums and any
amounts required by law to be withheld.
(5) Amounts required by law to be withheld include amounts for deductions
such as social security taxes and withholding taxes, but do not include any
amount withheld pursuant to a court order.
(6) Employer means a person or entity that employs the services of others
and that pays their wages or salaries. The term employer includes, but is
not limited to, State and local Governments, but does not include an agency
of the Federal Government.
(7) Garnishment means the process of withholding amounts from an employee's
disposable pay and the paying of those amounts to a creditor in satisfaction
of a withholding order.
(8) Withholding order means any order for withholding or garnishment of pay
issued by an agency, or judicial or administrative body. For purposes of
this section, the terms “wage garnishment order” and “garnishment order”
have the same meaning as “withholding order.”
(d) General rule. Whenever the Commission determines that a delinquent debt
is owed by an individual, the Commission may initiate proceedings
administratively to garnish the wages of the delinquent debtor as governed
by procedures prescribed by 31 CFR 285. Wage garnishment will usually be
performed for the Commission by the Treasury as part of the debt collection
processes for Commission debts referred to Treasury for further collection
action.
(e) Notice requirements. (1) At least 30 days before the initiation of
garnishment proceedings, the Commission shall mail, by first class mail, to
the debtor's last known address a written notice informing the debtor of:
(i) The nature and amount of the debt;
(ii) The intention of the Commission to initiate proceedings to collect the
debt through deductions from pay until the debt and all accumulated
interest, penalties and administrative costs are paid in full; and
(iii) An explanation of the debtor's rights, including those set forth in
paragraph (e)(2) of this section, and the time frame within which the debtor
may exercise his or her rights.
(2) The debtor shall be afforded the opportunity:
(i) To inspect and copy agency records related to the debt;
(ii) To enter into a written repayment agreement with the Commission under
terms agreeable to the Commission; and
(iii) For a hearing in accordance with paragraph (f) of this section
concerning the existence or the amount of the debt or the terms of the
proposed repayment schedule under the garnishment order. However, the debtor
is not entitled to a hearing concerning the terms of the proposed repayment
schedule if these terms have been established by written agreement under
paragraph (e)(2)(ii) of this section.
(3) The Commission will keep a copy of a certificate of service indicating
the date of mailing of the notice. The certificate of service may be
retained electronically so long as the manner of retention is sufficient for
evidentiary purposes.
(f) Hearing. Pursuant to 31 CFR 285.11(f)(1), the Commission hereby adopts
by reference the hearing procedures of 31 CFR 285.11(f).
(g) Wage garnishment order. (1) Unless the Commission receives information
that the Commission believes justifies a delay or cancellation of the
withholding order, the Commission will send, by first class mail, a
withholding order to the debtor's employer within 30 days after the debtor
fails to make a timely request for a hearing ( i.e. , within 15 business
days after the mailing of the notice described in paragraph (e)(1) of this
section), or, if a timely request for a hearing is made by the debtor,
within 30 days after a final decision is made by the Commission to proceed
with garnishment, or as soon as reasonably possible thereafter.
(2) The withholding order sent to the employer under paragraph (g)(1) of
this section shall be in a form prescribed by the Secretary of the Treasury
on the Commission's letterhead and signed by the head of the Commission or
his/her delegate. The order shall contain only the information necessary for
the employer to comply with the withholding order, including the debtor's
name, address, and social security number, as well as instructions for
withholding and information as to where payments should be sent.
(3) The Commission will keep a copy of a certificate of service indicating
the date of mailing of the order. The certificate of service may be retained
electronically so long as the manner of retention is sufficient for
evidentiary purposes.
(h) Certification by employer. Along with the withholding order, the
Commission shall send to the employer a certification in a form prescribed
by the Secretary of the Treasury. The employer shall complete and return the
certification to the Commission within the time frame prescribed in the
instructions to the form addressing matters such as information about the
debtor's employment status and disposable pay available for withholding.
(i) Amounts withheld. (1) After receipt of the garnishment order issued
under this section, the employer shall deduct from all disposable pay paid
to the applicable debtor during each pay period the amount of garnishment
described in paragraph (i)(2) of this section.
(2) Subject to the provisions of paragraphs (i)(3) and (i)(4) of this
section, the amount of garnishment shall be the lesser of:
(i) The amount indicated on the garnishment order up to 15% of the debtor's
disposable pay; or
(ii) The amount set forth in 15 U.S.C. 1673(a)(2) (Restriction on
Garnishment). The amount set forth at 15 U.S.C. 1673(a)(2) is the amount by
which a debtor's disposable pay exceeds an amount equivalent to thirty times
the minimum wage. See 29 CFR 870.10.
(3) When a debtor's pay is subject to withholding orders with priority the
following shall apply:
(i) Unless otherwise provided by Federal law, withholding orders issued
under this section shall be paid in the amounts set forth under paragraph
(i)(2) of this section and shall have priority over other withholding orders
which are served later in time. Notwithstanding the foregoing, withholding
orders for family support shall have priority over withholding orders issued
under this section.
(ii) If amounts are being withheld from a debtor's pay pursuant to a
withholding order served on an employer before a withholding order issued
pursuant to this section, or if a withholding order for family support is
served on an employer at any time, the amounts withheld pursuant to the
withholding order issued under this section shall be the lesser of:
(A) The amount calculated under paragraph (i)(2) of this section, or
(B) An amount equal to 25% of the debtor's disposable pay less the amount(s)
withheld under the withholding order(s) with priority.
(iii) If a debtor owes more than one debt to the Commission, the Commission
may issue multiple withholding orders provided that the total amount
garnished from the debtor's pay for such orders does not exceed the amount
set forth in paragraph (i)(2) of this section. For purposes of this
paragraph (i)(3)(iii), the term agency refers to the Commission that is owed
the debt.
(4) An amount greater than that set forth in paragraphs (i)(2) and (i)(3) of
this section may be withheld upon the written consent of debtor.
(5) The employer shall promptly pay to the Commission all amounts withheld
in accordance with the withholding order issued pursuant to this section.
(6) An employer shall not be required to vary its normal pay and
disbursement cycles in order to comply with the withholding order.
(7) Any assignment or allotment by an employee of his earnings shall be void
to the extent it interferes with or prohibits execution of the withholding
order issued under this section, except for any assignment or allotment made
pursuant to a family support judgment or order.
(8) The employer shall withhold the appropriate amount from the debtor's
wages for each pay period until the employer receives notification from the
Commission to discontinue wage withholding. The garnishment order shall
indicate a reasonable period of time within which the employer is required
to commence wage withholding.
(j) Exclusions from garnishment. The Commission may not garnish the wages of
a debtor who it knows has been involuntarily separated from employment until
the debtor has been reemployed continuously for at least 12 months. The
debtor has the burden of informing the Commission of the circumstances
surrounding an involuntary separation from employment.
(k) Financial hardship. (1) A debtor whose wages are subject to a wage
withholding order under this section, may, at any time, request a review by
the Commission of the amount garnished, based on materially changed
circumstances such as disability, divorce, or catastrophic illness which
result in demonstrated financial hardship.
(2) A debtor requesting a review under paragraph (k)(1) of this section
shall submit the basis for claiming that the current amount of garnishment
results in demonstrated financial hardship to the debtor, along with
supporting documentation. The Commission will consider any information
submitted; however, demonstrated financial hardship must be based on
financial records that include Federal and state tax returns, affidavits
executed under the pain and penalty of perjury, and, in the case of
business-related financial hardship ( e.g. , the debtor is a partner or
member of a business-agency relationship) full financial statements (audited
and/or submitted under oath) in accordance with procedures and standards
established by the Commission.
(3) If a financial hardship is found, the Commission will downwardly adjust,
by an amount and for a period of time agreeable to the Commission, the
amount garnisheed to reflect the debtor's financial condition. The
Commission will notify the employer of any adjustments to the amounts to be
withheld.
(l) Ending garnishment. (1) Once the Commission has fully recovered the
amounts owed by the debtor, including interest, penalties, and
administrative costs consistent with the FCCS, the Commission will send the
debtor's employer notification to discontinue wage withholding.
(2) At least annually, the Commission shall review its debtors' accounts to
ensure that garnishment has been terminated for accounts that have been paid
in full.
(m) Actions prohibited by the employer. An employer may not discharge,
refuse to employ, or take disciplinary action against the debtor due to the
issuance of a withholding order under this section.
(n) Refunds. (1) If a hearing official, at a hearing held pursuant to
paragraph (f)(3) of this section, determines that a debt is not legally due
and owing to the United States, the Commission shall promptly refund any
amount collected by means of administrative wage garnishment.
(2) Unless required by Federal law or contract, refunds under this section
shall not bear interest.
(o) Right of action. The Commission may sue any employer for any amount that
the employer fails to withhold from wages owed and payable to an employee in
accordance with paragraphs (g) and (i) of this section. However, a suit may
not be filed before the termination of the collection action involving a
particular debtor, unless earlier filing is necessary to avoid expiration of
any applicable statute of limitations period. For purposes of this section,
“termination of the collection action” occurs when the Commission has
terminated collection action in accordance with the FCCS or other applicable
standards. In any event, termination of the collection action will have been
deemed to occur if the Commission has not received any payments to satisfy
the debt from the particular debtor whose wages were subject to garnishment,
in whole or in part, for a period of one (1) year.
§§ 1.1937-1.1939 [Reserved]
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Interest, Penalties, Administrative Costs and Other Sanctions
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§ 1.1940 Assessment.
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(a) Except as provided in paragraphs (g), (h), and (i) of this section or
§1.1941, the Commission shall charge interest, penalties, and administrative
costs on debts owed to the United States pursuant to 31 U.S.C. 3717. The
Commission will mail, hand-deliver, or use other forms of transmission,
including facsimile telecopier service, a written notice to the debtor, at
the debtor's CORES contact address (see section 1.8002(b)) explaining the
Commission's requirements concerning these charges except where these
requirements are included in a contractual or repayment agreement, or
otherwise provided in the Commission's rules, as may be amended from time to
time. These charges shall continue to accrue until the debt is paid in full
or otherwise resolved through compromise, termination, or waiver of the
charges. This provision is not intended to modify or limit the terms of any
contract, note, or security agreement from the debtor, or to modify or limit
the Commission's rights under its rules with regard to the notice or the
parties' agreement to waive notice.
(b) The Commission shall charge interest on debts owed the United States as
follows:
(1) Interest shall accrue from the date of delinquency, or as otherwise
provided by the terms of any contract, note, or security agreement,
regulation, or law.
(2) Unless otherwise established in a contract, note, or security agreement,
repayment agreement, or by statute, the rate of interest charged shall be
the rate established annually by the Treasury in accordance with 31 U.S.C.
3717. Pursuant to 31 U.S.C. 3717, an agency may charge a higher rate of
interest if it reasonably determines that a higher rate is necessary to
protect the rights of the United States. The agency should document the
reason(s) for its determination that the higher rate is necessary.
(3) The rate of interest, as initially charged, shall remain fixed for the
duration of the indebtedness. When a debtor defaults on a repayment
agreement and seeks to enter into a new agreement, the agency may require
payment of interest at a new rate that reflects the current value of funds
to the Treasury at the time the new agreement is executed. Interest shall
not be compounded, that is, interest shall not be charged on interest,
penalties, or administrative costs required by this section. If, however, a
debtor defaults on a previous repayment agreement, charges that accrued but
were not collected under the defaulted agreement shall be added to the
principal under the new repayment agreement.
(c) The Commission shall assess administrative costs incurred for processing
and handling delinquent debts. The calculation of administrative costs may
be based on actual costs incurred or upon estimated costs as determined by
the Commission. Commission administrative costs include the personnel and
service costs ( e.g. , telephone, copier, and overhead) to notify and
collect the debt, without regard to the success of such efforts by the
Commission.
(d) Unless otherwise established in a contract, repayment agreement, or by
statute, the Commission will charge a penalty, pursuant to 31 U.S.C.
3717(e)(2), currently not to exceed six percent (6%) a year on the amount
due on a debt that is delinquent for more than 90 days. This charge shall
accrue from the date of delinquency. If the rate permitted under 31 U.S.C.
3717 is changed, the Commission will apply that rate.
(e) The Commission may increase an administrative debt by the cost of living
adjustment in lieu of charging interest and penalties under this section.
Administrative debt includes, but is not limited to, a debt based on fines,
penalties, and overpayments, but does not include a debt based on the
extension of Government credit, such as those arising from loans and loan
guaranties. The cost of living adjustment is the percentage by which the
Consumer Price Index for the month of June of the calendar year preceding
the adjustment exceeds the Consumer Price Index for the month of June of the
calendar year in which the debt was determined or last adjusted. Increases
to administrative debts shall be computed annually. Agencies should use this
alternative only when there is a legitimate reason to do so, such as when
calculating interest and penalties on a debt would be extremely difficult
because of the age of the debt.
(f) When a debt is paid in partial or installment payments, amounts received
by the agency shall be applied first to outstanding penalties and
administrative cost charges, second to accrued interest, and third to the
outstanding principal.
(g) The Commission will waive the collection of interest and administrative
charges imposed pursuant to this section on the portion of the debt that is
paid within 30 days after the date on which interest began to accrue. The
Commission will not extend this 30-day period except for good cause shown of
extraordinary and compelling circumstances, completely documented and
supported in writing, submitted and received before the expiration of the
first 30-day period. The Commission may, on good cause shown of
extraordinary and compelling circumstances, completely documented and
supported in writing, waive interest, penalties, and administrative costs
charged under this section, in whole or in part, without regard to the
amount of the debt, either under the criteria set forth in these standards
for the compromise of debts, or if the agency determines that collection of
these charges is against equity and good conscience or is not in the best
interest of the United States.
(h) The Commission retains the common law right to impose interest and
related charges on debts not subject to 31 U.S.C. 3717.
§ 1.1941 Exemptions.
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(a) The preceding sections of this part, to the extent they reflect remedies
or procedures prescribed by the Debt Collection Act of 1982 and the Debt
Collection Improvement Act of 1996, such as administrative offset, use of
credit bureaus, contracting for collection agencies, and interest and
related charges, do not apply to debts arising under, or payments made
under, the Internal Revenue Code of 1986, as amended (26 U.S.C. 1 et seq. );
the Social Security Act (42 U.S.C. 301 et seq. ), except to the extent
provided under 42 U.S.C. 404 and 31 U.S.C. 3716(c); or the tariff laws of
the United States. These remedies and procedures, however, may be authorized
with respect to debts that are exempt from the Debt Collection Act of 1982
and the Debt Collection Improvement Act of 1996, to the extent that they are
authorized under some other statute or the common law.
(b) This section should not be construed as prohibiting the use of these
authorities or requirements when collecting debts owed by persons employed
by agencies administering the laws cited in paragraph (a) of this section
unless the debt arose under those laws. However, the Commission is
authorized to assess interest and related charges on debts which are not
subject to 31 U.S.C. 3717 to the extent authorized under the common law or
other applicable statutory authority.
§ 1.1942 Other sanctions.
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The remedies and sanctions available to the Commission in this subpart are
not exclusive. The Commission may impose other sanctions, where permitted by
law, for any inexcusable, prolonged, or repeated failure of a debtor to pay
such a claim. In such cases, the Commission will provide notice, as required
by law, to the debtor prior to imposition of any such sanction.
§§ 1.1943-1.1949 [Reserved]
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Cooperation With the Internal Revenue Service
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§ 1.1950 Reporting discharged debts to the Internal Revenue Service.
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(a) In accordance with applicable provisions of the Internal Revenue Code
and implementing regulations (26 U.S.C. 6050P; 26 CFR 1.6050P–1), when the
Commission discharges a debt for less than the full value of the
indebtedness, it will report the outstanding balance discharged, not
including interest, to the Internal Revenue Service, using IRS Form 1099–C
or any other form prescribed by the Service, when:
(1) The principle amount of the debt not in dispute is $600 or more; and
(2) The obligation has not been discharged in a bankruptcy proceeding; and
(3) The obligation is no longer collectible either because the time limit in
the applicable statute for enforcing collection expired during the tax year,
or because during the year a formal compromise agreement was reached in
which the debtor was legally discharged of all or a portion of the
obligation.
(b) The Treasury will prepare the Form 1099–C for those debts transferred to
Treasury for collection and deemed uncollectible.
§ 1.1951 Offset against tax refunds.
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The Commission will take action to effect administrative offset against tax
refunds due to debtors under 26 U.S.C. 6402, in accordance with the
provisions of 31 U.S.C. 3720A and Treasury Department regulations.
§ 1.1952 Use and disclosure of mailing addresses.
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(a) When attempting to locate a debtor in order to collect or compromise a
debt under this subpart or other authority, the Commission may send a
request to the Secretary of the Treasury (or designee) to obtain a debtor's
mailing address from the records of the Internal Revenue Service.
(b) The Commission is authorized to use mailing addresses obtained under
paragraph (a) of this section to enforce collection of a delinquent debt and
may disclose such mailing addresses to other agencies and to collection
agencies for collection purposes.
General Provisions Concerning Interagency Requests
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§ 1.1953 Interagency requests.
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(a) Requests to the Commission by other Federal agencies for administrative
or salary offset shall be in writing and forwarded to the Financial
Operations Center, FCC, 445 12th Street, SW., Washington, DC 20554.
(b) Requests by the Commission to other Federal agencies holding funds
payable to the debtor will be in writing and forwarded, certified return
receipt, as specified by that agency in its regulations. If the agency's
rules governing this matter are not readily available or identifiable, the
request will be submitted to that agency's office of legal counsel with a
request that it be processed in accordance with their internal procedures.
(c) Requests to and from the Commission shall be accompanied by a
certification that the debtor owes the debt (including the amount) and that
the procedures for administrative or salary offset contained in this
subpart, or comparable procedures prescribed by the requesting agency, have
been fully complied with. The Commission will cooperate with other agencies
in effecting collection.
(d) Requests to and from the Commission shall be processed within 30
calendar days of receipt. If such processing is impractical or not feasible,
notice to extend the time period for another 30 calendar days will be
forwarded 10 calendar days prior to the expiration of the first 30-day
period.
Subpart P—Implementation of the Anti-Drug Abuse Act of 1988
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Source: 57 FR 187 , Jan. 3, 1992, unless otherwise noted.
§ 1.2001 Purpose.
top
To determine eligibility for professional and/or commercial licenses issued
by the Commission with respect to any denials of Federal benefits imposed by
Federal and/or state courts under authority granted in 21 U.S.C. 862.
[ 60 FR 39269 , Aug. 2, 1995]
§ 1.2002 Applicants required to submit information.
top
(a) In order to be eligible for any new, modified, and/or renewed instrument
of authorization from the Commission, including but not limited to,
authorizations issued pursuant to sections 214, 301, 302, 303(1), 308,
310(d), 318, 319, 325(b), 351, 361(b), 362(b), 381, and 385 of the
Communications Act of 1934, as amended, by whatever name that instrument may
be designated, all applicants shall certify that neither the applicant nor
any party to the application is subject to a denial of Federal benefits that
includes FCC benefits pursuant to section 5301 of the Anti-Drug Abuse Act of
1988. 21 U.S.C. 862. If a section 5301 certification has been incorporated
into the FCC application form being filed, the applicant need not submit a
separate certification. If a section 5301 certification has not been
incorporated into the FCC application form being filed, the applicant shall
be deemed to have certified by signing the application, unless an exhibit is
included stating that the signature does not constitute such a certification
and explaining why the applicant is unable to certify. If no FCC application
form is involved, the applicant must attach a certification to its written
application. If the applicant is unable to so certify, the applicant shall
be ineligible for the authorization for which it applied, and will have 90
days from the filing of the application to comply with this rule. If a
section 5301 certification has been incorporated into the FCC application
form, failure to respond to the question concerning certification shall
result in dismissal of the application pursuant to the relevant processing
rules.
(b) A party to the application, as used in paragraph (a) of this section
shall include:
(1) If the applicant is an individual, that individual;
(2) If the applicant is a corporation or unincorporated association, all
officers, directors, or persons holding 5% or more of the outstanding stock
or shares (voting and/or non-voting) of the applicant; and
(3) If the applicant is a partnership, all non-limited partners and any
limited partners holding a 5% or more interest in the partnership.
(c) The provisions of paragraphs (a) and (b) of this section are not
applicable to the Amateur Radio Service, the Citizens Band Radio Service,
the Radio Control Radio Service, to users in the Public Mobile Services and
the Private Radio Services that are not individually licensed by the
Commission, or to Federal, State or local governmental entities or
subdivisions thereof.
(d) The provisions of paragraphs (a) and (b) of this section are applicable
to spectrum lessees ( see §1.9003 of subpart X of this part) engaged in
spectrum manager leasing arrangements and de facto transfer leasing
arrangements pursuant to the rules set forth in subpart X of this part.
[ 57 FR 187 , Jan. 3, 1992, as amended at 58 FR 8701 , Feb. 17, 1993; 60 FR 39269 , Aug. 2, 1995; 68 FR 66277 , Nov. 25, 2003]
§ 1.2003 Applications affected.
top
The certification required by §1.2002 must be filed with the following
applications and any other requests for authorization filed with the
Commission, as well as for spectrum leasing notifications and spectrum
leasing applications ( see subpart X of this part), regardless of whether a
specific form exists.
FCC 301 Application for Construction Permit for Commercial Broadcast
Station;
FCC 301–A Application for Authority to Operate a Broadcast Station by
Remote Control or to Make Changes in a Remote Control Authorization;
FCC 302 Application for New Broadcast Station License;
FCC 302—FM Application for FM Broadcast Station License;
FCC 303–S Application for Renewal of License for AM, FM, TV, Translator, or
LPTV Station;
FCC 307 Application for Extension of Broadcast Construction Permit or to
Replace Expired Construction Permit;
FCC 308 Application for Permit to Deliver Programs to Foreign Broadcast
Stations;
FCC 309 Application for Authority to Construct or Make Changes in an
International or Experimental Broadcast Station;
FCC 310 Application for an International, Experimental Television,
Experimental Facsimile, or a Developmental Broadcast Station License;
FCC 311 Application for Renewal of an International or Experimental
Broadcast License;
FCC 313 Application for Authorization in the Auxiliary Radio Broadcast
Services;
FCC 313–R Application for Renewal of Auxiliary Broadcast License;
FCC 314 Application for Consent to Assignment of Broadcast Station
Construction Permit or License;
FCC 315 Application for Consent to Transfer of Control of Corporation
Holding Broadcast Station Construction Permit or License;
FCC 316 Application for Consent to Assignment of Radio Broadcast Station
Construction Permit or License or Transfer of Control of Corporation Holding
Radio Broadcast Station Construction Permit or License;
FCC 327 Application for Cable Television Relay Service Station
Authorzation;
FCC 330 Application for Authorization to Construct New or Make Changes in
an Instructional Television Fixed and/or Response Station(s), or to Assign
or Transfer Such Stations;
FCC 330–L Application for Instructional Television Fixed Station License;
FCC 330–R Application for Renewal of Instructional Television Fixed Station
and/or Response Station(s) and Low Power Relay Station(s) License;
FCC 340 Application for Construction Permit for Noncommercial Educational
Broadcast Station;
FCC 345 Application for Transfer of Control of a Corporate Licensee or
Permittee, or Assignment of License or Permit, for an FM or TV Translator
Station, or a Low Power Television Station;
FCC 346 Application for Authority to Construct or Make Changes in a Low
Power TV, TV Translator or TV Booster Station;
FCC 347 Application for a Low Power TV, TV Translator or TV Booster Station
License;
FCC 349 Application for Authority to Construct or Make Changes in an FM
Translator or FM Booster Station;
FCC 350 Application for an FM Translator or FM Booster Station License;
FCC 401 Application for New or Modified Common Carrier Radio Station
Authorization Under part 22 of this chapter.
FCC 402 Application for Station Authorization in the Private Operational
Fixed Microwave Radio Service;
FCC 402–R Renewal Notice and Certification in the Private Operational Fixed
Microwave Radio Service;
FCC 403 Application for Radio Station License or Modification Thereof Under
parts 23 or 25 of this chapter;
FCC 404 Application for Aircraft Radio Station License;
FCC 405 Application for Renewal of Radio Station License;
FCC 405–A Application for Renewal of Radio Station License and/or
Notification of Change to License Information;
FCC 405–B Ship/Aircraft License Expiration Notice and/or Renewal
Application;
FCC 406 Application for Ground Station Authorization in the Aviation
Services;
FCC 407 Application for New or Modified Radio Station Construction Permit;
FCC 410 Registration of Canadian Radio Station Licensee and Application for
Permit to Operate (Land Mobile);
FCC 442 Application for New or Modified Radio Station Authorization Under
part 5 of this chapter—Experimental Radio Service (Other than Broadcast);
FCC 490 Application for Assignment or Transfer of Control Under part 22 of
this chapter;
FCC 493 Application for Earth Station Authorization or Modification of
Station License (Proposed);
FCC 494 Application for a New or Modified Microwave Radio Station License
Under part 21 of this chapter;
FCC 494–A Certification of Completion of Construction Under part 21 of this
chapter;
FCC 503 Application for Land Radio Station License in the Maritime
Services;
FCC 506 Application for Ship Radio Station License;
FCC 574 Application for Private Land Mobile and General Mobile Radio
Services;
FCC 574–R Application for Renewal of Radio Station License;
FCC 601 FCC Application for Wireless Telecommunications Bureau Radio Service
Authorization;
FCC 602 FCC Ownership Disclosure Information for the Wireless
Telecommunications Services;
FCC 603 Wireless Telecommunications Bureau Application for Assignment of
Authorization and Transfer of Control;
FCC 605 Quick Form Application for Authorization in the Ship, Aircraft,
Amateur, Restricted and Commercial Operator, and General Mobile Radio
Services;
FCC 608 Notification or Application for Spectrum Leasing Arrangement;
FCC 701 Application for Additional Time to Construct a Radio Station;
FCC 702 Application for Consent to Assignment of Radio Station Construction
Permit or License;
FCC 703 Application for Consent to Transfer Control of Corporation Holding
Station License;
FCC 704 Application for Consent to Transfer of Control of Corporation
Holding Common Carrier Radio Station Construction Permit or License;
FCC 730 Application for Registration of Equipment to be Connected to the
Telephone Network;
FCC 731 Application for Equipment Authorization;
FCC 753 Restricted Radiotelephone Operator Permit Application;
FCC 755 Application for Restricted Radiotelephone Operator Permit—Limited
Use;
FCC 756 Application for Commercial Radio Operator License.
[ 57 FR 187 , Jan. 3, 1992, as amended at 57 FR 48333 , Oct. 23, 1992; 59 FR 63051 , Dec. 7, 1994; 63 FR 68942 , Dec. 14, 1998; 68 FR 66277 , Nov. 25, 2003;
69 FR 77550 , Dec. 27, 2004; 70 FR 19307 , Apr. 13, 2005]
Effective Date Note: At 69 FR 77550 , Dec. 27, 2004, §1.2003 was amended.
This section contains information collection and recordkeeping requirements
and will not become effective until approval has been given by the Office of
Management and Budget.
Subpart Q—Competitive Bidding Proceedings
top
Source: 59 FR 44293 , Aug. 26, 1994, unless otherwise noted.
General Procedures
top
§ 1.2101 Purpose.
top
The provisions of this subpart implement Section 309(j) of the
Communications Act of 1934, as added by the Omnibus Budget Reconciliation
Act of 1993 (Pub. L. 103–66) and the Balanced Budget Act of 1997 (Pub. L.
105–33), authorizing the Commission to employ competitive bidding procedures
to choose from among two or more mutually exclusive applications for certain
initial licenses.
[ 63 FR 2340 , Jan. 15, 1998]
§ 1.2102 Eligibility of applications for competitive bidding.
top
(a) Mutually exclusive initial applications are subject to competitive
bidding.
(b) The following types of license applications are not subject to
competitive bidding procedures:
(1) Public safety radio services, including private internal radio services
used by state and local governments and non-government entities and
including emergency road services provided by not-for-profit organizations,
that
(i) Are used to protect the safety of life, health, or property; and
(ii) Are not commercially available to the public;
(2) Initial licenses or construction permits for digital television service
given to existing terrestrial broadcast licensees to replace their analog
television service licenses; or
(3) Noncommercial educational and public broadcast stations described under
47 U.S.C. 397(6).
(c) Applications in the following services or classes of services are not
subject to competitive bidding:
(1) Alaska-Private Fixed Stations ( see 47 CFR part 80, subpart O);
(2) Broadcast radio (AM and FM) and broadcast television (VHF, UHF, LPTV)
under 47 CFR part 73;
(3) Broadcast Auxiliary and Cable Television Relay Services ( see 47 CFR
part 74, subparts D, E, F, G, H and L and part 78, subpart B);
(4) Instructional Television Fixed Service ( see 47 CFR part 74, subpart I);
(5) Maritime Support Stations ( see 47 CFR part 80, subpart N);
(6) Marine Operational Fixed Stations ( see 47 CFR part 80, subpart L);
(7) Marine Radiodetermination Stations ( see 47 CFR part 80, subpart M);
(8) Personal Radio Services ( see 47 CFR part 95), except applications filed
after July 26, 1993, in the Interactive Video Data Service ( see 47 CFR part
95, subpart F);
(9) Public Safety, Industrial/Land Transportation, General and Business
Radio categories above 800 MHz, including finder's preference requests for
frequencies not allocated to the SMR service ( see 47 CFR 90.173), and
including, until further notice of the Commission, the Automated Vehicle
Monitoring Service ( see 47 CFR 90.239);
(10) Private Land Mobile Radio Services between 470–512 MHz ( see 47 CFR
part 90, subparts B-F), including those based on finder's preferences, ( see
47 CFR 90.173);
(11) Private Land Mobile Radio Services below 470 MHz ( see 47 CFR part 90,
subparts B-F) except in the 220 MHz band ( see 47 CFR part 90, subpart T),
including those based on finder's preferences ( see 47 CFR §90.173); and
(12) Private Operational Fixed Services ( see 47 CFR part 94).
Note to §1.2102: To determine the rules that apply to competitive bidding,
specific service rules should also be consulted.
[ 59 FR 44293 , Aug. 26, 1994, as amended at 60 FR 40718 , Aug. 9, 1995; 62 FR 23163 , Apr. 29, 1997; 63 FR 10780 , Mar. 5, 1998]
§ 1.2103 Competitive bidding design options.
top
(a) The Commission will choose from one or more of the following types of
auction designs for services or classes of services subject to competitive
bidding:
(1) Simultaneous multiple-round auctions (using remote or on-site electronic
bidding);
(2) Sequential multiple round auctions (using either oral ascending or
remote and/or on-site electronic bidding);
(3) Sequential or simultaneous single-round auctions (using either sealed
paper or remote and/or on-site electronic bidding); and
(4) Combinatorial (package) bidding auctions.
(b) The Commission may use combinatorial bidding, which would allow bidders
to submit all or nothing bids on combinations of licenses or authorizations,
in addition to bids on individual licenses or authorizations. The Commission
may require that to be declared the high bid, a combinatorial bid must
exceed the sum of the individual bids by a specified amount. Combinatorial
bidding may be used with any type of auction. The Commission may also allow
bidders to submit contingent bids on individual and/or combinations of
licenses.
(1) Apportioned package bid . The apportioned package bid on a license is an
estimate of the price of an individual license included in a package of
licenses in an auction with combinatorial (package) bidding. Apportioned
package bids shall be determined by the Commission according to a
methodology it establishes in advance of each auction with combinatorial
bidding.
(2) Substitute for bid amount . The apportioned package bid on a license
included in a package shall be used in place of the amount of an individual
bid on that license when the bid amount is needed to determine the size of a
designated entity bidding credit (see §1.2110(f)(1) and (f)(2)), a new
entrant bidding credit (see §73.5007), a bid withdrawal or default payment
obligation (see §1.2104(g)), a tribal land bidding credit limit (see
§1.2110(f)(3)(iv)), or a size-based bidding credit unjust enrichment payment
obligation (see §1.2111(d), (e)(2) and (e)(3)), or for any other
determination required by the Commission's rules or procedures.
(c) The Commission may use single combined auctions, which combine bidding
for two or more substitutable licenses and award licenses to the highest
bidders until the available licenses are exhausted. This technique may be
used in conjunction with any type of auction.
(d) The Commission may use real time bidding in all electronic auction
designs.
[ 59 FR 44293 , Aug. 26, 1994, as amended at 62 FR 13542 , Mar. 21, 1997; 63 FR 2341 , Jan. 15, 1998; 68 FR 42995 , July 21, 2003; 71 FR 6226 , Feb. 7, 2006]
§ 1.2104 Competitive bidding mechanisms.
top
(a) Sequencing. The Commission will establish the sequence in which multiple
licenses will be auctioned.
(b) Grouping. In the event the Commission uses either a simultaneous
multiple round competitive bidding design or combinatorial bidding, the
Commission will determine which licenses will be auctioned simultaneously or
in combination.
(c) Reserve Price . The Commission may establish a reserve price or prices,
either disclosed or undisclosed, below which a license or licenses subject
to auction will not be awarded. For any auction of eligible frequencies
described in section 113(g)(2) of the National Telecommunications and
Information Administration Organization Act (47 U.S.C. 923(g)(2)) requiring
the recovery of estimated relocation costs, the Commission will establish a
reserve price or prices pursuant to which the total cash proceeds from any
auction of eligible frequencies shall equal at least 110 percent of the
total estimated relocation costs provided to the Commission by the National
Telecommunications and Information Administration pursuant to section
113(g)(4) of such Act (47 U.S.C. 923(g)(4)).
(d) Minimum Bid Increments, Minimum Opening Bids and Maximum Bid Increments.
The Commission may, by announcement before or during an auction, require
minimum bid increments in dollar or percentage terms. The Commission also
may establish minimum opening bids and maximum bid increments on a
service-specific basis.
(e) Stopping Rules. The Commission may establish stopping rules before or
during multiple round auctions in order to terminate the auctions within a
reasonable time.
(f) Activity Rules. The Commission may establish activity rules which
require a minimum amount of bidding activity.
(g) Withdrawal, Default and Disqualification Payment. As specified below,
when the Commission conducts an auction pursuant to §1.2103, the Commission
will impose payments on bidders who withdraw high bids during the course of
an auction, or who default on payments due after an auction closes or who
are disqualified.
(1) Bid withdrawal prior to close of auction . A bidder that withdraws a bid
during the course of an auction is subject to a withdrawal payment equal to
the difference between the amount of the withdrawn bid and the amount of the
winning bid in the same or subsequent auction(s). In the event that a
bidding credit applies to any of the bids, the bid withdrawal payment is
either the difference between the net withdrawn bid and the subsequent net
winning bid, or the difference between the gross withdrawn bid and the
subsequent gross winning bid, whichever is less. No withdrawal payment will
be assessed for a withdrawn bid if either the subsequent winning bid or any
of the intervening subsequent withdrawn bids equals or exceeds that
withdrawn bid. The withdrawal payment amount is deducted from any upfront
payments or down payments that the withdrawing bidder has deposited with the
Commission. In the case of multiple bid withdrawals on a single license, the
payment for each bid withdrawal will be calculated based on the sequence of
bid withdrawals and the amounts withdrawn in the same or subsequent
auction(s). In the event that a license for which there have been withdrawn
bids subject to withdrawal payments is not won in the same auction, those
bidders for which a final withdrawal payment cannot be calculated will be
assessed an interim bid withdrawal payment of between 3 and 20 percent of
their withdrawn bids, according to a percentage (or percentages) established
by the Commission in advance of the auction. The interim bid withdrawal
payment will be applied toward any final bid withdrawal payment that will be
assessed at the close of a subsequent auction of the corresponding license.
Example 1 to paragraph (g)(1). Bidder A withdraws a bid of $100.
Subsequently, Bidder B places a bid of $90 and withdraws. In that same
auction, Bidder C wins the license at a bid of $95. Withdrawal payments are
assessed as follows: Bidder A owes $5 ($100–$95). Bidder B owes nothing.
Example 2 to paragraph (g)(1). Bidder A withdraws a bid of $100.
Subsequently, Bidder B places a bid of $95 and withdraws. In that same
auction, Bidder C wins the license at a bid of $90. Withdrawal payments are
assessed as follows: Bidder A owes $5 ($100–$95). Bidder B owes $5
($95–$90).
Example 3 to paragraph (g)(1). Bidder A withdraws a bid of $100.
Subsequently, in that same auction, Bidder B places a bid of $90 and
withdraws. In a subsequent auction, Bidder C places a bid of $95 and
withdraws. Bidder D wins the license in that auction at a bid of $80.
Assuming that the Commission established an interim bid withdrawal payment
of 3 percent in advance of the first auction, withdrawal payments are
assessed as follows: At the end of the first auction, Bidder A and Bidder B
are each assessed an interim withdrawal payment equal to 3 percent of their
withdrawn bids pending Commission assessment of a final withdrawal payment
(Bidder A would owe 3% of $100, or $3, and Bidder B would owe 3% of $90, or
$2.70). At the end of the second auction, Bidder A would owe $5 ($100–$95)
less the $3 interim withdrawal payment for a total of $2. Because Bidder C
placed a subsequent bid that was higher than Bidder B's $90 bid, Bidder B
would owe nothing. Bidder C would owe $15 ($95–$80).
(2) Default or disqualification after close of auction . A bidder assumes a
binding obligation to pay its full bid amount upon acceptance of the winning
bid at the close of an auction. If a bidder defaults or is disqualified
after the close of such an auction, the defaulting bidder will be subject to
a default payment consisting of a deficiency payment, described in
§1.2104(g)(2)(i), and an additional payment, described in §1.2104(g)(2)(ii)
and (g)(2)(iii). The default payment will be deducted from any upfront
payments or down payments that the defaulting bidder has deposited with the
Commission.
(i) Deficiency payment . The deficiency payment will equal the difference
between the amount of the defaulted bid and the amount of the winning bid in
a subsequent auction, so long as there have been no intervening withdrawn
bids that equal or exceed the defaulted bid or the subsequent winning bid.
If the subsequent winning bid or any intervening subsequent withdrawn bid
equals or exceeds the defaulted bid, no deficiency payment will be assessed.
If there have been intervening subsequent withdrawn bids that are lower than
the defaulted bid and higher than the subsequent winning bid, but no
intervening withdrawn bids that equal or exceed the defaulted bid, the
deficiency payment will equal the difference between the amount of the
defaulted bid and the amount of the highest intervening subsequent withdrawn
bid. In the event that a bidding credit applies to any of the applicable
bids, the deficiency payment will be based solely on net bids or solely on
gross bids, whichever results in a lower payment.
(ii) Additional payment—applicable percentage . When the default or
disqualification follows an auction without combinatorial bidding, the
additional payment will equal between 3 and 20 percent of the applicable
bid, according to a percentage (or percentages) established by the
Commission in advance of the auction. When the default or disqualification
follows an auction with combinatorial bidding, the additional payment will
equal 25 percent of the applicable bid.
(iii) Additional payment—applicable bid . When no deficiency payment is
assessed, the applicable bid will be the net amount of the defaulted bid.
When a deficiency payment is assessed, the applicable bid will be the
subsequent winning bid, using the same basis—i.e., net or gross—as was used
in calculating the deficiency payment.
(h) The Commission will generally release information concerning the
identities of bidders before each auction but may choose, on an
auction-by-auction basis, to withhold the identity of the bidders associated
with bidder identification numbers.
(i) The Commission may delay, suspend, or cancel an auction in the event of
a natural disaster, technical obstacle, evidence of security breach,
unlawful bidding activity, administrative necessity, or for any other reason
that affects the fair and efficient conduct of the competitive bidding. The
Commission also has the authority, at its sole discretion, to resume the
competitive bidding starting from the beginning of the current or some
previous round or cancel the competitive bidding in its entirety.
(j) Bid apportionment . The Commission may specify a method for apportioning
a bid among portions of the license (i.e., portions of the license's service
area or bandwidth, or both) when necessary to compare a bid on the original
license or portions thereof with a bid on a corresponding reconfigured
license for purposes of the Commission's rules or procedures, such as to
calculate a bid withdrawal or default payment obligation in connection with
the bid.
[ 59 FR 44293 , Aug. 26, 1994, as amended at 63 FR 2341 , Jan. 15, 1998; 65 FR 52344 , Aug. 29, 2000; 68 FR 42995 , July 21, 2003; 71 FR 6226 , Feb. 7, 2006]
§ 1.2105 Bidding application and certification procedures; prohibition of
collusion.
top
Link to an amendment published at 72 FR 48843 , Aug. 24, 2007.
(a) Submission of Short-Form Application (FCC Form 175). In order to be
eligible to bid, an applicant must timely submit a short-form application
(FCC Form 175), together with any appropriate upfront payment set forth by
Public Notice. Beginning January 1, 1999, all short-form applications must
be filed electronically.
(1) All short-form applications will be due:
(i) On the date(s) specified by public notice; or
(ii) In the case of application filing dates which occur automatically by
operation of law ( see, e.g., 47 CFR 22.902), on a date specified by public
notice after the Commission has reviewed the applications that have been
filed on those dates and determined that mutual exclusivity exists.
(2) The short-form application must contain the following information:
(i) Identification of each license on which the applicant wishes to bid;
(ii)(A) The applicant's name, if the applicant is an individual. If the
applicant is a corporation, then the short-form application will require the
name and address of the corporate office and the name and title of an
officer or director. If the applicant is a partnership, then the application
will require the name, citizenship and address of all general partners, and,
if a partner is not a natural person, then the name and title of a
responsible person should be included as well. If the applicant is a trust,
then the name and address of the trustee will be required. If the applicant
is none of the above, then it must identify and describe itself and its
principals or other responsible persons; and
(B) Applicant ownership and other information, as set forth in §1.2112.
(iii) The identity of the person(s) authorized to make or withdraw a bid;
(iv) If the applicant applies as a designated entity pursuant to §1.2110, a
statement to that effect and a declaration, under penalty of perjury, that
the applicant is qualified as a designated entity under §1.2110.
(v) Certification that the applicant is legally, technically, financially
and otherwise qualified pursuant to section 308(b) of the Communications Act
of 1934, as amended. The Commission will accept applications certifying that
a request for waiver or other relief from the requirements of section 310 is
pending;
(vi) Certification that the applicant is in compliance with the foreign
ownership provisions of section 310 of the Communications Act of 1934, as
amended;
(vii) Certification that the applicant is and will, during the pendency of
its application(s), remain in compliance with any service-specific
qualifications applicable to the licenses on which the applicant intends to
bid including, but not limited to, financial qualifications. The Commission
may require certification in certain services that the applicant will,
following grant of a license, come into compliance with certain
service-specific rules, including, but not limited to, ownership eligibility
limitations;
(viii) An exhibit, certified as truthful under penalty of perjury,
identifying all parties with whom the applicant has entered into
partnerships, joint ventures, consortia or other agreements, arrangements or
understandings of any kind relating to the licenses being auctioned,
including any such agreements relating to the post-auction market structure.
(ix) Certification under penalty of perjury that it has not entered and will
not enter into any explicit or implicit agreements, arrangements or
understandings of any kind with any parties other than those identified
pursuant to paragraph (a)(2)(viii) regarding the amount of their bids,
bidding strategies or the particular licenses on which they will or will not
bid.
(x) Certification that the applicant is not in default on any Commission
licenses and that it is not delinquent on any non-tax debt owed to any
Federal agency.
(xi) An attached statement made under penalty of perjury indicating whether
or not the applicant has ever been in default on any Commission license or
has ever been delinquent on any non-tax debt owed to any Federal agency.
Note to paragraph(a): The Commission may also request applicants to submit
additional information for informational purposes to aid in its preparation
of required reports to Congress.
(b) Modification and Dismissal of Short-Form Application (FCC Form 175). (1)
Any short-form application (FCC Form 175) that does not contain all of the
certifications required pursuant to this section is unacceptable for filing
and cannot be corrected subsequent to the applicable filing deadline. The
application will be dismissed with prejudice and the upfront payment, if
paid, will be returned.
(2) The Commission will provide bidders a limited opportunity to cure
defects specified herein (except for failure to sign the application and to
make certifications) and to resubmit a corrected application. During the
resubmission period for curing defects, a short-form application may be
amended or modified to cure defects identified by the Commission or to make
minor amendments or modifications. After the resubmission period has ended,
a short-form application may be amended or modified to make minor changes or
correct minor errors in the application. Major amendments cannot be made to
a short-form application after the initial filing deadline. Major amendments
include changes in ownership of the applicant that would constitute an
assignment or transfer of control, changes in an applicant's size which
would affect eligibility for designated entity provisions, and changes in
the license service areas identified on the short-form application on which
the applicant intends to bid. Minor amendments include, but are not limited
to, the correction of typographical errors and other minor defects not
identified as major. An application will be considered to be newly filed if
it is amended by a major amendment and may not be resubmitted after
applicable filing deadlines.
(3) Applicants who fail to correct defects in their applications in a timely
manner as specified by public notice will have their applications dismissed
with no opportunity for resubmission.
(c) Prohibition of collusion. (1) Except as provided in paragraphs (c)(2),
(c)(3), and (c)(4) of this section, after the short-form application filing
deadline, all applicants for licenses in any of the same geographic license
areas are prohibited from cooperating or collaborating with respect to,
discussing with each other, or disclosing to each other in any manner the
substance of their own, or each other's, or any other competing applicants'
bids or bidding strategies, or discussing or negotiating settlement
agreements, until after the down payment deadline, unless such applicants
are members of a bidding consortium or other joint bidding arrangement
identified on the bidder's short-form application pursuant to
§1.2105(a)(2)(viii).
(2) Applicants may modify their short-form applications to reflect formation
of consortia or changes in ownership at any time before or during an
auction, provided such changes do not result in a change in control of the
applicant, and provided that the parties forming consortia or entering into
ownership agreements have not applied for licenses in any of the same
geographic license areas. Such changes will not be considered major
modifications of the application.
(3) After the filing of short-form applications, applicants may make
agreements to bid jointly for licenses, provided the parties to the
agreement have not applied for licenses in any of the same geographic
license areas.
(4) After the filing of short-form applications, a holder of a
non-controlling attributable interest in an entity submitting a short-form
application may acquire an ownership interest in, form a consortium with, or
enter into a joint bidding arrangement with, other applicants for licenses
in the same geographic license area, provided that:
(i) The attributable interest holder certifies to the Commission that it has
not communicated and will not communicate with any party concerning the bids
or bidding strategies of more than one of the applicants in which it holds
an attributable interest, or with which it has a consortium or joint bidding
arrangement, and which have applied for licenses in the same geographic
license area(s); and
(ii) The arrangements do not result in any change in control of an
applicant; or
(iii) When an applicant has withdrawn from the auction, is no longer placing
bids and has no further eligibility, a holder of a non-controlling,
attributable interest in such an applicant may obtain an ownership interest
in or enter into a consortium with another applicant for a license in the
same geographic service area, provided that the attributable interest holder
certifies to the Commission that it did not communicate with the new
applicant prior to the date that the original applicant withdrew from the
auction.
(5) Applicants must modify their short-form applications to reflect any
changes in ownership or in membership of consortia or joint bidding
arrangements.
(6) Any applicant that makes or receives a communication of bids or bidding
strategies prohibited under paragraph (c)(1) of this section shall report
such communication in writing to the Commission immediately, and in no case
later than five business days after the communication occurs. Such reports
shall be filed with the Office of the Secretary, and a copy shall be sent to
the Chief of the Auctions and Spectrum Access Division, Wireless
Telecommunications Bureau.
(7) For purposes of this paragraph:
(i) The term applicant shall include all controlling interests in the entity
submitting a short-form application to participate in an auction (FCC Form
175), as well as all holders of partnership and other ownership interests
and any stock interest amounting to 10 percent or more of the entity, or
outstanding stock, or outstanding voting stock of the entity submitting a
short-form application, and all officers and directors of that entity; and
(ii) The term bids or bidding strategies shall include capital calls or
requests for additional funds in support of bids or bidding strategies.
Example: Company A is an applicant in area 1. Company B and Company C each
own 10 percent of Company A. Company D is an applicant in area 1, area 2,
and area 3. Company C is an applicant in area 3. Without violating the
Commission's Rules, Company B can enter into a consortium arrangement with
Company D or acquire an ownership interest in Company D if Company B
certifies either (1) that it has communicated with and will communicate
neither with Company A or anyone else concerning Company A's bids or bidding
strategy, nor with Company C or anyone else concerning Company C's bids or
bidding strategy, or (2) that it has not communicated with and will not
communicate with Company D or anyone else concerning Company D's bids or
bidding strategy.
[ 63 FR 2341 , Jan. 15, 1998, as amended at 63 FR 29958 , June 2, 1998; 63 FR 50799 , Sept. 23, 1998; 64 FR 59659 , Nov. 3, 1999; 65 FR 52345 , Aug. 29,
2000; 66 FR 54452 , Oct. 29, 2001; 71 FR 15619 , Mar. 29, 2006; 71 FR 26251 ,
May 4, 2006]
§ 1.2106 Submission of upfront payments.
top
(a) The Commission may require applicants for licenses subject to
competitive bidding to submit an upfront payment. In that event, the amount
of the upfront payment and the procedures for submitting it will be set
forth in a Public Notice. Any auction applicant that has previously been in
default on any Commission license or has previously been delinquent on any
non-tax debt owed to any Federal agency must submit an upfront payment equal
to 50 percent more than that set for each particular license. No interest
will be paid on upfront payments.
(b) Upfront payments must be made by wire transfer in U.S. dollars from a
financial institution whose deposits are insured by the Federal Deposit
Insurance Corporation and must be made payable to the Federal Communications
Commission.
(c) If an upfront payment is not in compliance with the Commission's Rules,
or if insufficient funds are tendered to constitute a valid upfront payment,
the applicant shall have a limited opportunity to correct its submission to
bring it up to the minimum valid upfront payment prior to the auction. If
the applicant does not submit at least the minimum upfront payment, it will
be ineligible to bid, its application will be dismissed and any upfront
payment it has made will be returned.
(d) The upfront payment(s) of a bidder will be credited toward any down
payment required for licenses on which the bidder is the high bidder. Where
the upfront payment amount exceeds the required deposit of a winning bidder,
the Commission may refund the excess amount after determining that no bid
withdrawal penalties are owed by that bidder.
(e) In accordance with the provisions of paragraph (d), in the event a
penalty is assessed pursuant to §1.2104 for bid withdrawal or default,
upfront payments or down payments on deposit with the Commission will be
used to satisfy the bid withdrawal or default penalty before being applied
toward any additional payment obligations that the high bidder may have.
[ 59 FR 44293 , Aug. 26, 1994, as amended at 62 FR 13543 , Mar. 21, 1997; 65 FR 52345 , Aug. 29, 2000]
§ 1.2107 Submission of down payment and filing of long-form applications.
top
(a) After bidding has ended, the Commission will identify and notify the
high bidder and declare the bidding closed.
(b) Unless otherwise specified by public notice, within ten (10) business
days after being notified that it is a high bidder on a particular
license(s), a high bidder must submit to the Commission's lockbox bank such
additional funds (the “down payment”) as are necessary to bring its total
deposits (not including upfront payments applied to satisfy bid withdrawal
or default payments) up to twenty (20) percent of its high bid(s). (In
single round sealed bid auctions conducted under §1.2103, however, bidders
may be required to submit their down payments with their bids.) Unless
otherwise specified by public notice, this down payment must be made by wire
transfer in U.S. dollars from a financial institution whose deposits are
insured by the Federal Deposit Insurance Corporation and must be made
payable to the Federal Communications Commission. Down payments will be held
by the Commission until the high bidder has been awarded the license and has
paid the remaining balance due on the license or authorization, in which
case it will not be returned, or until the winning bidder is found
unqualified to be a licensee or has defaulted, in which case it will be
returned, less applicable payments. No interest on any down payment will be
paid to the bidders.
(c) A high bidder that meets its down payment obligations in a timely manner
must, within ten (10) business days after being notified that it is a high
bidder, submit an additional application (the “long-form application”)
pursuant to the rules governing the service in which the applicant is the
high bidder. Notwithstanding any other provision in title 47 of the Code of
Federal Regulations to the contrary, high bidders need not submit an
additional application filing fee with their long-form applications.
Specific procedures for filing applications will be set out by Public
Notice. Ownership disclosure requirements are set forth in §1.2112.
Beginning January 1, 1999, all long-form applications must be filed
electronically. An applicant that fails to submit the required long-form
application under this paragraph and fails to establish good cause for any
late-filed submission, shall be deemed to have defaulted and will be subject
to the payments set forth in §1.2104.
(d) As an exhibit to its long-form application, the applicant must provide a
detailed explanation of the terms and conditions and parties involved in any
bidding consortia, joint venture, partnership or other agreement or
arrangement it had entered into relating to the competitive bidding process
prior to the time bidding was completed. Such agreements must have been
entered into prior to the filing of short-form applications pursuant to
§1.2105.
(e) A winning bidder that seeks a bidding credit to serve a qualifying
tribal land, as defined in §1.2110(f)(3)(i), within a particular market must
indicate on the long-form application (FCC Form 601) that it intends to
serve a qualifying tribal land within that market.
(f) An applicant must also submit FCC Form 602 ( see §1.919 of this chapter)
with its long form application (FCC Form 601).
(g)(1)(i) A consortium participating in competitive bidding pursuant to
§1.2110(b)(3)(i) that is a winning bidder may not apply as a consortium for
licenses covered by the winning bids. Individual members of the consortium
or new legal entities comprising individual consortium members may apply for
the licenses covered by the winning bids of the consortium. An individual
member of the consortium or a new legal entity comprising two or more
individual consortium members applying for a license pursuant to this
provision shall be the applicant for purposes of all related requirements
and filings, such as filing FCC Form 602. However, the members filing
separate long-form applications shall all use the consortium's FCC
Registration Number (“FRN”) on their long-form applications. An application
by an individual consortium member or a new legal entity comprising two or
more individual consortium members for a license covered by the winning bids
of the consortium shall not constitute a major modification of the
application or a change in control of the applicant for purposes of
Commission rules governing the application.
(ii) Within ten business days after release of the public notice announcing
grant of a long-form application, that licensee must update its filings in
the Commission's Universal Licensing System (“ULS”) to substitute its
individual FRN for that of the consortium.
(2) The continuing eligibility for size-based benefits, such as size-based
bidding credits or set-aside licenses, of a newly formed legal entity
comprising two or more individual consortium members will be based on the
size of such newly formed entity as of the filing of its long-form
application.
(3) Members of a consortium intending to partition or disaggregate
license(s) among individual members or new legal entities comprising two or
more individual consortium members must select one member or one new legal
entity comprising two or more individual consortium members to apply for the
license(s). The applicant must include in its applications, as part of the
explanation of terms and conditions provided pursuant to §1.2107(d), the
agreement of the applicable parties to partition or disaggregate the
relevant license(s). Upon grant of the long-form application for that
license, the licensee must then apply to partition or disaggregate the
license pursuant to those terms and conditions.
[ 59 FR 44293 , Aug. 26, 1994, as amended at 61 FR 49075 , Sept. 18, 1996; 62 FR 13543 , Mar. 21, 1997; 63 FR 2342 , Jan. 15, 1998; 63 FR 12659 , Mar. 16,
1998; 63 FR 68942 , Dec. 14, 1998; 65 FR 47354 , Aug. 2, 2000; 67 FR 45365 ,
July 9, 2002; 71 FR 6227 , Feb. 7, 2006]
§ 1.2108 Procedures for filing petitions to deny against long-form
applications.
top
(a) Where petitions to deny are otherwise provided for under the Act or the
commission's Rules, and unless other service-specific procedures for the
filing of such petitions are provided for elsewhere in the Commission's
Rules, the procedures in this section shall apply to the filing of petitions
to deny the long-form applications of winning bidders.
(b) Within a period specified by Public Notice and after the Commission by
Public Notice announces that long-form applications have been accepted for
filing, petitions to deny such applications may be filed. The period for
filing petitions to deny shall be no more than ten (10) days. The
appropriate licensing Bureau, within its discretion, may, in exigent
circumstances, reduce this period of time to no less than five (5) days. Any
such petitions must contain allegations of fact supported by affidavit of a
person or persons with personal knowledge thereof.
(c) An applicant may file an opposition to any petition to deny, and the
petitioner a reply to such opposition. Allegations of fact or denials
thereof must be supported by affidavit of a person or persons with personal
knowledge thereof. The time for filing such oppositions shall be at least
five (5) days from the filing date for petitions to deny, and the time for
filing replies shall be at least five (5) days from the filing date for
oppositions. The Commission may grant a license based on any long-form
application that has been accepted for filing. The Commission shall in no
case grant licenses earlier than seven (7) days following issuance of a
public notice announcing long-form applications have been accepted for
filing.
(d) If the Commission determines that:
(1) An applicant is qualified and there is no substantial and material issue
of fact concerning that determination, it will grant the application.
(2) An applicant is not qualified and that there is no substantial issue of
fact concerning that determination, the Commission need not hold an
evidentiary hearing and will deny the application.
(3) Substantial and material issues of fact require a hearing, it will
conduct a hearing. The Commission may permit all or part of the evidence to
be submitted in written form and may permit employees other than
administrative law judges to preside at the taking of written evidence. Such
hearing will be conducted on an expedited basis.
[ 59 FR 44293 , Aug. 26, 1994, as amended at 63 FR 2343 , Jan. 15, 1998; 65 FR 52345 , Aug. 29, 2000]
§ 1.2109 License grant, denial, default, and disqualification.
top
(a) Unless otherwise specified by public notice, auction winners are
required to pay the balance of their winning bids in a lump sum within ten
(10) business days following the release of a public notice establishing the
payment deadline. If a winning bidder fails to pay the balance of its
winning bids in a lump sum by the applicable deadline as specified by the
Commission, it will be allowed to make payment within ten (10) business days
after the payment deadline, provided that it also pays a late fee equal to
five percent of the amount due. When a winning bidder fails to pay the
balance of its winning bid by the late payment deadline, it is considered to
be in default on its license(s) and subject to the applicable default
payments. Licenses will be awarded upon the full and timely payment of
winning bids and any applicable late fees.
(b) If a winning bidder withdraws its bid after the Commission has declared
competitive bidding closed or fails to remit the required down payment
within ten (10) business days after the Commission has declared competitive
bidding closed, the bidder will be deemed to have defaulted, its application
will be dismissed, and it will be liable for the default payment specified
in §§1.2104(g)(2) or 1.2104(g)(3), whichever is applicable. In such event,
the Commission, at its discretion, may either re-auction the license(s) to
existing or new applicants or offer it to the other highest bidders (in
descending order) at their final bids. If the license(s) is offered to the
other highest bidders (in descending order), the down payment obligations
set forth in §1.2107(b) will apply. However, in combinatorial bidding
auctions, the Commission will only re-auction the license(s) to existing or
new applicants. The Commission will not offer the package or licenses to the
next highest bidder.
(c) A winning bidder who is found unqualified to be a licensee, fails to
remit the balance of its winning bid in a timely manner, or defaults or is
disqualified for any reason after having made the required down payment,
will be deemed to have defaulted, its application will be dismissed, and it
will be liable for the payment set forth in §§1.2104(g)(2) or 1.2104(g)(3),
whichever is applicable. In such event, the Commission may either re-auction
the license(s) to existing or new applicants or offer it to the other
highest bidders (in descending order) at their final bids. However, in
combinatorial bidding auctions, the Commission will only re-auction the
license(s) to existing or new applicants. The Commission will not offer the
package or licenses to the next highest bidder.
(d) Bidders who are found to have violated the antitrust laws or the
Commission's rules in connection with their participation in the competitive
bidding process may be subject, in addition to any other applicable
sanctions, to forfeiture of their upfront payment, down payment or full bid
amount, and may be prohibited from participating in future auctions.
[ 59 FR 44293 , Aug. 26, 1994, as amended at 62 FR 13544 , Mar. 21, 1997; 63 FR 2343 , Jan. 15, 1998; 68 FR 42996 , July 21, 2003]
§ 1.2110 Designated entities.
top
(a) Designated entities are small businesses, businesses owned by members of
minority groups and/or women, and rural telephone companies.
(b) Eligibility for small business and entrepreneur provisions —(1) Size
attribution. (i) The gross revenues of the applicant (or licensee), its
affiliates, its controlling interests, the affiliates of its controlling
interests, and the entities with which it has an attributable material
relationship shall be attributed to the applicant (or licensee) and
considered on a cumulative basis and aggregated for purposes of determining
whether the applicant (or licensee) is eligible for status as a small
business, very small business, or entrepreneur, as those terms are defined
in the service-specific rules. An applicant seeking status as a small
business, very small business, or entrepreneur, as those terms are defined
in the service-specific rules, must disclose on its short- and long-form
applications, separately and in the aggregate, the gross revenues for each
of the previous three years of the applicant (or licensee), its affiliates,
its controlling interests, the affiliates of its controlling interests, and
the entities with which it has an attributable material relationship.
(ii) If applicable, pursuant to §24.709 of this chapter, the total assets of
the applicant (or licensee), its affiliates, its controlling interests, the
affiliates of its controlling interests, and the entities with which it has
an attributable material relationship shall be attributed to the applicant
(or licensee) and considered on a cumulative basis and aggregated for
purposes of determining whether the applicant (or licensee) is eligible for
status as an entrepreneur. An applicant seeking status as an entrepreneur
must disclose on its short- and long-form applications, separately and in
the aggregate, the gross revenues for each of the previous two years of the
applicant (or licensee), its affiliates, its controlling interests, the
affiliates of its controlling interests, and the entities with which it has
an attributable material relationship.
(2) Aggregation of affiliate interests. Persons or entities that hold
interests in an applicant (or licensee) that are affiliates of each other or
have an identity of interests identified in §1.2110(c)(5)(iii) will be
treated as though they were one person or entity and their ownership
interests aggregated for purposes of determining an applicant's (or
licensee's) compliance with the requirements of this section.
Example 1 to paragraph (b)(2): ABC Corp. is owned by individuals, A, B and
C, each having an equal one-third voting interest in ABC Corp. A and B
together, with two-thirds of the stock have the power to control ABC Corp.
and have an identity of interest. If A&B invest in DE Corp., a broadband PCS
applicant for block C, A and B's separate interests in DE Corp. must be
aggregated because A and B are to be treated as one person or entity.
Example 2 to paragraph (b)(2): ABC Corp. has subsidiary BC Corp., of which
it holds a controlling 51 percent of the stock. If ABC Corp. and BC Corp.,
both invest in DE Corp., their separate interests in DE Corp. must be
aggregated because ABC Corp. and BC Corp. are affiliates of each other.
(3) Exceptions. (i) Consortium . Where an applicant to participate in
bidding for Commission licenses or permits is a consortium either of
entities eligible for size-based bidding credits an/or for closed bidding
based on gross revenues and/or total assets, the gross revenues and/or total
assets of each consortium member shall not be aggregated. Each consortium
member must constitute a separate and distinct legal entity to qualify for
this exception. Consortia that are winning bidders using this exception must
comply with the requirements of §1.2107(g) of this chapter as a condition of
license grant.
(ii) Applicants without identifiable controlling interests. Where an
applicant (or licensee) cannot identify controlling interests under the
standards set forth in this section, the gross revenues of all interest
holders in the applicant, and their affiliates, will be attributable.
(iii) Rural telephone cooperatives. (A)( 1 ) An applicant will be exempt
from §1.2110(c)(2)(ii)(F) for the purpose of attribution in §1.2110(b)(1),
if the applicant or a controlling interest in the applicant, as the case may
be, meets all of the following conditions:
( i ) The applicant (or the controlling interest) is organized as a
cooperative pursuant to state law;
( ii ) The applicant (or the controlling interest) is a “rural telephone
company” as defined by the Communications Act; and
( iii ) The applicant (or the controlling interest) demonstrates either that
it is eligible for tax-exempt status under the Internal Revenue Code or that
it adheres to the cooperative principles articulated in Puget Sound Plywood,
Inc. v. Commissioner of Internal Revenue, 44 T.C. 305 (1965).
( 2 ) If the condition in paragraph (b)(3)(iii)(A)( 1 )( i ) above cannot be
met because the relevant jurisdiction has not enacted an organic statute
that specifies requirements for organization as a cooperative, the applicant
must show that it is validly organized and its articles of incorporation,
by-laws, and/or other relevant organic documents provide that it operates
pursuant to cooperative principles.
(B) However, if the applicant is not an eligible rural telephone cooperative
under paragraph (a) of this section, and the applicant has a controlling
interest other than the applicant's officers and directors or an eligible
rural telephone cooperative's officers and directors, paragraph (a) of this
section applies with respect to the applicant's officers and directors and
such controlling interest's officers and directors only when such
controlling interest is either:
( 1 ) An eligible rural telephone cooperative under paragraph (a) of this
section or
( 2 ) controlled by an eligible rural telephone cooperative under paragraph
(a) of this section.
(iv) Applicants or licensees with material relationships —(A) Impermissible
material relationships. An applicant or licensee that would otherwise be
eligible for designated entity benefits under this section and applicable
service-specific rules shall be ineligible for such benefits if the
applicant or licensee has an impermissible material relationship. An
applicant or licensee has an impermissible material relationship when it has
arrangements with one or more entities for the lease or resale (including
under a wholesale agreement) of, on a cumulative basis, more than 50 percent
of the spectrum capacity of any one of the applicant's or licensee's
licenses.
(B) Attributable material relationships. An applicant or licensee must
attribute the gross revenues (and, if applicable, the total assets) of any
entity, (including the controlling interests, affiliates, and affiliates of
the controlling interests of that entity) with which the applicant or
licensee has an attributable material relationship. An applicant or licensee
has an attributable material relationship when it has one or more
arrangements with any individual entity for the lease or resale (including
under a wholesale agreement) of, on a cumulative basis, more than 25 percent
of the spectrum capacity of any one of the applicant's or licensee's
licenses.
(C) Grandfathering —( 1 ) Licensees. An impermissible or attributable
material relationship shall not disqualify a licensee for previously awarded
benefits with respect to a license awarded before April 25, 2006, based on
spectrum lease or resale (including wholesale) arrangements entered into
before April 25, 2006.
( 2 ) Applicants. An impermissible or attributable material relationship
shall not disqualify an applicant seeking eligibility in an application for
a license, authorization, assignment, or transfer of control or for
partitioning or disaggregation filed before April 25, 2006, based on
spectrum lease or resale (including wholesale) arrangements entered into
before April 25, 2006. Any applicant seeking eligibility in an application
for a license, authorization, assignment, or transfer of control or for
partitioning or disaggregation filed after April 25, 2006, or in an
application to participate in an auction in which bidding begins on or after
June 5, 2006, need not attribute the material relationship(s) of those
entities that are its affiliates based solely on §1.2110(c)(5)(i)(C) if
those affiliates entered into such material relationship(s) before April 25,
2006, and are subject to a contractual prohibition preventing them from
contributing to the applicant's total financing.
Example to paragraph (b)(3)(iv)(C)(2): Newco is an applicant seeking
designated entity status in an auction in which bidding begins after the
effective date of the rules. Investor is a controlling interest of Newco.
Investor also is a controlling interest of Existing DE. Existing DE
previously was awarded designated entity benefits and has impermissible
material relationships based on leasing agreements entered into before April
25, 2006, with a third party, Lessee, that were in compliance with the
Commission's designated eligibility standards prior to April 25, 2006. In
this example, Newco would not be prohibited from acquiring designated entity
benefits solely because of the existing impermissible material relationships
of its affiliate, Existing DE. Newco, Investor, and Existing DE, however,
would need to enter into a contractual prohibition that prevents Existing DE
from contributing to the total financing of Newco.
(c) Definitions —(1) Small businesses. The Commission will establish the
definition of a small business on a service-specific basis, taking into
consideration the characteristics and capital requirements of the particular
service.
(2) Controlling interests. (i) For purposes of this section, controlling
interest includes individuals or entities with either de jure or de facto
control of the applicant. De jure control is evidenced by holdings of
greater than 50 percent of the voting stock of a corporation, or in the case
of a partnership, general partnership interests. De facto control is
determined on a case-by-case basis. An entity must disclose its equity
interest and demonstrate at least the following indicia of control to
establish that it retains de facto control of the applicant:
(A) The entity constitutes or appoints more than 50 percent of the board of
directors or management committee;
(B) The entity has authority to appoint, promote, demote, and fire senior
executives that control the day-to-day activities of the licensee; and
(C) The entity plays an integral role in management decisions.
(ii) Calculation of certain interests. (A) Fully diluted requirement. ( 1 )
Except as set forth in paragraph (c)(2)(ii)(A)( 2 ) of this section,
ownership interests shall be calculated on a fully diluted basis; all
agreements such as warrants, stock options and convertible debentures will
generally be treated as if the rights thereunder already have been fully
exercised.
( 2 ) Rights of first refusal and put options shall not be calculated on a
fully diluted basis for purposes of determining de jure control; however,
rights of first refusal and put options shall be calculated on a fully
diluted basis if such ownership interests, in combination with other terms
to an agreement, deprive an otherwise qualified applicant or licensee of de
facto control.
Note to paragraph(c)(2)(ii)(A): Mutually exclusive contingent ownership
interests, i.e., one or more ownership interests that, by their terms, are
mutually exclusive of one or more other ownership interests, shall be
calculated as having been fully exercised only in the possible combinations
in which they can be exercised by their holder(s). A contingent ownership
interest is mutually exclusive of another only if contractual language
specifies that both interests cannot be held simultaneously as present
ownership interests.
(B) Partnership and other ownership interests and any stock interest equity,
or outstanding stock, or outstanding voting stock shall be attributed as
specified.
(C) Stock interests held in trust shall be attributed to any person who
holds or shares the power to vote such stock, to any person who has the sole
power to sell such stock, and to any person who has the right to revoke the
trust at will or to replace the trustee at will. If the trustee has a
familial, personal, or extra-trust business relationship to the grantor or
the beneficiary, the grantor or beneficiary, as appropriate, will be
attributed with the stock interests held in trust.
(D) Non-voting stock shall be attributed as an interest in the issuing
entity.
(E) Limited partnership interests shall be attributed to limited partners
and shall be calculated according to both the percentage of equity paid in
and the percentage of distribution of profits and losses.
(F) Officers and directors of the applicant shall be considered to have a
controlling interest in the applicant. The officers and directors of an
entity that controls a licensee or applicant shall be considered to have a
controlling interest in the licensee or applicant. The personal net worth,
including personal income of the officers and directors of an applicant, is
not attributed to the applicant. To the extent that the officers and
directors of an applicant are affiliates of other entities, the gross
revenues of the other entities are attributed to the applicant.
(G) Ownership interests that are held indirectly by any party through one or
more intervening corporations will be determined by successive
multiplication of the ownership percentages for each link in the vertical
ownership chain and application of the relevant attribution benchmark to the
resulting product, except that if the ownership percentage for an interest
in any link in the chain exceeds 50 percent or represents actual control, it
shall be treated as if it were a 100 percent interest.
(H) Any person who manages the operations of an applicant or licensee
pursuant to a management agreement shall be considered to have a controlling
interest in such applicant or licensee if such person, or its affiliate, has
authority to make decisions or otherwise engage in practices or activities
that determine, or significantly influence:
( 1 ) The nature or types of services offered by such an applicant or
licensee;
( 2 ) The terms upon which such services are offered; or
( 3 ) The prices charged for such services.
(I) Any licensee or its affiliate who enters into a joint marketing
arrangement with an applicant or licensee, or its affiliate, shall be
considered to have a controlling interest, if such applicant or licensee, or
its affiliate, has authority to make decisions or otherwise engage in
practices or activities that determine, or significantly influence:
( 1 ) The nature or types of services offered by such an applicant or
licensee;
( 2 ) The terms upon which such services are offered; or
( 3 ) The prices charged for such services.
(3) Businesses owned by members of minority groups and/or women. Unless
otherwise provided in rules governing specific services, a business owned by
members of minority groups and/or women is one in which minorities and/or
women who are U.S. citizens control the applicant, have at least greater
than 50 percent equity ownership and, in the case of a corporate applicant,
have a greater than 50 percent voting interest. For applicants that are
partnerships, every general partner must be either a minority and/or woman
(or minorities and/or women) who are U.S. citizens and who individually or
together own at least 50 percent of the partnership equity, or an entity
that is 100 percent owned and controlled by minorities and/or women who are
U.S. citizens. The interests of minorities and women are to be calculated on
a fully diluted basis; agreements such as stock options and convertible
debentures shall be considered to have a present effect on the power to
control an entity and shall be treated as if the rights thereunder already
have been fully exercised. However, upon a demonstration that options or
conversion rights held by non-controlling principals will not deprive the
minority and female principals of a substantial financial stake in the
venture or impair their rights to control the designated entity, a
designated entity may seek a waiver of the requirement that the equity of
the minority and female principals must be calculated on a fully-diluted
basis. The term minority includes individuals of Black or African American,
Hispanic or Latino, American Indian or Alaskan Native, Asian, and Native
Hawaiian or Pacific Islander extraction.
(4) Rural telephone companies. A rural telephone company is any local
exchange carrier operating entity to the extent that such entity—
(i) Provides common carrier service to any local exchange carrier study area
that does not include either:
(A) Any incorporated place of 10,000 inhabitants or more, or any part
thereof, based on the most recently available population statistics of the
Bureau of the Census, or
(B) Any territory, incorporated or unincorporated, included in an urbanized
area, as defined by the Bureau of the Census as of August 10, 1993;
(ii) Provides telephone exchange service, including exchange access, to
fewer than 50,000 access lines;
(iii) Provides telephone exchange service to any local exchange carrier
study area with fewer than 100,000 access lines; or
(iv) Has less than 15 percent of its access lines in communities of more
than 50,000 on the date of enactment of the Telecommunications Act of 1996.
(5) Affiliate. (i) An individual or entity is an affiliate of an applicant
or of a person holding an attributable interest in an applicant if such
individual or entity—
(A) Directly or indirectly controls or has the power to control the
applicant, or
(B) Is directly or indirectly controlled by the applicant, or
(C) Is directly or indirectly controlled by a third party or parties that
also controls or has the power to control the applicant, or
(D) Has an “identity of interest” with the applicant.
(ii) Nature of control in determining affiliation.
(A) Every business concern is considered to have one or more parties who
directly or indirectly control or have the power to control it. Control may
be affirmative or negative and it is immaterial whether it is exercised so
long as the power to control exists.
Example. An applicant owning 50 percent of the voting stock of another
concern would have negative power to control such concern since such party
can block any action of the other stockholders. Also, the bylaws of a
corporation may permit a stockholder with less than 50 percent of the voting
stock to block any actions taken by the other stockholders in the other
entity. Affiliation exists when the applicant has the power to control a
concern while at the same time another person, or persons, are in control of
the concern at the will of the party or parties with the power to control.
(B) Control can arise through stock ownership; occupancy of director,
officer or key employee positions; contractual or other business relations;
or combinations of these and other factors. A key employee is an employee
who, because of his/her position in the concern, has a critical influence in
or substantive control over the operations or management of the concern.
(C) Control can arise through management positions where a concern's voting
stock is so widely distributed that no effective control can be established.
Example. In a corporation where the officers and directors own various
size blocks of stock totaling 40 percent of the corporation's voting stock,
but no officer or director has a block sufficient to give him or her control
or the power to control and the remaining 60 percent is widely distributed
with no individual stockholder having a stock interest greater than 10
percent, management has the power to control. If persons with such
management control of the other entity are persons with attributable
interests in the applicant, the other entity will be deemed an affiliate of
the applicant.
(iii) Identity of interest between and among persons. Affiliation can arise
between or among two or more persons with an identity of interest, such as
members of the same family or persons with common investments. In
determining if the applicant controls or has the power to control a concern,
persons with an identity of interest will be treated as though they were one
person.
Example. Two shareholders in Corporation Y each have attributable
interests in the same PCS application. While neither shareholder has enough
shares to individually control Corporation Y, together they have the power
to control Corporation Y. The two shareholders with these common investments
(or identity in interest) are treated as though they are one person and
Corporation Y would be deemed an affiliate of the applicant.
(A) Spousal affiliation. Both spouses are deemed to own or control or have
the power to control interests owned or controlled by either of them, unless
they are subject to a legal separation recognized by a court of competent
jurisdiction in the United States. In calculating their net worth, investors
who are legally separated must include their share of interests in property
held jointly with a spouse.
(B) Kinship affiliation. Immediate family members will be presumed to own or
control or have the power to control interests owned or controlled by other
immediate family members. In this context “immediate family member” means
father, mother, husband, wife, son, daughter, brother, sister, father- or
mother-in-law, son- or daughter-in-law, brother- or sister-in-law,
step-father or -mother, step-brother or -sister, step-son or -daughter, half
brother or sister. This presumption may be rebutted by showing that the
family members are estranged, the family ties are remote, or the family
members are not closely involved with each other in business matters.
Example. A owns a controlling interest in Corporation X. A's
sister-in-law, B, has an attributable interest in a PCS application. Because
A and B have a presumptive kinship affiliation, A's interest in Corporation
Y is attributable to B, and thus to the applicant, unless B rebuts the
presumption with the necessary showing.
(iv) Affiliation through stock ownership. (A) An applicant is presumed to
control or have the power to control a concern if he or she owns or controls
or has the power to control 50 percent or more of its voting stock.
(B) An applicant is presumed to control or have the power to control a
concern even though he or she owns, controls or has the power to control
less than 50 percent of the concern's voting stock, if the block of stock he
or she owns, controls or has the power to control is large as compared with
any other outstanding block of stock.
(C) If two or more persons each owns, controls or has the power to control
less than 50 percent of the voting stock of a concern, such minority
holdings are equal or approximately equal in size, and the aggregate of
these minority holdings is large as compared with any other stock holding,
the presumption arises that each one of these persons individually controls
or has the power to control the concern; however, such presumption may be
rebutted by a showing that such control or power to control, in fact, does
not exist.
(v) Affiliation arising under stock options, convertible debentures, and
agreements to merge. Except as set forth in paragraph (c)(2)(ii)(A)( 2 ) of
this section, stock options, convertible debentures, and agreements to merge
(including agreements in principle) are generally considered to have a
present effect on the power to control the concern. Therefore, in making a
size determination, such options, debentures, and agreements are generally
treated as though the rights held thereunder had been exercised. However, an
affiliate cannot use such options and debentures to appear to terminate its
control over another concern before it actually does so.
Example 1 to paragraph (c)(5)(v). If company B holds an option to purchase
a controlling interest in company A, who holds an attributable interest in a
PCS application, the situation is treated as though company B had exercised
its rights and had become owner of a controlling interest in company A. The
gross revenues of company B must be taken into account in determining the
size of the applicant.
Example 2. If a large company, BigCo, holds 70% (70 of 100 outstanding
shares) of the voting stock of company A, who holds an attributable interest
in a PCS application, and gives a third party, SmallCo, an option to
purchase 50 of the 70 shares owned by BigCo, BigCo will be deemed to be an
affiliate of company A, and thus the applicant, until SmallCo actually
exercises its option to purchase such shares. In order to prevent BigCo from
circumventing the intent of the rule which requires such options to be
considered on a fully diluted basis, the option is not considered to have
present effect in this case.
Example 3. If company A has entered into an agreement to merge with
company B in the future, the situation is treated as though the merger has
taken place.
Note to paragraph(c)(5)(v): Mutually exclusive contingent ownership
interests, i.e., one or more ownership interests that, by their terms, are
mutually exclusive of one or more other ownership interests, shall be
calculated as having been fully exercised only in the possible combinations
in which they can be exercised by their holder(s). A contingent ownership
interest is mutually exclusive of another only if contractual language
specifies that both interests cannot be held simultaneously as present
ownership interests.
(vi) Affiliation under voting trusts. (A) Stock interests held in trust
shall be deemed controlled by any person who holds or shares the power to
vote such stock, to any person who has the sole power to sell such stock,
and to any person who has the right to revoke the trust at will or to
replace the trustee at will.
(B) If a trustee has a familial, personal or extra-trust business
relationship to the grantor or the beneficiary, the stock interests held in
trust will be deemed controlled by the grantor or beneficiary, as
appropriate.
(C) If the primary purpose of a voting trust, or similar agreement, is to
separate voting power from beneficial ownership of voting stock for the
purpose of shifting control of or the power to control a concern in order
that such concern or another concern may meet the Commission's size
standards, such voting trust shall not be considered valid for this purpose
regardless of whether it is or is not recognized within the appropriate
jurisdiction.
(vii) Affiliation through common management. Affiliation generally arises
where officers, directors, or key employees serve as the majority or
otherwise as the controlling element of the board of directors and/or the
management of another entity.
(viii) Affiliation through common facilities. Affiliation generally arises
where one concern shares office space and/or employees and/or other
facilities with another concern, particularly where such concerns are in the
same or related industry or field of operations, or where such concerns were
formerly affiliated, and through these sharing arrangements one concern has
control, or potential control, of the other concern.
(ix) Affiliation through contractual relationships. Affiliation generally
arises where one concern is dependent upon another concern for contracts and
business to such a degree that one concern has control, or potential
control, of the other concern.
(x) Affiliation under joint venture arrangements. (A) A joint venture for
size determination purposes is an association of concerns and/or
individuals, with interests in any degree or proportion, formed by contract,
express or implied, to engage in and carry out a single, specific business
venture for joint profit for which purpose they combine their efforts,
property, money, skill and knowledge, but not on a continuing or permanent
basis for conducting business generally. The determination whether an entity
is a joint venture is based upon the facts of the business operation,
regardless of how the business operation may be designated by the parties
involved. An agreement to share profits/losses proportionate to each party's
contribution to the business operation is a significant factor in
determining whether the business operation is a joint venture.
(B) The parties to a joint venture are considered to be affiliated with each
other. Nothing in this subsection shall be construed to define a small
business consortium, for purposes of determining status as a designated
entity, as a joint venture under attribution standards provided in this
section.
(xi) Exclusion from affiliation coverage. For purposes of this section,
Indian tribes or Alaska Regional or Village Corporations organized pursuant
to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq. ), or
entities owned and controlled by such tribes or corporations, are not
considered affiliates of an applicant (or licensee) that is owned and
controlled by such tribes, corporations or entities, and that otherwise
complies with the requirements of this section, except that gross revenues
derived from gaming activities conducted by affiliate entities pursuant to
the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq. ) will be counted
in determining such applicant's (or licensee's) compliance with the
financial requirements of this section, unless such applicant establishes
that it will not receive a substantial unfair competitive advantage because
significant legal constraints restrict the applicant's ability to access
such gross revenues.
(6) Consortium. A consortium of small businesses, very small businesses, or
entrepreneurs is a conglomerate organization composed of two or more
entities, each of which individually satisfies the definition of a small
business, very small business, or entrepreneur, as those terms are defined
in the service-specific rules. Each individual member must constitute a
separate and distinct legal entity to qualify.
(d) The Commission may set aside specific licenses for which only eligible
designated entities, as specified by the Commission, may bid.
(e) The Commission may permit partitioning of service areas in particular
services for eligible designated entities.
(f) Bidding credits. (1) The Commission may award bidding credits ( i.e.,
payment discounts) to eligible designated entities. Competitive bidding
rules applicable to individual services will specify the designated entities
eligible for bidding credits, the licenses for which bidding credits are
available, the amounts of bidding credits and other procedures.
(2) Size of bidding credits . A winning bidder that qualifies as a small
business may use the following bidding credits corresponding to its
respective average gross revenues for the preceding 3 years:
(i) Businesses with average gross revenues for the preceding years, 3 years
not exceeding $3 million are eligible for bidding credits of 35 percent;
(ii) Businesses with average gross revenues for the preceding years, 3 years
not exceeding $15 million are eligible for bidding credits of 25 percent;
and
(iii) Businesses with average gross revenues for the preceding years, 3
years not exceeding $40 million are eligible for bidding credits of 15
percent.
(3) Bidding credit for serving qualifying tribal land. A winning bidder for
a market will be eligible to receive a bidding credit for serving a
qualifying tribal land within that market, provided that it complies with
§1.2107(e). The following definition, terms, and conditions shall apply for
the purposes of this section and §1.2107(e):
(i) Qualifying tribal land means any federally recognized Indian tribe's
reservation, Pueblo, or Colony, including former reservations in Oklahoma,
Alaska Native regions established pursuant to the Alaska Native Claims
Settlement Act (85 Stat. 688), and Indian allotments, that has a wireline
telephone subscription rate equal to or less than eighty-five (85) percent
based on the most recently available U.S. Census Data.
(ii) Certification. (A) Within 180 days after the filing deadline for
long-form applications, the winning bidder must amend its long-form
application and attach a certification from the tribal government stating
the following:
( 1 ) The tribal government authorizes the winning bidder to site facilities
and provide service on its tribal land;
( 2 ) The tribal area to be served by the winning bidder constitutes
qualifying tribal land; and
( 3 ) The tribal government has not and will not enter into an exclusive
contract with the applicant precluding entry by other carriers, and will not
unreasonably discriminate among wireless carriers seeking to provide service
on the qualifying tribal land.
(B) In addition, within 180 days after the filing deadline for long-form
applications, the winning bidder must amend its long-form application and
file a certification that it will comply with the construction requirements
set forth in paragraph (f)(3)(vii) of this section and consult with the
tribal government regarding the siting of facilities and deployment of
service on the tribal land.
(C) If the winning bidder fails to submit the required certifications within
the 180-day period, the bidding credit will not be awarded, and the winning
bidder must pay any outstanding balance on its winning bid amount.
(iii) Bidding credit formula. Subject to the applicable bidding credit limit
set forth in §1.2110(f)(3)(iv), the bidding credit shall equal five hundred
thousand (500,000) dollars for the first two hundred (200) square miles (518
square kilometers) of qualifying tribal land, and twenty-five hundred (2500)
dollars for each additional square mile (2.590 square kilometers) of
qualifying tribal land above two hundred (200) square miles (518 square
kilometers).
(iv) Bidding credit limit. If the high bid is equal to or less than one
million (1,000,000) dollars, the maximum bidding credit calculated pursuant
to §1.2110(f)(3)(iii) shall not exceed fifty (50) percent of the high bid.
If the high bid is greater than one million (1,000,000) dollars, but equal
to or less than two million (2,000,000) dollars, the maximum bidding credit
calculated pursuant to §1.2110(f)(3)(iii) shall not exceed five hundred
thousand (500,000) dollars. If the high bid is greater than two million
(2,000,000) dollars, the maximum bidding credit calculated pursuant to
§1.2110(f)(3)(iii) shall not exceed thirty-five (35) percent of the high
bid.
(v) Bidding credit limit in auctions subject to specified reserve price(s) .
In any auction of eligible frequencies described in section 113(g)(2) of the
National Telecommunications and Information Administration Organization Act
(47 U.S.C. 923(g)(2) with reserve price(s) and in any auction with reserve
price(s) in which the Commission specifies that this provision shall apply,
the aggregate amount available to be awarded as bidding credits for serving
qualifying tribal land with respect to all licenses subject to a reserve
price shall not exceed the amount by which winning bids for those licenses
net of discounts the Commission takes into account when reporting net bids
in the Public Notice closing the auction exceed the applicable reserve
price. If the total amount that might be awarded as tribal land bidding
credits based on applications for all licenses subject to the reserve price
exceeds the aggregate amount available to be awarded, the Commission will
award eligible applicants a pro rata tribal land bidding credit. The
Commission may determine at any time that the total amount that might be
awarded as tribal land bidding credits is less than the aggregate amount
available to be awarded and grant full tribal land bidding credits to
relevant applicants, including any that previously received pro rata tribal
land bidding credits. To determine the amount of an applicant's pro rata
tribal land bidding credit, the Commission will multiply the full amount of
the tribal land bidding credit for which the applicant would be eligible
excepting this limitation ((f)(3)(v)) of this section by a fraction,
consisting of a numerator in the amount by which winning bids for licenses
subject to the reserve price net of discounts the Commission takes into
account when reporting net bids in the Public Notice closing the auction
exceed the reserve price and a denominator in the amount of the aggregate
maximum tribal land bidding credits for which applicants for such licenses
might have qualified excepting this limitation ((f)(3)(v)) of this section.
When determining the aggregate maximum tribal land bidding credits for which
applicants for such licenses might have qualified, the Commission shall
assume that any applicant seeking a tribal land bidding credit on its
long-form application will be eligible for the largest tribal land bidding
credit possible for its bid for its license excepting this limitation
((f)(3)(v)) of this section. After all applications seeking a tribal land
bidding credit with respect to licenses covered by a reserve price have been
finally resolved, the Commission will recalculate the pro rata credit. For
these purposes, final determination of a credit occurs only after any review
or reconsideration of the award of such credit has been concluded and no
opportunity remains for further review or reconsideration. To recalculate an
applicant's pro rata tribal land bidding credit, the Commission will
multiply the full amount of the tribal land bidding credit for which the
applicant would be eligible excepting this limitation ((f)(3)(v)) of this
section by a fraction, consisting of a numerator in the amount by which
winning bids for licenses subject to the reserve price net of discounts the
Commission takes into account when reporting net bids in the Public Notice
closing the auction exceed the reserve price and a denominator in the amount
of the aggregate amount of tribal land bidding credits for which all
applicants for such licenses would have qualified excepting this limitation
((f)(3)(v)) of this section.
(vi) Application of credit . A pending request for a bidding credit for
serving qualifying tribal land has no effect on a bidder's obligations to
make any auction payments, including down and final payments on winning
bids, prior to award of the bidding credit by the Commission. Tribal land
bidding credits will be calculated and awarded prior to license grant. If
the Commission grants an applicant a pro rata tribal land bidding credit
prior to license grant, as provided by paragraph (f)(3)(v) of this section,
the Commission shall recalculate the applicant's pro rata tribal land
bidding credit after all applications seeking tribal land biddings for
licenses subject to the same reserve price have been finally resolved. If a
recalculated tribal land bidding credit is larger than the previously
awarded pro rata tribal land bidding credit, the Commission will award the
difference.
(vii) Post-construction certification. Within fifteen (15) days of the third
anniversary of the initial grant of its license, a recipient of a bidding
credit under this section shall file a certification that the recipient has
constructed and is operating a system capable of serving seventy-five (75)
percent of the population of the qualifying tribal land for which the credit
was awarded. The recipient must provide the total population of the tribal
area covered by its license as well as the number of persons that it is
serving in the tribal area.
(viii) Performance penalties . If a recipient of a bidding credit under this
section fails to provide the post-construction certification required by
paragraph (f)(3)(vii) of this section, then it shall repay the bidding
credit amount in its entirety, plus interest. The interest will be based on
the rate for ten-year U.S. Treasury obligations applicable on the date the
license is granted. Such payment shall be made within thirty (30) days of
the third anniversary of the initial grant of its license. Failure to repay
the bidding credit amount and interest within the required time period will
result in automatic termination of the license without specific Commission
action. Repayment of bidding credit amounts pursuant to this provision shall
not affect the calculation of amounts available to be awarded as tribal land
bidding credits pursuant to (f)(3)(v) of this section.
(g) Installment payments. The Commission may permit small businesses
(including small businesses owned by women, minorities, or rural telephone
companies that qualify as small businesses) and other entities determined to
be eligible on a service-specific basis, which are high bidders for licenses
specified by the Commission, to pay the full amount of their high bids in
installments over the term of their licenses pursuant to the following:
(1) Unless otherwise specified by public notice, each eligible applicant
paying for its license(s) on an installment basis must deposit by wire
transfer in the manner specified in §1.2107(b) sufficient additional funds
as are necessary to bring its total deposits to ten (10) percent of its
winning bid(s) within ten (10) days after the Commission has declared it the
winning bidder and closed the bidding. Failure to remit the required payment
will make the bidder liable to pay a default payment pursuant to
§1.2104(g)(2).
(2) Within ten (10) days of the conditional grant of the license application
of a winning bidder eligible for installment payments, the licensee shall
pay another ten (10) percent of the high bid, thereby commencing the
eligible licensee's installment payment plan. If a winning bidder eligible
for installment payments fails to submit this additional ten (10) percent of
its high bid by the applicable deadline as specified by the Commission, it
will be allowed to make payment within ten (10) business days after the
payment deadline, provided that it also pays a late fee equal to five
percent of the amount due. When a winning bidder eligible for installment
payments fails to submit this additional ten (10) percent of its winning
bid, plus the late fee, by the late payment deadline, it is considered to be
in default on its license(s) and subject to the applicable default payments.
Licenses will be awarded upon the full and timely payment of second down
payments and any applicable late fees.
(3) Upon grant of the license, the Commission will notify each eligible
licensee of the terms of its installment payment plan and that it must
execute a promissory note and security agreement as a condition of the
installment payment plan. Unless other terms are specified in the rules of
particular services, such plans will:
(i) Impose interest based on the rate of U.S. Treasury obligations (with
maturities closest to the duration of the license term) at the time of
licensing;
(ii) Allow installment payments for the full license term;
(iii) Begin with interest-only payments for the first two years; and
(iv) Amortize principal and interest over the remaining term of the license.
(4) A license granted to an eligible entity that elects installment payments
shall be conditioned upon the full and timely performance of the licensee's
payment obligations under the installment plan.
(i) Any licensee that fails to submit its quarterly payment on an
installment payment obligation (the “Required Installment Payment”) may
submit such payment on or before the last day of the next quarter (the
“first additional quarter”) without being considered delinquent. Any
licensee making its Required Installment Payment during this period (the
“first additional quarter grace period”) will be assessed a late payment fee
equal to five percent (5%) of the amount of the past due Required
Installment Payment. The late payment fee applies to the total Required
Installment Payment regardless of whether the licensee submitted a portion
of its Required Installment Payment in a timely manner.
(ii) If any licensee fails to make the Required Installment Payment on or
before the last day of the first additional quarter set forth in paragraph
(g)(4)(i) of this section, the licensee may submit its Required Installment
Payment on or before the last day of the next quarter (the “second
additional quarter”), except that no such additional time will be provided
for the July 31, 1998 suspension interest and installment payments from C or
F block licensees that are not made within 90 days of the payment resumption
date for those licensees, as explained in Amendment of the Commission's
Rules Regarding Installment Payment Financing for Personal Communications
Services (PCS) Licensees, Order on Reconsideration of the Second Report and
Order, WT Docket No. 97–82, 13 FCC Rcd 8345 (1998). Any licensee making the
Required Installment Payment during the second additional quarter (the
“second additional quarter grace period”) will be assessed a late payment
fee equal to ten percent (10%) of the amount of the past due Required
Installment Payment. Licensees shall not be required to submit any form of
request in order to take advantage of the first and second additional
quarter grace periods.
(iii) All licensees that avail themselves of these grace periods must pay
the associated late payment fee(s) and the Required Installment Payment
prior to the conclusion of the applicable additional quarter grace
period(s). Payments made at the close of any grace period(s) will first be
applied to satisfy any lender advances as required under each licensee's
“Note and Security Agreement,” with the remainder of such payments applied
in the following order: late payment fees, interest charges, installment
payments for the most back-due quarterly installment payment.
(iv) If an eligible entity obligated to make installment payments fails to
pay the total Required Installment Payment, interest and any late payment
fees associated with the Required Installment Payment within two quarters (6
months) of the Required Installment Payment due date, it shall be in
default, its license shall automatically cancel, and it will be subject to
debt collection procedures. A licensee in the PCS C or F blocks shall be in
default, its license shall automatically cancel, and it will be subject to
debt collection procedures, if the payment due on the payment resumption
date, referenced in paragraph (g)(4)(ii) of this section, is more than
ninety (90) days delinquent.
(h) The Commission may establish different upfront payment requirements for
categories of designated entities in competitive bidding rules of particular
auctionable services.
(i) The Commission may offer designated entities a combination of the
available preferences or additional preferences.
(j) Designated entities must describe on their long-form applications how
they satisfy the requirements for eligibility for designated entity status,
and must list and summarize on their long-form applications all agreements
that affect designated entity status such as partnership agreements,
shareholder agreements, management agreements, spectrum leasing
arrangements, spectrum resale (including wholesale) arrangements, and all
other agreements, including oral agreements, establishing, as applicable, de
facto or de jure control of the entity or the presence or absence of
impermissible and attributable material relationships. Designated entities
also must provide the date(s) on which they entered into each of the
agreements listed. In addition, designated entities must file with their
long-form applications a copy of each such agreement. In order to enable the
Commission to audit designated entity eligibility on an ongoing basis,
designated entities that are awarded eligibility must, for the term of the
license, maintain at their facilities or with their designated agents the
lists, summaries, dates, and copies of agreements required to be identified
and provided to the Commission pursuant to this paragraph and to §1.2114.
(k) The Commission may, on a service-specific basis, permit consortia, each
member of which individually meets the eligibility requirements, to qualify
for any designated entity provisions.
(l) The Commission may, on a service-specific basis, permit publicly-traded
companies that are owned by members of minority groups or women to qualify
for any designated entity provisions.
(m) Audits. (1) Applicants and licensees claiming eligibility shall be
subject to audits by the Commission, using in-house and contract resources.
Selection for audit may be random, on information, or on the basis of other
factors.
(2) Consent to such audits is part of the certification included in the
short-form application (FCC Form 175). Such consent shall include consent to
the audit of the applicant's or licensee's books, documents and other
material (including accounting procedures and practices) regardless of form
or type, sufficient to confirm that such applicant's or licensee's
representations are, and remain, accurate. Such consent shall include
inspection at all reasonable times of the facilities, or parts thereof,
engaged in providing and transacting business, or keeping records regarding
FCC-licensed service and shall also include consent to the interview of
principals, employees, customers and suppliers of the applicant or licensee.
(n) Annual reports . Each designated entity licensee must file with the
Commission an annual report within five business days before the anniversary
date of the designated entity's license grant. The annual report shall
include, at a minimum, a list and summaries of all agreements and
arrangements (including proposed agreements and arrangements) that relate to
eligibility for designated entity benefits. In addition to a summary of each
agreement or arrangement, this list must include the parties (including
affiliates, controlling interests, and affiliates of controlling interests)
to each agreement or arrangement, as well as the dates on which the parties
entered into each agreement or arrangement. Annual reports will be filed no
later than, and up to five business days before, the anniversary of the
designated entity's license grant.
(o) Gross revenues. Gross revenues shall mean all income received by an
entity, whether earned or passive, before any deductions are made for costs
of doing business (e.g., cost of goods sold), as evidenced by audited
financial statements for the relevant number of most recently completed
calendar years or, if audited financial statements were not prepared on a
calendar-year basis, for the most recently completed fiscal years preceding
the filing of the applicant's short-form (FCC Form 175). If an entity was
not in existence for all or part of the relevant period, gross revenues
shall be evidenced by the audited financial statements of the entity's
predecessor-in-interest or, if there is no identifiable
predecessor-in-interest, unaudited financial statements certified by the
applicant as accurate. When an applicant does not otherwise use audited
financial statements, its gross revenues may be certified by its chief
financial officer or its equivalent and must be prepared in accordance with
Generally Accepted Accounting Principles.
(p) Total assets. Total assets shall mean the book value (except where
generally accepted accounting principles (GAAP) require market valuation) of
all property owned by an entity, whether real or personal, tangible or
intangible, as evidenced by the most recently audited financial statements
or certified by the applicant's chief financial offer or its equivalent if
the applicant does not otherwise use audited financial statements.
[ 63 FR 2343 , Jan. 15, 1998; 63 FR 12659 , Mar. 16, 1998, as amended at 63 FR 17122 , Apr. 8, 1998; 65 FR 47355 , Aug. 2, 2000; 65 FR 52345 , Aug. 29, 2000;
65 FR 68924 , Nov. 15, 2000; 67 FR 16650 , Apr. 8, 2002; 67 FR 45365 , July 9,
2002; 68 FR 23422 , May 2, 2003; 68 FR 42996 , July 21, 2003; 69 FR 61321 ,
Oct. 18, 2004; 70 FR 57187 , Sept. 30, 2005; 71 FR 6227 , Feb. 7, 2006; 71 FR 26251 , May 4, 2006]
§ 1.2111 Assignment or transfer of control: unjust enrichment.
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(a) Reporting requirement. An applicant seeking approval for a transfer of
control or assignment (otherwise permitted under the Commission's rules) of
a license within three years of receiving a new license through a
competitive bidding procedure must, together with its application for
transfer of control or assignment, file with the Commission a statement
indicating that its license was obtained through competitive bidding. Such
applicant must also file with the Commission the associated contracts for
sale, option agreements, management agreements, or other documents
disclosing the local consideration that the applicant would receive in
return for the transfer or assignment of its license (see §1.948). This
information should include not only a monetary purchase price, but also any
future, contingent, in-kind, or other consideration ( e.g. , management or
consulting contracts either with or without an option to purchase; below
market financing).
(b) Unjust enrichment payment: set-aside. As specified in this paragraph an
applicant seeking approval for a transfer of control or assignment
(otherwise permitted under the Commission's rules) of, or for entry into a
material relationship (see §§1.2110, 1.2114) (otherwise permitted under the
Commission's rules) involving, a license acquired by the applicant pursuant
to a set-aside for eligible designated entities under §1.2110(c), or which
proposes to take any other action relating to ownership or control that will
result in loss of eligibility as a designated entity, must seek Commission
approval and may be required to make an unjust enrichment payment (Payment)
to the Commission by cashier's check or wire transfer before consent will be
granted. The Payment will be based upon a schedule that will take account of
the term of the license, any applicable construction benchmarks, and the
estimated value of the set-aside benefit, which will be calculated as the
difference between the amount paid by the designated entity for the license
and the value of comparable non-set-aside license in the free market at the
time of the auction. The Commission will establish the amount of the Payment
and the burden will be on the applicants to disprove this amount. No Payment
will be required if:
(1) The license is transferred or assigned more than five years after its
initial issuance, unless otherwise specified; or
(2) The proposed transferee or assignee is an eligible designated entity
under §1.2110(c) or the service-specific competitive bidding rules of the
particular service, and so certifies.
(c) Unjust enrichment payment: installment financing. (1) If a licensee that
utilizes installment financing under this section seeks to assign or
transfer control of its license to an entity not meeting the eligibility
standards for installment payments, the licensee must make full payment of
the remaining unpaid principal and any unpaid interest accrued through the
date of assignment or transfer as a condition of approval.
(2) If a licensee that utilizes installment financing under this section
seeks to make any change in ownership structure or to enter into a material
relationship (see §1.2110) that would result in the licensee losing
eligibility for installment payments, the licensee shall first seek
Commission approval and must make full payment of the remaining unpaid
principal and any unpaid interest accrued through the date of such change as
a condition of approval. A licensee's (or other attributable entity's)
increased gross revenues or increased total assets due to nonattributable
equity investments, debt financing, revenue from operations or other
investments, business development or expanded service shall not be
considered to result in the licensee losing eligibility for installment
payments.
(3) If a licensee seeks to make any change in ownership or to enter into a
material relationship (see §1.2110) that would result in the licensee
qualifying for a less favorable installment plan under this section, the
licensee shall seek Commission approval and must adjust its payment plan to
reflect its new eligibility status. A licensee may not switch its payment
plan to a more favorable plan.
(d) Unjust enrichment payment: bidding credits. (1) A licensee that utilizes
a bidding credit, and that during the initial term seeks to assign or
transfer control of a license to an entity that does not meet the
eligibility criteria for a bidding credit, will be required to reimburse the
U.S. Government for the amount of the bidding credit, plus interest based on
the rate for ten year U.S. Treasury obligations applicable on the date the
license was granted, as a condition of Commission approval of the assignment
or transfer. If, within the initial term of the license, a licensee that
utilizes a bidding credit seeks to assign or transfer control of a license
to an entity that is eligible for a lower bidding credit, the difference
between the bidding credit obtained by the assigning party and the bidding
credit for which the acquiring party would qualify, plus interest based on
the rate for ten year U.S. treasury obligations applicable on the date the
license is granted, must be paid to the U.S. Government as a condition of
Commission approval of the assignment or transfer. If, within the initial
term of the license, a licensee that utilizes a bidding credit seeks to make
any ownership change or to enter into a material relationship (see §1.2110)
that would result in the licensee losing eligibility for a bidding credit
(or qualifying for a lower bidding credit), the amount of the bidding credit
(or the difference between the bidding credit originally obtained and the
bidding credit for which the licensee would qualify after restructuring or
entry into a material relationship), plus interest based on the rate for ten
year U.S. treasury obligations applicable on the date the license is
granted, must be paid to the U.S. Government as a condition of Commission
approval of the assignment or transfer or of a reportable eligibility event
(see §1.2114).
(2) Payment schedule . (i) For licenses initially granted after April 25,
2006, the amount of payments made pursuant to paragraph (d)(1) of this
section will be 100 percent of the value of the bidding credit prior to the
filing of the notification informing the Commission that the construction
requirements applicable at the end of the initial license term have been
met. If the notification informing the Commission that the construction
requirements applicable at the end of the initial license term have been
met, the amount of the payments will be reduced over time as follows:
(A) A loss of eligibility in the first five years of the license term will
result in a forfeiture of 100 percent of the value of the bidding credit (or
in the case of eligibility changing to qualify for a lower bidding credit,
100 percent of the difference between the bidding credit received and the
bidding credit for which it is eligible);
(B) A loss of eligibility in years 6 and 7 of the license term will result
in a forfeiture of 75 percent of the value of the bidding credit (or in the
case of eligibility changing to qualify for a lower bidding credit, 75
percent of the difference between the bidding credit received and the
bidding credit for which it is eligible);
(C) A loss of eligibility in years 8 and 9 of the license term will result
in a forfeiture of 50 percent of the value of the bidding credit (or in the
case of eligibility changing to qualify for a lower bidding credit, 50
percent of the difference between the bidding credit received and the
bidding credit for which it is eligible); and
(D) A loss of eligibility in year 10 of the license term will result in a
forfeiture of 25 percent of the value of the bidding credit (or in the case
of eligibility changing to qualify for a lower bidding credit, 25 percent of
the difference between the bidding credit received and the bidding credit
for which it is eligible).
(ii) For licenses initially granted before April 25, 2006, the amount of
payments made pursuant to paragraph (d)(1) of this section will be reduced
over time as follows:
(A) A transfer in the first two years of the license term will result in a
forfeiture of 100 percent of the value of the bidding credit (or in the case
of very small businesses transferring to small businesses, 100 percent of
the difference between the bidding credit received by the former and the
bidding credit for which the latter is eligible);
(B) A transfer in year 3 of the license term will result in a forfeiture of
75 percent of the value of the bidding credit;
(C) A transfer in year 4 of the license term will result in a forfeiture of
50 percent of the value of the bidding credit;
(D) A transfer in year 5 of the license term will result in a forfeiture of
25 percent of the value of the bidding credit; and
(E) For a transfer in year 6 or thereafter, there will be no payment.
(iii) These payments will have to be paid to the United States Treasury as a
condition of approval of the assignment, transfer, ownership change, or
reportable eligibility event (see §1.2114).
(e) Unjust enrichment: partitioning and disaggregation —(1) Installment
payments. Licensees making installment payments, that partition their
licenses or disaggregate their spectrum to entities not meeting the
eligibility standards for installment payments, will be subject to the
provisions concerning unjust enrichment as set forth in this section.
(2) Bidding credits. Licensees that received a bidding credit that partition
their licenses or disaggregate their spectrum to entities not meeting the
eligibility standards for such a bidding credit, will be subject to the
provisions concerning unjust enrichment as set forth in this section.
(3) Apportioning unjust enrichment payments. Unjust enrichment payments for
partitioned license areas shall be calculated based upon the ratio of the
population of the partitioned license area to the overall population of the
license area and by utilizing the most recent census data. Unjust enrichment
payments for disaggregated spectrum shall be calculated based upon the ratio
of the amount of spectrum disaggregated to the amount of spectrum held by
the licensee.
[ 59 FR 44293 , Aug. 26, 1994, as amended at 63 FR 2346 , Jan. 15, 1998; 63 FR 68942 , Dec. 14, 1998; 71 FR 26252 , May 4, 2006; 71 FR 34278 , June 14, 2006]
§ 1.2112 Ownership disclosure requirements for applications.
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(a) Each application to participate in competitive bidding ( i.e.,
short-form application ( see 47 CFR 1.2105)), or for a license,
authorization, assignment, or transfer of control shall fully disclose the
following:
(1) List the real party or parties in interest in the applicant or
application, including a complete disclosure of the identity and
relationship of those persons or entities directly or indirectly owning or
controlling (or both) the applicant;
(2) List the name, address, and citizenship of any party holding 10 percent
or more of stock in the applicant, whether voting or nonvoting, common or
preferred, including the specific amount of the interest or percentage held;
(3) List, in the case of a limited partnership, the name, address and
citizenship of each limited partner whose interest in the applicant is 10
percent or greater (as calculated according to the percentage of equity paid
in or the percentage of distribution of profits and losses);
(4) List, in the case of a general partnership, the name, address and
citizenship of each partner, and the share or interest participation in the
partnership;
(5) List, in the case of a limited liability company, the name, address, and
citizenship of each of its members whose interest in the applicant is 10
percent or greater;
(6) List all parties holding indirect ownership interests in the applicant
as determined by successive multiplication of the ownership percentages for
each link in the vertical ownership chain, that equals 10 percent or more of
the applicant, except that if the ownership percentage for an interest in
any link in the chain exceeds 50 percent or represents actual control, it
shall be treated and reported as if it were a 100 percent interest; and
(7) List any FCC-regulated entity or applicant for an FCC license, in which
the applicant or any of the parties identified in paragraphs (a)(1) through
(a)(5) of this section, owns 10 percent or more of stock, whether voting or
nonvoting, common or preferred. This list must include a description of each
such entity's principal business and a description of each such entity's
relationship to the applicant ( e.g., Company A owns 10 percent of Company B
(the applicant) and 10 percent of Company C, then Companies A and C must be
listed on Company B's application, where C is an FCC licensee and/or license
applicant).
(b) Designated entity status. In addition to the information required under
paragraph (a) of this section, each applicant claiming eligibility for small
business provisions shall disclose the following:
(1) On its application to participate in competitive bidding ( i.e.,
short-form application (see 47 CFR 1.2105)):
(i) List the names, addresses, and citizenship of all officers, directors,
affiliates, and other controlling interests of the applicant, as described
in §1.2110, and, if a consortium of small businesses or consortium of very
small businesses, the members of the conglomerate organization;
(ii) List any FCC-regulated entity or applicant for an FCC license, in which
any controlling interest of the applicant owns a 10 percent or greater
interest or a total of 10 percent or more of any class of stock, warrants,
options or debt securities. This list must include a description of each
such entity's principal business and a description of each such entity's
relationship to the applicant; and
(iii) List and summarize all agreements or instruments (with appropriate
references to specific provisions in the text of such agreements and
instruments) that support the applicant's eligibility as a small business
under the applicable designated entity provisions, including the
establishment of de facto or de jure control or the presence or absence of
impermissible and attributable material relationships. Such agreements and
instruments include articles of incorporation and bylaws, partnership
agreements, shareholder agreements, voting or other trust agreements,
management agreements, franchise agreements, spectrum leasing arrangements,
spectrum resale (including wholesale) arrangements, and any other relevant
agreements (including letters of intent), oral or written;
(iv) List separately and in the aggregate the gross revenues, computed in
accordance with §1.2110, for each of the following: The applicant, its
affiliates, its controlling interests, the affiliates of its controlling
interests, and the entities with which it has an attributable material
relationship; and if a consortium of small businesses, the members
comprising the consortium.
(2) As an exhibit to its application for a license, authorization,
assignment, or transfer of control:
(i) List the names, addresses, and citizenship of all officers, directors,
and other controlling interests of the applicant, as described in §1.2110;
(ii) List any FCC-regulated entity or applicant for an FCC license, in which
any controlling interest of the applicant owns a 10 percent or greater
interest or a total of 10 percent or more of any class of stock, warrants,
options or debt securities. This list must include a description of each
such entity's principal business and a description of each such entity's
relationship to the applicant;
(iii) List and summarize all agreements or instruments (with appropriate
references to specific provisions in the text of such agreements and
instruments) that support the applicant's eligibility as a small business
under the applicable designated entity provisions, including the
establishment of de facto or de jure control or the presence or absence of
impermissible and attributable material relationships. Such agreements and
instruments include articles of incorporation and bylaws, partnership
agreements, shareholder agreements, voting or other trust agreements,
management agreements, franchise agreements, spectrum leasing arrangements,
spectrum resale (including wholesale) arrangements, and any other relevant
agreements (including letters of intent), oral or written;
(iv) List and summarize any investor protection agreements, including rights
of first refusal, supermajority clauses, options, veto rights, and rights to
hire and fire employees and to appoint members to boards of directors or
management committees;
(v) List separately and in the aggregate the gross revenues, computed in
accordance with §1.2110, for each of the following: the applicant, its
affiliates, its controlling interests, affiliates of its controlling
interests, and parties with which it has attributable material
relationships; and if a consortium of small businesses, the members
comprising the consortium; and
(vi) List and summarize, if seeking the exemption for rural telephone
cooperatives pursuant to §1.2110, all documentation to establish eligibility
pursuant to the factors listed under §1.2110(b)(3)(iii)(A).
(vii) List and summarize any agreements in which the applicant has entered
into arrangements for the lease or resale (including wholesale agreements)
of any of the spectrum capacity of the license that is the subject of the
application.
[ 68 FR 42997 , July 21, 2003, as amended at 70 FR 57187 , Sept. 30, 2005; 71 FR 26253 , May 4, 2006]
§ 1.2113 Construction prior to grant of application.
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Subject to the provisions of this section, applicants for licenses awarded
by competitive bidding may construct facilities to provide service prior to
grant of their applications, but must not operate such facilities until the
FCC grants an authorization. If the conditions stated in this section are
not met, applicants must not begin to construct facilities for licenses
subject to competitive bidding.
(a) When applicants may begin construction. An applicant may begin
construction of a facility upon release of the Public Notice listing the
post-auction long-form application for that facility as acceptable for
filing.
(b) Notification to stop. If the FCC for any reason determines that
construction should not be started or should be stopped while an application
is pending, and so notifies the applicant, orally (followed by written
confirmation) or in writing, the applicant must not begin construction or,
if construction has begun, must stop construction immediately.
(c) Assumption of risk. Applicants that begin construction pursuant to this
section before receiving an authorization do so at their own risk and have
no recourse against the United States for any losses resulting from:
(1) Applications that are not granted;
(2) Errors or delays in issuing public notices;
(3) Having to alter, relocate or dismantle the facility; or
(4) Incurring whatever costs may be necessary to bring the facility into
compliance with applicable laws, or FCC rules and orders.
(d) Conditions. Except as indicated, all pre-grant construction is subject
to the following conditions:
(1) The application does not include a request for a waiver of one or more
FCC rules;
(2) For any construction or alteration that would exceed the requirements of
§17.7 of this chapter, the licensee has notified the appropriate Regional
Office of the Federal Aviation Administration (FAA Form 7460–1), filed a
request for antenna height clearance and obstruction marking and lighting
specifications (FCC Form 854) with the FCC, PRB, Support Services Branch,
Gettysburg, PA 17325;
(3) The applicant has indicated in the application that the proposed
facility would not have a significant environmental effect, in accordance
with §§1.1301 through 1.1319;
(4) Under applicable international agreements and rules in this part,
individual coordination of the proposed channel assignment(s) with a foreign
administration is not required; and
(5) Any service-specific restrictions not listed herein.
[ 63 FR 2348 , Jan. 15, 1998]
§ 1.2114 Reporting of eligibility event.
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(a) A designated entity must seek Commission approval for all reportable
eligibility events. A reportable eligibility event is:
(1) Any spectrum lease (as defined in §1.9003) or resale arrangement
(including wholesale agreements) with one entity or on a cumulative basis
that might cause a licensee to lose eligibility for installment payments, a
set-aside license, or a bidding credit (or for a particular level of bidding
credit) under §1.2110 and applicable service-specific rules.
(2) Any other event that would lead to a change in the eligibility of a
licensee for designated entity benefits.
(b) Documents listed on and filed with application . A designated entity
filing an application pursuant to this section must—
(1) List and summarize on the application all agreements and arrangements
(including proposed agreements and arrangements) that give rise to or
otherwise relate to a reportable eligibility event. In addition to a summary
of each agreement or arrangement, this list must include the parties
(including each party's affiliates, its controlling interests, the
affiliates of its controlling interests, its spectrum lessees, and its
spectrum resellers and wholesalers) to each agreement or arrangement, as
well as the dates on which the parties entered into each agreement or
arrangement.
(2) File with the application a copy of each agreement and arrangement
listed pursuant to this paragraph.
(3) Maintain at its facilities or with its designated agents, for the term
of the license, the lists, summaries, dates, and copies of agreements and
arrangements required to be provided to the Commission pursuant to this
section.
(c) Application fees . The application reporting the eligibility event will
be treated as a transfer of control for purposes of determining the
applicable application fees as set forth in §1.1102.
(d) Streamlined approval procedures. (1) The eligibility event application
will be placed on public notice once the application is sufficiently
complete and accepted for filing (see §1.933).
(2) Petitions to deny filed in accordance with section 309(d) of the
Communications Act must comply with the provisions of §1.939, except that
such petitions must be filed no later than 14 days following the date of the
Public Notice listing the application as accepted for filing.
(3) No later than 21 days following the date of the Public Notice listing an
application as accepted for filing, the Wireless Telecommunications Bureau
(Bureau) will grant the application, deny the application, or remove the
application from streamlined processing for further review.
(4) Grant of the application will be reflected in a Public Notice (see
§1.933(a)(2)) promptly issued after the grant.
(5) If the Bureau determines to remove an application from streamlined
processing, it will issue a Public Notice indicating that the application
has been removed from streamlined processing. Within 90 days of that Public
Notice, the Bureau will either take action upon the application or provide
public notice that an additional 90-day period for review is needed.
(e) Public notice of application. Applications under this subpart will be
placed on an informational public notice on a weekly basis (see §1.933(a)).
(f) Contents of the application. The application must contain all
information requested on the applicable form, any additional information and
certifications required by the rules in this chapter, and any rules
pertaining to the specific service for which the application is filed.
(g) The designated entity is required to update any change in a relationship
that gave rise to a reportable eligibility event.
[ 71 FR 26253 , May 4, 2006, as amended at 71 FR 34278 , June 14, 2006]
Subpart R—Implementation of Section 4(g)(3) of the Communications Act:
Procedures Governing Acceptance of Unconditional Gifts, Donations and Bequests
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Source: 59 FR 38128 , July 27, 1994, unless otherwise noted.
§ 1.3000 Purpose and scope.
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The purpose of this subpart is to implement the Telecommunications
Authorization Act of 1992 which amended the Communications Act by creating
section 4(g)(3), 47 U.S.C. 154(g)(3). The provisions of this subpart shall
apply to gifts, donations and bequests made to the Commission itself. Travel
reimbursement for attendance at, or participation in, government-sponsored
meetings or events required to carry out the Commission's statutory or
regulatory functions may also be accepted under this subpart. The acceptance
of gifts by Commission employees, most notably gifts of food, drink and
entertainment, is governed by the government-wide standards of employee
conduct established at 5 CFR part 2635. Travel, subsistence and related
expenses for non-government-sponsored meetings or events will continue to be
accepted pursuant to the Government Employees Training Act, 41 U.S.C. 4111
or 31 U.S.C. 1353, and its General Services Administration's implementing
regulations, 41 CFR 304–1.8, as applicable.
§ 1.3001 Definitions.
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For purposes of this subpart:
(a) The term agency means the Federal Communications Commission.
(b) The term gift means any unconditional gift, donation or bequest of real,
personal and other property (including voluntary and uncompensated services
as authorized under 5 U.S.C. 3109).
(c) The terms agency ethics official, designated agency ethics official,
employee, market value, person, and prohibited source, have the same meaning
as found in 5 CFR 2635.102, 2635.203.
§ 1.3002 Structural rules and prohibitions.
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(a) General prohibitions. An employee shall not:
(1) Directly or indirectly, solicit or coerce the offering of a gift,
donation or bequest to the Commission from a regulated entity or other
prohibited source; or
(2) Accept gifts of cash pursuant to this subpart.
(b) Referral of offers to designated agency ethics official. Any person who
seeks to offer any gift to the Commission under the provisions of this
subpart shall make such offer to the Commission's designated agency ethics
official. In addition, any Commission employee who is contacted by a
potential donor or the representative thereof for the purpose of discussing
the possibility of making a gift, donation or bequest to the Commission
shall immediately refer such person or persons to the Commission's
designated agency ethics official. The designated agency ethics official
shall, in consultation with other agency ethics officials, make a
determination concerning whether acceptance of such offers would create a
conflict of interest or the appearance of a conflict of interest. Agency
ethics officials may also advise potential donors and their representatives
of the types of equipment, property or services that may be of use to the
Commission and the procedures for effectuating gifts set forth in this
subpart. The Commission may, in its discretion, afford public notice before
accepting any gift under authority of this subpart.
§ 1.3003 Mandatory factors for evaluating conflicts of interest.
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No gift shall be accepted under this subpart unless a determination is made
that its acceptance would not create a conflict of interest or the
appearance of a conflict of interest. In making conflict of interest
determinations, designated agency ethics officials shall consider the
following factors:
(a) Whether the benefits of the intended gift will accrue to an individual
employee and, if so—
(1) Whether the employee is responsible for matters affecting the potential
donor that are currently before the agency; and
(2) The significance of the employee's role in any such matters;
(b) The nature and sensitivity of any matters pending at the Commission
affecting the intended donor;
(c) The timing of the intended gift;
(d) The market value of the intended gift;
(e) The frequency of other gifts made by the same donor; and
(f) The reason underlying the intended gift given in a written statement
from the proposed donor.
§ 1.3004 Public disclosure and reporting requirements.
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(a) Public disclosure of gifts accepted from prohibited sources. The
Commission's Security Operations Office, Office of the Managing Director,
shall maintain a written record of gifts accepted from prohibited sources by
the Commission pursuant to section 4(g)(3) authority, which will include:
(1) The identity of the prohibited source;
(2) A description of the gift;
(3) The market value of the gift;
(4) Documentation concerning the prohibited source's reason for the gift as
required in §1.3003(f);
(5) A signed statement of verification from the prohibited source that the
gift is unconditional and is not contingent on any promise or expectation
that the Commission's receipt of the gift will benefit the proposed donor in
any regulatory matter; and
(6) The date the gift is accepted by the Commission.
(b) Reporting Requirements for all gifts. The Commission shall file a
semi-annual report to Congress listing the gift, donor and value of all
gifts accepted from any donor under this subpart.
Subpart S—Preemption of Restrictions That “Impair” the Ability To Receive
Television Broadcast Signals, Direct Broadcast Satellite Services, or
Multichannel Multipoint Distribution Services or the Ability To Receive or
Transmit Fixed Wireless Communications Signals
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Source: 66 FR 2333 , Jan. 11, 2001, unless otherwise noted.
§ 1.4000 Restrictions impairing reception of television broadcast signals,
direct broadcast satellite services or multichannel multipoint distribution
services.
top
(a)(1) Any restriction, including but not limited to any state or local law
or regulation, including zoning, land-use, or building regulations, or any
private covenant, contract provision, lease provision, homeowners'
association rule or similar restriction, on property within the exclusive
use or control of the antenna user where the user has a direct or indirect
ownership or leasehold interest in the property that impairs the
installation, maintenance, or use of:
(i) An antenna that is:
(A) Used to receive direct broadcast satellite service, including
direct-to-home satellite service, or to receive or transmit fixed wireless
signals via satellite, and
(B) One meter or less in diameter or is located in Alaska;
(ii) An antenna that is:
(A) Used to receive video programming services via multipoint distribution
services, including multichannel multipoint distribution services,
instructional television fixed services, and local multipoint distribution
services, or to receive or transmit fixed wireless signals other than via
satellite, and
(B) That is one meter or less in diameter or diagonal measurement;
(iii) An antenna that is used to receive television broadcast signals; or
(iv) A mast supporting an antenna described in paragraphs (a)(1)(i),
(a)(1)(ii), or (a)(1)(iii) of this section; is prohibited to the extent it
so impairs, subject to paragraph (b) of this section.
(2) For purposes of this section, “fixed wireless signals” means any
commercial non-broadcast communications signals transmitted via wireless
technology to and/or from a fixed customer location. Fixed wireless signals
do not include, among other things, AM radio, FM radio, amateur (“HAM”)
radio, Citizen's Band (CB) radio, and Digital Audio Radio Service (DARS)
signals.
(3) For purposes of this section, a law, regulation, or restriction impairs
installation, maintenance, or use of an antenna if it:
(i) Unreasonably delays or prevents installation, maintenance, or use;
(ii) Unreasonably increases the cost of installation, maintenance, or use;
or
(iii) Precludes reception or transmission of an acceptable quality signal.
(4) Any fee or cost imposed on a user by a rule, law, regulation or
restriction must be reasonable in light of the cost of the equipment or
services and the rule, law, regulation or restriction's treatment of
comparable devices. No civil, criminal, administrative, or other legal
action of any kind shall be taken to enforce any restriction or regulation
prohibited by this section except pursuant to paragraph (d) or (e) of this
section. In addition, except with respect to restrictions pertaining to
safety and historic preservation as described in paragraph (b) of this
section, if a proceeding is initiated pursuant to paragraph (d) or (e) of
this section, the entity seeking to enforce the antenna restrictions in
question must suspend all enforcement efforts pending completion of review.
No attorney's fees shall be collected or assessed and no fine or other
penalties shall accrue against an antenna user while a proceeding is pending
to determine the validity of any restriction. If a ruling is issued adverse
to a user, the user shall be granted at least a 21-day grace period in which
to comply with the adverse ruling; and neither a fine nor a penalty may be
collected from the user if the user complies with the adverse ruling during
this grace period, unless the proponent of the restriction demonstrates, in
the same proceeding which resulted in the adverse ruling, that the user's
claim in the proceeding was frivolous.
(b) Any restriction otherwise prohibited by paragraph (a) of this section is
permitted if:
(1) It is necessary to accomplish a clearly defined, legitimate safety
objective that is either stated in the text, preamble, or legislative
history of the restriction or described as applying to that restriction in a
document that is readily available to antenna users, and would be applied to
the extent practicable in a non-discriminatory manner to other
appurtenances, devices, or fixtures that are comparable in size and weight
and pose a similar or greater safety risk as these antennas and to which
local regulation would normally apply; or
(2) It is necessary to preserve a prehistoric or historic district, site,
building, structure or object included in, or eligible for inclusion on, the
National Register of Historic Places, as set forth in the National Historic
Preservation Act of 1966, as amended, 16 U.S.C. 470, and imposes no greater
restrictions on antennas covered by this rule than are imposed on the
installation, maintenance, or use of other modern appurtenances, devices, or
fixtures that are comparable in size, weight, and appearance to these
antennas; and
(3) It is no more burdensome to affected antenna users than is necessary to
achieve the objectives described in paragraphs (b)(1) or (b)(2) of this
section.
(c) In the case of an antenna that is used to transmit fixed wireless
signals, the provisions of this section shall apply only if a label is
affixed to the antenna that:
(1) Provides adequate notice regarding potential radiofrequency safety
hazards, e.g., information regarding the safe minimum separation distance
required between users and transceiver antennas; and
(2) References the applicable FCC-adopted limits for radiofrequency exposure
specified in §1.1310 of this chapter.
(d) Local governments or associations may apply to the Commission for a
waiver of this section under §1.3 of this chapter. Waiver requests must
comply with the procedures in paragraphs (f) and (h) of this section and
will be put on public notice. The Commission may grant a waiver upon a
showing by the applicant of local concerns of a highly specialized or
unusual nature. No petition for waiver shall be considered unless it
specifies the restriction at issue. Waivers granted in accordance with this
section shall not apply to restrictions amended or enacted after the waiver
is granted. Any responsive pleadings must be served on all parties and filed
within 30 days after release of a public notice that such petition has been
filed. Any replies must be filed within 15 days thereafter.
(e) Parties may petition the Commission for a declaratory ruling under §1.2
of this chapter, or a court of competent jurisdiction, to determine whether
a particular restriction is permissible or prohibited under this section.
Petitions to the Commission must comply with the procedures in paragraphs
(f) and (h) of this section and will be put on public notice. Any responsive
pleadings in a Commission proceeding must be served on all parties and filed
within 30 days after release of a public notice that such petition has been
filed. Any replies in a Commission proceeding must be served on all parties
and filed within 15 days thereafter.
(f) Copies of petitions for declaratory rulings and waivers must be served
on interested parties, including parties against whom the petitioner seeks
to enforce the restriction or parties whose restrictions the petitioner
seeks to prohibit. A certificate of service stating on whom the petition was
served must be filed with the petition. In addition, in a Commission
proceeding brought by an association or a local government, constructive
notice of the proceeding must be given to members of the association or to
the citizens under the local government's jurisdiction. In a court
proceeding brought by an association, an association must give constructive
notice of the proceeding to its members. Where constructive notice is
required, the petitioner or plaintiff must file with the Commission or the
court overseeing the proceeding a copy of the constructive notice with a
statement explaining where the notice was placed and why such placement was
reasonable.
(g) In any proceeding regarding the scope or interpretation of any provision
of this section, the burden of demonstrating that a particular governmental
or nongovernmental restriction complies with this section and does not
impair the installation, maintenance, or use of devices used for
over-the-air reception of video programming services or devices used to
receive or transmit fixed wireless signals shall be on the party that seeks
to impose or maintain the restriction.
(h) All allegations of fact contained in petitions and related pleadings
before the Commission must be supported by affidavit of a person or persons
with actual knowledge thereof. An original and two copies of all petitions
and pleadings should be addressed to the Secretary, Federal Communications
Commission, 445 12th Street, SW, Washington, DC 20554. Copies of the
petitions and related pleadings will be available for public inspection in
the Reference Information Center, Consumer and Governmental Affairs Bureau,
Federal Communications Commission, 445 12th Street, SW, Washington, DC
20554. Copies will be available for purchase from the Commission's contract
copy center, and the Commission decisions will be available on the Internet.
[ 66 FR 2333 , Jan. 11, 2001, as amended at 67 FR 13224 , Mar. 21, 2002]
Subpart T—Exempt Telecommunications Companies
top
§ 1.5000 Purpose.
top
The purpose of part 1, subpart S, is to implement Section 34(a) of the
Public Utility Holding Company Act of 1935, 15 U.S.C. §79 et seq., as added
by Section 103 of the Telecommunications Act of 1996, Public Law No.
104–104, 110 Stat. 56 (1996).
[ 61 FR 52899 , Oct. 9, 1996; 61 FR 57335 , Nov. 6, 1996]
§ 1.5001 Definitions.
top
(a) For the purpose of this part, the terms telecommunications services and
information services shall have the same meanings as provided in the
Communications Act of 1934, as amended;
(b) Commission shall be defined as the Federal Communications Commission;
and
(c) ETC shall be defined as an exempt telecommunications company.
[ 61 FR 52899 , Oct. 9, 1996; 61 FR 57335 , Nov. 6, 1996]
§ 1.5002 Contents of application and procedure for filing.
top
(a) A person seeking status as an exempt telecommunications company
(applicant) must file with the Commission with respect to the company or
companies which are eligible companies owned or operated by the applicant,
and serve on the Securities and Exchange Commission and any affected State
commission, the following:
(1) A brief description of the planned activities of the company or
companies which are or will be eligible companies owned and/or operated by
the applicant;
(2) A sworn statement, by a representative legally authorized to bind the
applicant, attesting to any facts or representations presented to
demonstrate eligibility for ETC status, including a representation that the
applicant is engaged directly, or indirectly, wherever located, through one
or more affiliates (as defined in Section 2(a)(11)(B) of the Public Utility
Holding Company Act of 1935), and exclusively in the business of providing:
(i) Telecommunications services;
(ii) Information services;
(iii) Other services or products subject to the jurisdiction of the
Commission; or
(iv) Products or services that are related or incidental to the provision of
a product or service described in paragraph (a)(1)(i), (a)(1)(ii), or
(a)(1)(iii); and
(3) A sworn statement, by a representative legally authorized to bind the
applicant, certifying that the applicant satisfies part 1, subpart P, of the
Commission's regulations, 47 CFR 1.2001 through 1.2003, regarding
implementation of the Anti-Drug Abuse Act of 1988, 21 U.S.C. 862.
[ 61 FR 52899 , Oct. 9, 1996; 61 FR 57335 , Nov. 6, 1996]
§ 1.5003 Effect of filing.
top
A person applying in good faith for a Commission determination of exempt
telecommunications company status will be deemed to be an exempt
telecommunications company from the date of receipt of the application until
the date of Commission action pursuant to §1.5004.
[ 61 FR 52899 , Oct. 9, 1996; 61 FR 57335 , Nov. 6, 1996]
§ 1.5004 Commission action.
top
If the Commission has not issued an order granting or denying an application
within 60 days of receipt of the application, the application will be deemed
to have been granted as a matter of law.
[ 61 FR 52899 , Oct. 9, 1996; 61 FR 57335 , Nov. 6, 1996]
§ 1.5005 Notification of Commission action to the Securities and Exchange
Commission.
top
The Secretary of the Commission will notify the Securities and Exchange
Commission whenever a person is determined to be an exempt
telecommunications company.
[ 61 FR 52899 , Oct. 9, 1996; 61 FR 57335 , Nov. 6, 1996]
§ 1.5006 Procedure for notifying Commission of material change in facts.
top
If there is any material change in facts that may affect an ETC's
eligibility for ETC status under Section 34(a)(1) of the Public Utility
Holding Company Act of 1935, the ETC must, within 30 days of the change in
fact, either:
(a) Apply to the Commission for a new determination of ETC status;
(b) File a written explanation with the Commission of why the material
change in facts does not affect the ETC's status; or
(c) Notify the Commission that it no longer seeks to maintain ETC status.
[ 61 FR 52899 , Oct. 9, 1996; 61 FR 57335 , Nov. 6, 1996]
§ 1.5007 Comments.
top
(a) Any person wishing to be heard concerning an application for ETC status
may file comments with the Commission within fifteen (15) days from the
release date of a public notice regarding the application, or such other
period of time set by the Commission. Any comments must be limited to the
adequacy or accuracy of the application.
(b) Any person who files comments with the Commission must also serve copies
of all comments on the applicant.
(c) An applicant has seven (7) days to reply to any comments filed regarding
the adequacy and accuracy of its application, or such other period of time
as set by the Commission. Such reply shall be served on the commenters.
[ 61 FR 52899 , Oct. 9, 1996; 61 FR 57335 , Nov. 6, 1996]
Subpart U—Implementation of Section 325(e) of the Communications Act:
Procedures Governing Complaints Filed by Television Broadcast Stations Against
Satellite Carriers for Retransmission Without Consent
top
Source: 65 FR 10720 , Feb. 29, 2000, unless otherwise noted.
§ 1.6000 Purpose.
top
The purpose of part 1, Subpart U, is to implement Section 325(e) of the
Communications Act of 1934, as amended, 47 U.S.C. 325(e), et seq., as added
by section 1009 of the Satellite Home Viewer Improvement Act of 1999, Public
Law 106–113, section 1000(9), 113 Stat. 1501, Appendix I (1999). The
procedures set forth in this subpart supersede 47 U.S.C. 312.
§ 1.6001 Retransmission consent complaint procedures.
top
By whom. If a television broadcast station believes that a satellite carrier
has retransmitted its broadcast station's signal to any person in the local
market of such station in violation of 47 U.S.C. 325 (b)(1), the station may
file a complaint with the Commission under this section.
§ 1.6002 Form and content.
top
(a) The following format shall be used for complaints of this type:
Before the Federal Communications Commission
Washington, D.C. 20554
In the Matter of Complainant,
v.
Defendant
File No. (to be inserted by the staff)
Complaint
To: The Commission.
The complainant (here insert the name, address, and call letters of the
complaining television broadcast station) avers that: On (here insert the
dates upon which the alleged transmission occurred), retransmission of the
broadcast television station's signal was made by (insert here name and
address of the satellite carrier) to (here insert the street address of at
least one person in the local market of the station to whom the alleged
retransmission was made). The complainant avers that (here insert a
statement that the retransmission was not expressly authorized by the
television broadcast station), and requests that the appropriate relief be
granted by the Commission, as provided by the pertinent provisions of the
Communications Act of 1934, as amended, and the Commission's Rules.
Date:
(here insert the name and address of counsel for the complaining station).
(b) A complaint lacking any of the foregoing information shall be dismissed
by the FCC without prejudice to the complaining station.
(c) Additional information may be provided, and, where applicable, should
conform to the requirements set forth in §§1.48 through 1.52 of the
Commission's rules.
§ 1.6003 Service requirements.
top
(a) General. Pursuant to 47 U.S.C. 325(e), for purposes of any proceeding
under this subsection, any satellite carrier that retransmits the signal of
any broadcast station shall be deemed to designate the Secretary of the
Commission as its agent for service of process.
(b) Specific. (1) A television broadcast station shall serve a satellite
carrier with a complaint concerning an alleged violation of 47 U.S.C.
325(b)(1) by filing the original and two copies of the complaint on the
Secretary of the Commission and serving a copy of the complaint by means of
two commonly used overnight delivery services, each addressed to the chief
executive officer of the satellite carrier at its principal place of
business and each marked “URGENT LITIGATION MATTER” on the outer packaging.
Service shall be deemed complete one business day after a copy of the
complaint is provided to the delivery services for overnight delivery. On
receipt of a complaint filed by a television broadcast station under this
subsection, the Secretary of the Commission shall send the original
complaint by United States mail, postage prepaid, receipt requested,
addressed to the chief executive officer of the satellite carrier at its
principal place of business.
(2) Satellite carriers shall provide the name, address, and telephone number
(including area code) of their chief executive officers to the Secretary of
the Commission, no later than April 15, 2000. Satellite carriers shall
update this information, as necessary, in the event that the identity or the
address of their respective chief executive officers changes. These updates
shall be made by United States mail within seven (7) days of such changes.
Complaints sent to the last known address shall be deemed served if the
satellite carrier fails to notify the Secretary of the Commission in
accordance with this provision.
§ 1.6004 Answers.
top
Within five (5) business days after the date of service, without regard to
§1.4 of this part, the satellite carrier shall file its answer with the
Commission, and shall contemporaneously serve the answer upon counsel
designated in the complaint, at the address listed for such counsel in the
complaint. Service of the answer shall be made by use of one commonly used
overnight delivery service and by the United States mail.
§ 1.6005 Exclusive defenses.
top
(a) The defenses listed in paragraphs (a)(1) through (a)(4) of this section,
are the only defenses available to a satellite carrier against which a
complaint under this section is filed.
(1) The satellite carrier did not retransmit the television broadcast
station's signal to any person in the “local market” of the television
broadcast station, as that term is defined in 17 U.S.C. 122(j) (Designated
Market Area as determined by Nielsen Media Research and county containing
the station's community of license), during the time period specified in the
complaint;
(2) The television broadcast station had, in a writing signed by an officer
of the television broadcast station, expressly authorized the retransmission
of the station by the satellite carrier to each person in the “local
market” of the television broadcast station, as that term is defined in 17
U.S.C. 122(j), to which the satellite carrier made such retransmissions for
the entire time period during which it is alleged that a violation of 47
U.S.C. 325 (b)(1) has occurred;
(3) The retransmission was made after January 1, 2002, and the television
broadcast station had elected to assert the right to carriage under 47
U.S.C. 338 as against the satellite carrier for the relevant period; or
(4) The television broadcast station whose signal is being retransmitted is
a noncommercial television broadcast station.
(b) [Reserved]
§ 1.6006 Counting of violations.
top
Each day of retransmission without consent of a particular television
broadcast station to one or more persons in the local market of the station
shall be considered a separate violation of 47 U.S.C. 325(b)(1).
§ 1.6007 Burden of proof.
top
With respect to each alleged violation, the burden of proof shall be on a
television broadcast station to establish that the satellite carrier
retransmitted the station to at least one person in the local market of the
station on the day in question. The burden of proof shall be on the
satellite carrier with respect to all defenses other than the defense under
§1.6005(a)(1).
§ 1.6008 Determinations.
top
(a) In General. Within forty five (45) days after the filing of a complaint,
the Commission shall issue a final determination in any proceeding brought
under this subsection. The Commission's final determination shall specify
the number of violations committed by the satellite carrier. The Commission
shall hear witnesses only if it clearly appears, based on the written
filings by the parties, that there is a genuine dispute about material
facts. Except as provided in the preceding sentence, the Commission may
issue a final ruling based on the written filings by the parties.
(b) Discovery. The Commission may direct the parties to exchange pertinent
documents, and if necessary, to take prehearing depositions, on such
schedule as the Commission may approve, but only if the Commission first
determines that such discovery is necessary to resolve a genuine dispute
about material facts, consistent with the obligation to make a final
determination within forty five (45) days. In this connection, the
Commission may utilize the discovery or other evidentiary procedures set
forth in §§1.311 through 1.364 of the Commission's rules.
§ 1.6009 Relief.
top
If the Commission determines that a satellite carrier has retransmitted the
television broadcast station to at least one person in the local market of
such station and has failed to meet its burden of proving one of the
defenses under §1.6005 (a)(2) through (a)(4) with respect to such
retransmission, the Commission shall:
(a) Make a finding that the satellite carrier violated 47 U.S.C. 325(b)(1)
with respect to that station; and
(b) Issue an order, within forty-five (45) days after the filing of the
complaint, containing—
(1) A cease-and-desist order directing the satellite carrier immediately to
stop making any further retransmissions of the television broadcast station
to any person within the local market of such station until such time as the
Commission determines that the satellite carrier is in compliance with 47
U.S.C. 325(b)(1) with respect to such station;
(2) If the satellite carrier is found to have violated 47 U.S.C. 325(b)(1)
with respect to more than two television broadcast stations, a
cease-and-desist order directing the satellite carrier to stop making any
further retransmission of any television broadcast station to any person
within the local market of the stations identified in the cease-and-desist
order, until such time as the Commission, after giving notice to the
station, determines that the satellite carrier is in compliance with 47
U.S.C. 325(b)(1) with respect to such stations; and
(3) An award to the complainant of that complainant's costs and reasonable
attorney's fees. Such award shall be made only after the complainant submits
appropriate documentation in support of its request.
(c) Any cease-and-desist order issued hereunder shall include a statement of
findings and the grounds therefor, shall specify the effective date of the
order, and shall be served by the Commission upon the satellite carrier to
which such order is directed.
§ 1.6010 Reporting of remedial measures.
top
Any satellite carrier found to have violated Section 47 U.S.C. 325(b)(1)
shall, upon receipt of the cease-and-desist order, immediately take all
necessary steps to comply with the statute. Within two (2) days of receipt
of the cease-and-desist order, the satellite carrier shall notify the
Secretary of the Commission of steps taken to comply with the statute by
written submission. The submission certified by the satellite carrier's
chief executive officer shall also contain a copy of the pertinent
cease-and-desist order, and shall be delivered to the Secretary of the
Commission by means of one commonly used overnight delivery service, in
addition to a copy delivered by United States mail.
Effective Date Note: At 65 FR 10721 , Feb. 29, 2000, §1.6010 was added.
This section contains information collection and recordkeeping requirements
and will not become effective until approval has been given by the Office of
Management and Budget.
§ 1.6011 Effective date.
top
The rules in section 1.6000 through section 1.6009 shall become effective
May 30, 2000. Section 1.6010 contains information collection requirements
that are not effective until approved by the Office of Management and
Budget. The effective date for this section will be announced by the
Commission in theFederal Register.
§ 1.6012 Sunset provisions.
top
No complaint may be filed under this rule section after December 31, 2001.
This rule subpart shall continue to apply to any complaint filed on or
before such date. See 47 U.S.C. 325 (e)(12).
Subpart V—Implementation of Section 706 of the Telecommunications Act of 1996;
Commission Collection of Advanced Telecommunications Capability Data
top
Source: 65 FR 19684 , Apr. 12, 2000; 65 FR 24654 , Apr. 27, 2000, unless
otherwise noted.
§ 1.7000 Purpose.
top
The purpose of this subpart is to set out the terms by which certain
commercial and government-controlled entities report data to the Commission
concerning the deployment of advanced telecommunications capability, defined
pursuant to 47 U.S.C. 157 as “high-speed, switched, broadband
telecommunications capability that enables users to originate and receive
high-quality voice, data, graphics, and video telecommunications using any
technology,” and the deployment of services that are competitive with
advanced telecommunications capability.
§ 1.7001 Scope and content of filed reports.
top
(a) Definitions. Terms used in this subpart have the following meanings:
(1) Facilities-based providers. Those entities that provide broadband
services over their own facilities or over Unbundled Network Elements
(UNEs), special access lines, and other leased lines and wireless channels
that the entity obtains from a communications service provider and equips as
broadband.
(2) Full broadband lines or wireless channels. Lines or wireless channels
with information carrying capability in excess of 200 Kbps in both
directions simultaneously.
(3) One-way broadband lines or wireless channels. Lines or wireless channels
with information carrying capability in excess of 200 Kbps in at least one
direction, but not both.
(4) Own facilities. Lines and wireless channels the entity actually owns and
facilities that it obtained the right to use from other entities as dark
fiber or satellite transponder capacity.
(b) All commercial and government-controlled entities, including but not
limited to common carriers and their affiliates (as defined in 47 U.S.C. 153
(1)), cable television companies, Multichannel Multipoint Distribution
Service (MMDS/MDS) “wireless cable” carriers, other fixed wireless
providers, terrestrial and satellite mobile wireless providers, utilities
and others, which are facilities-based providers, shall file with the
Commission a completed FCC Form 477, in accordance with the Commission's
rules and the instructions to the FCC Form 477, for each state in which they
provide service.
(c) Respondents identified in paragraph (b) of this section shall file the
FCC Form 477 on diskette or via e-mail, as directed in the instructions to
the FCC Form 477. Upon submission of each report, an original certification
letter (as contained in the instructions to FCC Form 477) signed by the
responsible official shall be mailed to the Commission.
(d) Respondents may make requests for Commission non-disclosure of
provider-specific data contained in FCC Form 477 under §0.459 of this
chapter by so indicating on Form 477 at the time that the subject data are
submitted. The Commission shall make all decisions regarding non-disclosure
or provider-specific information, except that the Chief of the Wireline
Competition Bureau may release provider-specific information to a state
commission provided that the state commission has protections in place that
would preclude disclosure of any confidential information.
(e) Respondents identified in paragraph (b) of this section shall file a
revised version of FCC Form 477 if and when they discover a significant
error in their filed FCC Form 477. For counts, a difference amounting to 5
percent of the filed number is considered significant. For percentages, a
difference of 5 percentage points is considered significant.
(f) Failure to file the FCC Form 477 in accordance with the Commission's
rules and the instructions to the Form 477 may lead to enforcement action
pursuant to the Act and any other applicable law.
[ 65 FR 19684 , Apr. 12, 2000; 65 FR 24654 , Apr. 27, 2000, as amended at 67 FR 13224 , Mar. 21, 2002; 69 FR 77938 , Dec. 29, 2004; 69 FR 72027 , Dec. 10,
2004]
§ 1.7002 Frequency of reports.
top
Entities subject to the provisions of §1.7001 shall file reports
semi-annually. Reports shall be filed each year on or before March 1st
(reporting data about the status of their broadband deployment as of
December 31 of the prior year) and September 1st (reporting data about the
status of their broadband deployment as of June 31 of the current year).
Entities becoming subject to the provisions of §1.7001 for the first time
within a calendar year shall file data for the reporting period in which
they become eligible and semi-annually thereafter. Entities subject to the
provisions of §1.7001 shall make an initial filing of the FCC Form 477 on
May 15, 2000 (reporting data about the status of their broadband deployment
as of December 31, 1999).
[ 65 FR 19684 , Apr. 12, 2000; 65 FR 24654 , Apr. 27, 2000]
Subpart W—FCC Registration Number
top
Source: 66 FR 47895 , Sept. 14, 2001, unless otherwise noted.
§ 1.8001 FCC Registration Number (FRN).
top
(a) The FCC Registration Number (FRN) is a 10-digit unique identifying
number that is assigned to entities doing business with the Commission.
(b) The FRN is obtained through the Commission Registration System (CORES)
over the Internet at the CORES link at www.fcc.gov or by filing FCC Form
160.
§ 1.8002 Obtaining an FRN.
top
(a) The FRN must be obtained by anyone doing business with the Commission,
see 31 U.S.C. 7701(c)(2), including but not limited to:
(1) Anyone required to pay statutory charges under subpart G of this part;
(2) Anyone applying for a license, including someone who is exempt from
paying statutory charges under subpart G of this part, see §§1.1114 and
1.1162;
(3) Anyone participating in a spectrum auction;
(4) Anyone holding or obtaining a spectrum auction license or loan;
(5) Anyone paying statutory charges on behalf of another entity or person;
and
(6) Any applicant or service provider participating in the Schools and
Libraries Universal Service Support Program, part 54, subpart F, of this
chapter.
(b)(1) When registering for an FRN through the CORES, an entity's name,
entity type, contact name and title, address, and taxpayer identifying
number (TIN) must be provided. For individuals, the TIN is the social
security number (SSN).
(2) Information provided when registering for an FRN must be kept current by
registrants either by updating the information on-line at the CORES link at
www.fcc.gov or by filing FCC Form 161 (CORES Update/Change Form).
(c) A business may obtain as many FRNs as it deems appropriate for its
business operations. Each subsidiary with a different TIN must obtain a
separate FRN. Multiple FRNs shall not be obtained to evade payment of fees
or other regulatory responsibilities.
(d) An FRN may be assigned by the Commission, which will promptly notify the
entity of the assigned FRN.
(e) An FRN may be assigned by the Billing and Collection Agent for North
American Numbering Plan Administration and the Administrators of the
Universal Service Fund and the Telecommunications Relay Services Fund. In
each instance, the Billing and Collection Agent for North American Numbering
Plan Administration and the Administrators of the Universal Service Fund and
the Telecommunications Relay Services Fund shall promptly notify the entity
of the assigned FRN.
[ 66 FR 47895 , Sept. 14, 2001, as amended at 67 FR 36818 , May 28, 2002; 68 FR 66277 , Nov. 25, 2003; 69 FR 55109 , Sept. 13, 2004; 70 FR 21651 , Apr. 27,
2005]
§ 1.8003 Providing the FRN in Commission filings.
top
The FRN must be provided with any filings requiring the payment of statutory
charges under subpart G of this part, anyone applying for a license (whether
or not a fee is required), including someone who is exempt from paying
statutory charges under subpart G of this part, anyone participating in a
spectrum auction, making up-front payments or deposits in a spectrum
auction, anyone making a payment on an auction loan, anyone making a
contribution to the Universal Service Fund, any applicant or service
provider participating in the Schools and Libraries Universal Service
Support Program, and anyone paying a forfeiture or other payment. A list of
applications and other instances where the FRN is required will be posted on
our Internet site and linked to the CORES page.
[ 69 FR 55109 , Sept. 13, 2004]
§ 1.8004 Penalty for Failure to Provide the FRN.
top
(a) Electronic filing systems for filings that require the FRN will not
accept a filing without the appropriate FRN. If a party seeks to make an
electronic filing and does not have an FRN, the system will direct the party
to the CORES website to obtain an FRN.
(b) Except as provided in paragraph (d) of this section or in other
Commission rules, filings subject to the FRN requirement and submitted
without an FRN will be returned or dismissed.
(c) Where the Commission has not established a filing deadline for an
application, a missing or invalid FRN on such an application may be
corrected and the application resubmitted. Except as provided in paragraph
(d) of this section or in other Commission rules, the date that the
resubmitted application is received by the Commission with a valid FRN will
be considered the official filing date.
(d) Except for the filing of tariff publications ( see 47 CFR 61.1(b)) or as
provided in other Commission rules, where the Commission has established a
filing deadline for an application and that application may be filed on
paper, a missing or invalid FRN on such an application may be corrected with
ten (10) business days of notification to the filer by the Commission staff
and, in the event of such timely correction, the original date of filing
will be retained as the official filing date.
[ 66 FR 47895 , Sept. 14, 2001, as amended at 67 FR 36818 , May 28, 2002]
Subpart X—Spectrum Leasing
top
Source: 68 FR 66277 , Nov. 25, 2003, unless otherwise noted.
Scope And Authority
top
§ 1.9001 Purpose and scope.
top
(a) The purpose of part 1, subpart X is to implement policies and rules
pertaining to spectrum leasing arrangements between licensees in the
services identified in this subpart and spectrum lessees. This subpart also
implements policies for private commons arrangements. These policies and
rules also implicate other Commission rule parts, including parts 1, 2, 20,
22, 24, 26, 27, 80, 90, 95, and 101 of title 47, chapter I of the Code of
Federal Regulations.
(b) Licensees holding exclusive use rights are permitted to engage in
spectrum leasing whether their operations are characterized as commercial,
common carrier, private, or non-common carrier.
[ 68 FR 66277 , Nov. 25, 2003, as amended at 69 FR 77550 , Dec. 27, 2004]
§ 1.9003 Definitions.
top
De facto transfer leasing arrangement. A spectrum leasing arrangement in
which a licensee retains de jure control of its license while transferring
de facto control of the leased spectrum to a spectrum lessee, pursuant to
the spectrum leasing rules set forth in this subpart.
FCC Form 608. FCC Form 608 is the form to be used by licensees and spectrum
lessees that enter into spectrum leasing arrangements pursuant to the rules
set forth in this subpart. Parties are required to submit this form
electronically when entering into spectrum leasing arrangements under this
subpart, except that licensees falling within the provisions of §1.913(d),
may file the form either electronically or manually.
Long-term de facto transfer leasing arrangement . A long-term de facto
transfer leasing arrangement is a de facto transfer leasing arrangement that
has an individual term, or series of combined terms, of more than one year.
Private commons. A “private commons” arrangement is an arrangement, distinct
from a spectrum leasing arrangement but permitted in the same services for
which spectrum leasing arrangements are allowed, in which a licensee or
spectrum lessee makes certain spectrum usage rights under a particular
license authorization available to a class of third-party users employing
advanced communications technologies that involve peer-to-peer
(device-to-device) communications and that do not involve use of the
licensee's or spectrum lessee's end-to-end physical network infrastructure (
e.g. , base stations, mobile stations, or other related elements).
Short-term de facto transfer leasing arrangement. A short-term de facto
transfer leasing arrangement is a de facto transfer leasing arrangement that
has an individual or combined term of not longer than one year.
Spectrum leasing application. The application submitted to the Commission by
a licensee and a spectrum lessee seeking approval of a de facto transfer
leasing arrangement.
Spectrum leasing arrangement. An arrangement between a licensed entity and a
third-party entity in which the licensee leases certain of its spectrum
usage rights in the licensed spectrum to the third-party entity, the
spectrum lessee, pursuant to the rules set forth in this subpart. The
arrangement may involve the leasing of any amount of licensed spectrum, in
any geographic area or site encompassed by the license, for any period of
time during the term of the license authorization. Two different types of
spectrum leasing arrangements, spectrum manager leasing arrangements and de
facto transfer leasing arrangements, are permitted under this subpart.
Spectrum leasing notification. The required notification submitted by a
licensee to the Commission regarding a spectrum manager leasing arrangement.
Spectrum lessee. Any third-party entity that leases, pursuant to the
spectrum leasing rules set forth in this subpart, certain spectrum usage
rights held by a licensee. This term includes reference to third-party
entities that lease spectrum usage rights as spectrum sublessees under
spectrum subleasing arrangements.
Spectrum manager leasing arrangement. A spectrum leasing arrangement in
which a licensee retains both de jure control of its license and de facto
control of the leased spectrum that it leases to a spectrum lessee, pursuant
to the spectrum leasing rules set forth in this subpart.
[ 68 FR 66277 , Nov. 25, 2003, as amended at 69 FR 77550 , Dec. 27, 2004]
Effective Date Note: At 69 FR 77550 , Dec. 27, 2004, §1.9003 was amended.
This section contains information collection and recordkeeping requirements
and will not become effective until approval has been given by the Office of
Management and Budget.
§ 1.9005 Included services.
top
Link to an amendment published at 72 FR 48843 , Aug. 24, 2007.
The spectrum leasing policies and rules of this subpart apply to the
following services in the Wireless Radio Services in which commercial or
private licensees hold exclusive use rights:
(a) The Paging and Radiotelephone Service (part 22 of this chapter);
(b) The Rural Radiotelephone Service (part 22 of this chapter);
(c) The Air-Ground Radiotelephone Service (part 22 of this chapter);
(d) The Cellular Radiotelephone Service (part 22 of this chapter);
(e) The Offshore Radiotelephone Service (part 22 of this chapter);
(f) The narrowband Personal Communications Service (part 24 of this
chapter);
(g) The broadband Personal Communications Service (part 24 of this chapter);
(h) The Broadband Radio Service (part 27 of this chapter);
(i) The Educational Broadband Service (part 27 of this chapter);
(j) The Wireless Communications Service in the 698–746 MHz band (part 27 of
this chapter);
(k) The Wireless Communications Service in the 746–764 MHz and 776–794 MHz
bands (part 27 of this chapter);
(l) The Wireless Communications Service in the 1390–1392 MHz band (part 27
of this chapter);
(m) The Wireless Communications Service in the paired 1392–1395 MHz and
1432–1435 MHz bands (part 27 of this chapter);
(n) The Wireless Communications Service in the 1670–1675 MHz band (part 27
of this chapter);
(o) The Wireless Communications Service in the 2305–2320 and 2345–2360 MHz
bands (part 27 of this chapter);
(p) [Reserved]
(q) The Advanced Wireless Services (part 27 of this chapter);
(r) The VHF Public Coast Station service (part 80 of this chapter);
(s) The Automated Maritime Telecommunications Systems service (part 80 of
this chapter);
(t) The Public Safety Radio Services (part 90 of this chapter);
(u) The 220 MHz Service (excluding public safety licensees) (part 90 of this
chapter);
(v) The Specialized Mobile Radio Service in the 800 MHz and 900 MHz bands
(including exclusive use SMR licenses in the General Category channels)
(part 90 of this chapter);
(w) The Location and Monitoring Service (LMS) with regard to licenses for
multilateration LMS systems (part 90 of this chapter);
(x) Paging operations under part 90 of this chapter;
(y) The Business and Industrial/Land Transportation (B/ILT) channels (part
90 of this chapter) (including all B/ILT channels above 512 MHz and those in
the 470–512 MHz band where a licensee has achieved exclusivity, but
excluding B/ILT channels in the 470–512 MHz band where a licensee has not
achieved exclusivity and those channels below 470 MHz, including those
licensed pursuant to 47 CFR 90.187(b)(2)(v));
(z) The 218–219 MHz band (part 95 of this chapter);
(aa) The Local Multipoint Distribution Service (part 101 of this chapter);
(bb) The 24 GHz Band (part 101 of this chapter);
(cc) The 39 GHz Band (part 101 of this chapter);
(dd) The Multiple Address Systems band (part 101 of this chapter);
(ee) The Local Television Transmission Service (part 101 of this chapter);
(ff) The Private-Operational Fixed Point-to-Point Microwave Service (part
101 of this chapter);
(gg) The Common Carrier Fixed Point-to-Point Microwave Service (part 101 of
this chapter);
(hh) The Multipoint Video Distribution and Data Service (part 101 of this
chapter); and,
(ii) The 700 MHz Guard Bands Service (part 27 of this chapter).
[ 69 FR 77551 , Dec. 27, 2004, as amended at 71 FR 29815 , May 24, 2006; 72 FR 27708 , May 16, 2007]
General Policies and Procedures
top
§ 1.9010 De facto control standard for spectrum leasing arrangements.
top
(a) Under the rules established for spectrum leasing arrangements in this
subpart, the following standard is applied for purposes of determining
whether a licensee retains de facto control under section 310(d) of the
Communications Act with regard to spectrum that it leases to a spectrum
lessee.
(b) A licensee will be deemed to have retained de facto control of leased
spectrum if it enters into a spectrum leasing arrangement and acts as a
spectrum manager with regard to portions of the licensed spectrum that it
leases to a spectrum lessee, provided the licensee satisfies the following
two conditions:
(1) Licensee responsibility for lessee compliance with Commission policies
and rules. The licensee must remain fully responsible for ensuring the
spectrum lessee's compliance with the Communications Act and all applicable
policies and rules directly related to the use of the leased spectrum.
(i) Through contractual provisions and actual oversight and enforcement of
such provisions, the licensee must act in a manner sufficient to ensure that
the spectrum lessee operates in conformance with applicable technical and
use rules governing the license authorization.
(ii) The licensee must maintain a reasonable degree of actual working
knowledge about the spectrum lessee's activities and facilities that affect
its ongoing compliance with the Commission's policies and rules. These
responsibilities include: Coordinating operations and modifications of the
spectrum lessee's system to ensure compliance with Commission rules
regarding non-interference with co-channel and adjacent channel licensees
(and any authorized spectrum user); making all determinations as to whether
an application is required for any individual spectrum lessee stations (
e.g., those that require frequency coordination, submission of an
Environmental Assessment under §1.1307 of subpart I of this part, those that
require international or Interdepartment Radio Advisory Committee (IRAC)
coordination, those that affect radio frequency quiet zones described in
§1.924 of subpart F of this part, or those that require notification to the
Federal Aviation Administration under part 17 of this chapter); and,
ensuring that the spectrum lessee complies with the Commission's safety
guidelines relating to human exposure to radiofrequency (RF) radiation (
e.g., §1.1307(b) and related rules of subpart I of this part). The licensee
is responsible for resolving all interference-related matters, including
conflicts between its spectrum lessee and any other spectrum lessee or
licensee (or authorized spectrum user). The licensee may use agents ( e.g.,
counsel, engineering consultants) when carrying out these responsibilities,
so long as the licensee exercises effective control over its agents'
actions.
(iii) The licensee must be able to inspect the spectrum lessee's operations
and must retain the right to terminate the spectrum leasing arrangement in
the event the spectrum lessee fails to comply with the terms of the
arrangement and/or applicable Commission requirements. If the licensee or
the Commission determines that there is any violation of the Commission's
rules or that the spectrum lessee's system is causing harmful interference,
the licensee must immediately take steps to remedy the violation, resolve
the interference, suspend or terminate the operation of the system, or take
other measures to prevent further harmful interference until the situation
can be remedied. If the spectrum lessee refuses to resolve the interference,
remedy the violation, or suspend or terminate operations, either at the
direction of the licensee or by order of the Commission, the licensee must
use all reasonable legal means necessary to enforce compliance.
(2) Licensee responsibility for interactions with the Commission, including
all filings, required under the license authorization and applicable service
rules directly related to the leased spectrum. The licensee remains
responsible for the following interactions with the Commission:
(i) The licensee must file the necessary notification with the Commission,
as required under §1.9020(e).
(ii) The licensee is responsible for making all required filings ( e.g.,
applications, notifications, correspondence) associated with the license
authorization that are directly affected by the spectrum lessee's use of the
licensed spectrum. The licensee may use agents ( e.g., counsel, engineering
consultants) to complete these filings, so long as the licensee exercises
effective control over its agents' actions and complies with any signature
requirements for such filings.
[ 68 FR 66277 , Nov. 25, 2003, as amended at 69 FR 77551 , Dec. 27, 2004]
§ 1.9020 Spectrum manager leasing arrangements.
top
(a) Overview. Under the provisions of this section, a licensee (in any of
the included services) and a spectrum lessee may enter into a spectrum
manager leasing arrangement, without the need for prior Commission approval,
provided that the licensee retains de jure control of the license and de
facto control, as defined and explained in this subpart, of the leased
spectrum. The licensee must notify the Commission of the spectrum leasing
arrangement pursuant to the rules set forth in this section. The term of a
spectrum manager leasing arrangement may be no longer than the term of the
license authorization.
(b) Rights and responsibilities of the licensee. (1) The licensee is
directly and primarily responsible for ensuring the spectrum lessee's
compliance with the Communications Act and applicable Commission policies
and rules.
(2) The licensee retains responsibility for maintaining its compliance with
applicable eligibility and ownership requirements imposed on it pursuant to
the license authorization.
(3) The licensee must retain a copy of the spectrum leasing agreement and
make it available upon request by the Commission.
(c) Rights and responsibilities of the spectrum lessee. (1) The spectrum
lessee must comply with the Communications Act and with Commission
requirements associated with the license.
(2) The spectrum lessee is responsible for establishing that it meets the
eligibility and qualification requirements applicable to spectrum lessees
under the rules set forth in this section.
(3) The spectrum lessee must comply with any obligations that apply directly
to it as a result of its own status as a service provider ( e.g., Title II
obligations if the spectrum lessee acts as a telecommunications carrier or
acts as a common carrier).
(4) In addition to the licensee being directly accountable to the Commission
for ensuring the spectrum lessee's compliance with the Commission's
operational rules and policies (as discussed in this subpart), the spectrum
lessee is independently accountable to the Commission for complying with the
Communications Act and Commission policies and rules, including those that
apply directly to the spectrum lessee as a result of its own status as a
service provider.
(5) In leasing spectrum from a licensee, the spectrum lessee must accept
Commission oversight and enforcement consistent with the license
authorization. The spectrum lessee must cooperate fully with any
investigation or inquiry conducted by either the Commission or the licensee,
allow the Commission or the licensee to conduct on-site inspections of
transmission facilities, and suspend operations at the direction of the
Commission or the licensee and to the extent that such suspension would be
consistent with the Commission's suspension policies.
(6) The spectrum lessee must retain a copy of the spectrum leasing agreement
and make it available upon request by the Commission.
(d) Applicability of particular service rules and policies. Under a spectrum
manager leasing arrangement, the service rules and policies apply in the
following manner to the licensee and spectrum lessee:
(1) Interference-related rules. The interference and radiofrequency (RF)
safety rules applicable to use of the spectrum by the licensee as a
condition of its license authorization also apply to the use of the spectrum
leased by the spectrum lessee.
(2) General eligibility rules. (i) The spectrum lessee must meet the same
eligibility and qualification requirements that are applicable to the
licensee under its license authorization, with the following exceptions. A
spectrum lessee entering into a spectrum leasing arrangement involving a
licensee in the Educational Broadband Service ( see §27.1201 of this
chapter) is not required to comply with the eligibility requirements
pertaining to such a licensee so long as the spectrum lessee meets the other
eligibility and qualification requirements applicable to part 27 services (
see §27.12 of this chapter). A spectrum lessee entering into a spectrum
leasing arrangement involving a licensee in the Public Safety Radio Services
( see part 90, subpart B and §90.311(a)(1)(i) of this chapter) is not
required to comply with the eligibility requirements pertaining to such a
licensee so long as the spectrum lessee is an entity providing
communications in support of public safety operations ( see §90.523(b) of
this chapter).
(ii) The spectrum lessee must meet applicable foreign ownership eligibility
requirements ( see sections 310(a), 310(b) of the Communications Act).
(iii) The spectrum lessee must satisfy any qualification requirements,
including character qualifications, applicable to the licensee under its
license authorization.
(iv) The spectrum lessee must not be a person subject to the denial of
Federal benefits under the Anti-Drug Abuse Act of 1988 ( see §1.2001 et seq.
of subpart P of this part).
(v) The licensee may reasonably rely on the spectrum lessee's certifications
that it meets the requisite eligibility and qualification requirements
contained in the notification required by this section.
(3) Use restrictions. To the extent that the licensee is restricted from
using the licensed spectrum to offer particular services under its license
authorization, the use restrictions apply to the spectrum lessee as well.
(4) Designated entity/entrepreneur rules. A licensee that holds a license
pursuant to small business and/or entrepreneur provisions ( see §1.2110 and
§24.709 of this chapter) and continues to be subject to unjust enrichment
requirements ( see §1.2111 and §24.714 of this chapter) and/or transfer
restrictions ( see §24.839 of this chapter) may enter into a spectrum
manager leasing arrangement with a spectrum lessee, regardless of whether
the spectrum lessee meets the Commission's designated entity eligibility
requirements ( see §1.2110) or its entrepreneur eligibility requirements to
hold certain C and F block licenses in the broadband personal communications
services ( see §1.2110 and §24.709 of this chapter), so long as the spectrum
manager leasing arrangement does not result in the spectrum lessee's
becoming a “controlling interest” or “affiliate” ( see §1.2110) of the
licensee such that the licensee would lose its eligibility as a designated
entity or entrepreneur. To the extent there is any conflict between the
revised de facto control standard for spectrum leasing arrangements, as set
forth in this subpart, and the definition of controlling interest (including
its de facto control standard) set forth in §1.2110, the latter definition
governs for determining whether the licensee has maintained the requisite
degree of ownership and control to allow it to remain eligible for the
license or for other benefits such as bidding credits and installment
payments.
(5) Construction/performance requirements. Any performance or build-out
requirement applicable under a license authorization ( e.g., a requirement
that the licensee construct and operate one or more specific facilities,
cover a certain percentage of geographic area, cover a certain percentage of
population, or provide substantial service) always remains a condition of
the license, and legal responsibility for meeting such obligation is not
delegable to the spectrum lessee(s).
(i) The licensee may attribute to itself the build-out or performance
activities of its spectrum lessee(s) for purposes of complying with any
applicable performance or build-out requirement.
(ii) If a licensee relies on the activities of a spectrum lessee to meet the
licensee's performance or build-out obligation, and the spectrum lessee
fails to engage in those activities, the Commission will enforce the
applicable performance or build-out requirements against the licensee,
consistent with the applicable rules.
(iii) If there are rules applicable to the license concerning the
discontinuance of operation, the licensee is accountable for any such
discontinuance and the rules will be enforced against the licensee
regardless of whether the licensee was relying on the activities of a lessee
to meet particular performance requirements.
(6) Regulatory classification. If the regulatory status of the licensee (
e.g. , common carrier or non-common carrier status) is prescribed by rule,
the regulatory status of the spectrum lessee is prescribed in the same
manner, except that §20.9(a) of this chapter shall not preclude a licensee
in the services covered by that rule from entering into a spectrum leasing
arrangement with a spectrum lessee that chooses to operate on a Private
Mobile Radio Service (PMRS), private, or non-commercial basis.
(7) Regulatory fees. The licensee remains responsible for payment of the
required regulatory fees that must be paid in advance of its license term (
see §1.1152). Where, however, regulatory fees are paid annually on a
per-unit basis (such as for Commercial Mobile Radio Services (CMRS) pursuant
to §1.1152), the licensee and spectrum lessee are each required to pay fees
for those units associated with its respective operations.
(8) E911 requirements. If E911 obligations apply to the licensee ( see
§20.18 of this chapter), the licensee retains the obligations with respect
to leased spectrum.
(e) Notifications regarding spectrum manager leasing arrangements. A
licensee that seeks to enter into a spectrum manager leasing arrangement
must notify the Commission of the arrangement in advance of the spectrum
lessee's commencement of operations. The spectrum manager lease notification
will be processed pursuant either to the general notification procedures or
the immediate processing procedures, as set forth herein. The licensee must
submit the notification to the Commission by electronic filing using the
Universal Licensing System (ULS) and FCC Form 608, except that a licensee
falling within the provisions of §1.913(d) may file the notification either
electronically or manually.
(1) General notification procedures. Notifications of spectrum manager
leasing arrangements will be processed pursuant the general notification
procedures set forth in this paragraph unless they are submitted and qualify
for the immediate processing procedures set forth in paragraph (e)(2) of
this section.
(i) To be accepted under these general notification procedures, the
notification must be sufficiently complete and contain all information and
certifications requested on the applicable form, FCC Form 608, including any
information and certifications (including those of the spectrum lessee
relating to eligibility, basic qualifications, and foreign ownership)
required by the rules in this chapter and any rules pertaining to the
specific service for which the notification is filed. No application fees
are required for the filing of a spectrum manager leasing notification.
(ii) The licensee must submit such notification at least 21 days in advance
of commencing operations unless the arrangement is for a term of one year or
less, in which case the licensee must provide notification to the Commission
at least ten (10) days in advance of operation. If the licensee and spectrum
lessee thereafter seek to extend this leasing arrangement for an additional
term beyond the initial term, the licensee must provide the Commission with
notification of the new spectrum leasing arrangement at least 21 days in
advance of operation under the extended term.
(iii) A notification filed pursuant to these general notification procedures
will be placed on an informational public notice on a weekly basis ( see
§1.933(a)) once accepted, and is subject to reconsideration ( see
§§1.106(f), 1.108, 1.113).
(2) Immediate processing procedures. Notifications that meet the
requirements of paragraph (e)(2)(i) of this section qualify for the
immediate processing procedures.
(i) To qualify for these immediate processing procedures, the notification
must be sufficiently complete and contain all necessary information and
certifications (including those relating to eligibility, basic
qualifications, and foreign ownership) required for notifications processed
under the general notification procedures set forth in paragraph (e)(1)(i)
of this section, and also must establish, through certifications, that the
following additional qualifications are met:
(A) The license does not involve spectrum licensed in a Wireless Radio
Service that may be used to provide interconnected mobile voice and/or data
services under the applicable service rules and that would, if the spectrum
leasing arrangement were consummated, create a geographic overlap with
spectrum in any licensed Wireless Service (including the same service) in
which the proposed spectrum lessee already holds a direct or indirect
interest of 10% or more ( see §1.2112), either as a licensee or a spectrum
lessee, and that could be used by the spectrum lessee to provide
interconnected mobile voice and/or data services;
(B) The licensee is not a designated entity or entrepreneur subject to
unjust enrichment requirements and/or transfer restrictions under applicable
Commission rules ( see §§1.2110 and 1.2111, and §§24.709, 24.714, and 24.839
of this chapter); and,
(C) The spectrum leasing arrangement does not require a waiver of, or
declaratory ruling pertaining to, any applicable Commission rules.
(ii) Provided that the notification establishes that the proposed spectrum
manager leasing arrangement meets all of the requisite elements to qualify
for these immediate processing procedures, ULS will reflect that the
notification has been accepted. If a qualifying notification is filed
electronically, the acceptance will be reflected in ULS on the next business
day after filing of the notification; if filed manually, the acceptance will
be reflected in ULS on the next business day after the necessary data from
the manually filed notification is entered into ULS. Once the notification
has been accepted, as reflected in ULS, the spectrum lessee may commence
operations under the spectrum leasing arrangement, consistent with the term
of the arrangement.
(iii) A notification filed pursuant to these immediate processing procedures
will be placed on an informational public notice on a weekly basis ( see
§1.933(a)) once accepted, and is subject to reconsideration ( see
§§1.106(f), 1.108, 1.113).
(f) Effective date of a spectrum manager leasing arrangement. The spectrum
manager leasing arrangement will be deemed effective in the Commission's
records, and for purposes of the application of the rules set forth in this
section, as of the beginning date of the term as specified in the spectrum
leasing notification.
(g) Commission termination of a spectrum manager leasing arrangement. The
Commission retains the right to investigate and terminate any spectrum
manager leasing arrangement if it determines, post-notification, that the
arrangement constitutes an unauthorized transfer of de facto control of the
leased spectrum, is otherwise in violation of the rules in this chapter, or
raises foreign ownership, competitive, or other public interest concerns.
Information concerning any such termination will be placed on public notice.
(h) Expiration, extension, or termination of a spectrum leasing arrangement.
(1) Absent Commission termination or except as provided in paragraph (h)(2)
or (h)(3) of this section, a spectrum leasing arrangement entered into
pursuant to this section will expire on the termination date set forth in
the spectrum leasing notification.
(2) A spectrum leasing arrangement may be extended beyond the initial term
set forth in the spectrum leasing notification provided that the licensee
notifies the Commission of the extension in advance of operation under the
extended term and does so pursuant to the general notification procedures or
immediate processing procedures set forth in this section, whichever is
applicable. If the general notification procedures are applicable, the
licensee must notify the Commission at least 21 days in advance of operation
under the extended term.
(3) If a spectrum leasing arrangement is terminated earlier than the
termination date set forth in the notification, either by the licensee or by
the parties' mutual agreement, the licensee must file a notification with
the Commission, no later than ten (10) days after the early termination,
indicating the date of the termination. If the parties fail to put the
spectrum leasing arrangement into effect, they must so notify the Commission
consistent with the provisions of this section.
(4) The Commission will place information concerning an extension or an
early termination of a spectrum leasing arrangement on public notice.
(i) Assignment of a spectrum leasing arrangement. The spectrum lessee may
assign its spectrum leasing arrangement to another entity provided that the
licensee has agreed to such an assignment, is in privity with the assignee,
and notifies the Commission before the consummation of the assignment,
pursuant to the applicable notification procedures set forth in this
section. In the case of a non-substantial ( pro forma ) assignment that
falls within the class of pro forma transactions for which prior Commission
approval would not be required under §1.948(c)(1), the licensee must file
notification of the assignment with the Commission, using FCC Form 608 and
providing any necessary updates of ownership information, within 30 days of
its completion. The Commission will place information related to the
assignment, whether substantial or pro forma, on public notice.
(j) Transfer of control of a spectrum lessee. The licensee must notify the
Commission of any transfer of control of a spectrum lessee before the
consummation of the transfer of control, pursuant to the applicable
notification procedures of this section. In the case of a non-substantial (
pro forma ) transfer of control that falls within the class of pro forma
transactions for which prior Commission approval would not be required under
§1.948(c)(1), the licensee must file notification of the transfer of control
with the Commission, using FCC Form 608 and providing any necessary updates
of ownership information, within 30 days of its completion. The Commission
will place information related to the transfer of control, whether
substantial or pro forma, on public notice.
(k) Revocation or automatic cancellation of a license or a spectrum lessee's
operating authority. (1) In the event an authorization held by a licensee
that has entered into a spectrum leasing arrangement is revoked or
cancelled, the spectrum lessee will be required to terminate its operations
no later than the date on which the licensee ceases to have any authority to
operate under the license, except as provided in paragraph (j)(2) of this
section.
(2) In the event of a license revocation or cancellation, the Commission
will consider a request by the spectrum lessee for special temporary
authority ( see §1.931) to provide the spectrum lessee with an opportunity
to transition its users in order to minimize service disruption to business
and other activities.
(3) In the event of a license revocation or cancellation, and the required
termination of the spectrum lessee's operations, the former spectrum lessee
does not, as a result of its former status, receive any preference over any
other party should the spectrum lessee seek to obtain the revoked or
cancelled license.
(l) Subleasing. A spectrum lessee may sublease the leased spectrum usage
rights subject to the licensee's consent and the licensee's establishment of
privity with the spectrum sublessee. The licensee must submit a notification
regarding the spectrum subleasing arrangement in accordance with the
applicable notification procedures set forth in this section.
(m) Renewal. Although the term of a spectrum manager leasing arrangement may
not be longer than the term of a license authorization, a licensee and
spectrum lessee that have entered into an arrangement whose term continues
to the end of the current term of the license authorization may, contingent
on the Commission's grant of the license renewal, renew the spectrum leasing
arrangement to extend into the term of the renewed license authorization.
The Commission must be notified of the renewal of the spectrum leasing
arrangement at the same time that the licensee submits its application for
license renewal ( see §1.949). The spectrum lessee may operate under the
extended term, without further action by the Commission, until such time as
the Commission shall make a final determination with respect to the renewal
of the license authorization and the extension of the spectrum leasing
arrangement into the term of the renewed license authorization.
[ 68 FR 66277 , Nov. 25, 2003, as amended at 69 FR 72027 , Dec. 10, 2004; 69 FR 77551 , Dec. 27, 2004]
Effective Date Note: At 69 FR 77551 , Dec. 27, 2004, §1.9020(e)(2) was
revised. This paragraph contains information collection and recordkeeping
requirements and will not become effective until approval has been given by
the Office of Management and Budget.
§ 1.9030 Long-term de facto transfer leasing arrangements.
top
(a) Overview. Under the provisions of this section, a licensee (in any of
the included services) and a spectrum lessee may enter into a long-term de
facto transfer leasing arrangement in which the licensee retains de jure
control of the license while de facto control of the leased spectrum is
transferred to the spectrum lessee for the duration of the spectrum leasing
arrangement, subject to prior Commission consent pursuant to the application
procedures set forth in this section. A “long-term” de facto transfer
leasing arrangement has an individual term, or series of combined terms, of
more than one year. The term of a long-term de facto transfer leasing
arrangement may be no longer than the term of the license authorization.
(b) Rights and responsibilities of the licensee. (1) Except as provided in
paragraph (b)(2) of this section, the licensee is relieved of primary and
direct responsibility for ensuring that the spectrum lessee's operations
comply with the Communications Act and Commission policies and rules.
(2) The licensee is responsible for its own violations, including those
related to its spectrum leasing arrangement with the spectrum lessee, and
for ongoing violations or other egregious behavior on the part of the
spectrum lessee about which the licensee has knowledge or should have
knowledge.
(3) The licensee must retain a copy of the spectrum leasing agreement and
make it available upon request by the Commission.
(c) Rights and responsibilities of the spectrum lessee. (1) The spectrum
lessee assumes primary responsibility for complying with the Communications
Act and applicable Commission policies and rules.
(2) The spectrum lessee is granted an instrument of authorization pertaining
to the de facto transfer leasing arrangement that brings it within the scope
of the Commission's direct forfeiture provisions under section 503(b) of the
Communications Act.
(3) The spectrum lessee is responsible for interacting with the Commission
regarding the leased spectrum and for making all related filings ( e.g., all
applications and notifications, submissions of any materials required to
support a required Environmental Assessment, any reports required by
Commission rules and applicable to the lessee, information necessary to
facilitate international or Interdepartment Radio Advisory Committee (IRAC)
coordination).
(4) The spectrum lessee is required to maintain accurate information on file
pursuant to Commission rules ( see §1.65 of subpart A of this part).
(5) The spectrum lessee must retain a copy of the spectrum leasing agreement
and make it available upon request by the Commission.
(d) Applicability of particular service rules and policies. Under a
long-term de facto transfer leasing arrangement, the service rules and
policies apply in the following manner to the licensee and spectrum lessee:
(1) Interference-related rules. The interference and radiofrequency (RF)
safety rules applicable to use of the spectrum by the licensee as a
condition of its license authorization also apply to the use of the spectrum
leased by the spectrum lessee.
(2) General eligibility rules. (i) The spectrum lessee must meet the same
eligibility and qualification requirements that are applicable to the
licensee under its license authorization. A spectrum lessee entering into a
spectrum leasing arrangement involving a licensee in the Educational
Broadband Service ( see §27.1201 of this chapter) is not required to comply
with the eligibility requirements pertaining to such a licensee so long as
the spectrum lessee meets the other eligibility and qualification
requirements applicable to part 27 services ( see §27.12 of this chapter). A
spectrum lessee entering into a spectrum leasing arrangement involving a
licensee in the Public Safety Radio Services ( see part 90, subpart B and
§90.311(a)(1)(i) of this chapter) is not required to comply with the
eligibility requirements pertaining to such a licensee so long as the
spectrum lessee is an entity providing communications in support of public
safety operations ( see §90.523(b) of this chapter).
(ii) The spectrum lessee must meet applicable foreign ownership eligibility
requirements (see sections 310(a), 310(b) of the Communications Act).
(iii) The spectrum lessee must satisfy any qualification requirements,
including character qualifications, applicable to the licensee under its
license authorization.
(iv) The spectrum lessee must not be a person subject to denial of Federal
benefits under the Anti-Drug Abuse Act of 1988 ( see §1.2001 et seq. of
subpart P of this part).
(3) Use restrictions. To the extent that the licensee is restricted from
using the licensed spectrum to offer particular services under its license
authorization, the use restrictions apply to the spectrum lessee as well.
(4) Designated entity/entrepreneur rules. (i) A licensee that holds a
license pursuant to small business and/or entrepreneur provisions ( see
§1.2110 and §24.709 of this chapter) and continues to be subject to unjust
enrichment requirements ( see §1.2111 and §24.714 of this chapter) and/or
transfer restrictions ( see §24.839 of this chapter) may enter into a
long-term de facto transfer leasing arrangement with any entity under the
streamlined processing procedures described in this section, subject to any
applicable unjust enrichment payment obligations and/or transfer
restrictions ( see §1.2111 and §24.839 of this chapter).
(ii) A licensee holding a license won in closed bidding ( see §24.709 of
this chapter) may, during the first five years of the license term, enter
into a spectrum leasing arrangement with an entity not eligible to hold such
a license pursuant to the requirements of §24.709(a) of this chapter so long
as it has met its five-year construction requirement ( see §§24.203,
24.839(a)(6) of this chapter).
(iii) The amount of any unjust enrichment payment will be determined by the
Commission as part of its review of the application under the same rules
that apply in the context of a license assignment or transfer of control (
see §1.2111 and §24.714 of this chapter). If the spectrum leasing
arrangement involves only part of the license area and/or part of the
bandwidth covered by the license, the unjust enrichment obligation will be
apportioned as though the license were being partitioned and/or
disaggregated ( see §1.2111(e) and §24.714(c) of this chapter). A licensee
will receive no reduction in its unjust enrichment payment obligation for a
spectrum leasing arrangement that ends prior to the end of the fifth year of
the license term.
(iv) A licensee that participates in the Commission's installment payment
program ( see §1.2110(g) may enter into a long-term de facto transfer
leasing arrangement without triggering unjust enrichment obligations
provided that the lessee would qualify for as favorable a category of
installment payments. A licensee using installment payment financing that
seeks to lease to an entity not meeting the eligibility standards for as
favorable a category of installment payments must make full payment of the
remaining unpaid principal and any unpaid interest accrued through the
effective date of the spectrum leasing arrangement ( see §1.2111(c)). This
requirement applies regardless of whether the licensee is leasing all or a
portion of its bandwidth and/or license area.
(5) Construction/performance requirements. Any performance or build-out
requirement applicable under a license authorization ( e.g. , a requirement
that the licensee construct and operate one or more specific facilities,
cover a certain percentage of geographic area, cover a certain percentage of
population, or provide substantial service) always remains a condition of
the license, and the legal responsibility for meeting such obligation is not
delegable to the spectrum lessee(s).
(i) The licensee may attribute to itself the build-out or performance
activities of its spectrum lessee(s) for purposes of complying with any
applicable build-out or performance requirement.
(ii) If a licensee relies on the activities of a spectrum lessee to meet the
licensee's performance or build-out obligation, and the spectrum lessee
fails to engage in those activities, the Commission will enforce the
applicable performance or build-out requirements against the licensee,
consistent with the applicable rules.
(iii) If there are rules applicable to the license concerning the
discontinuance of operation, the licensee is accountable for any such
discontinuance and the rules will be enforced against the licensee
regardless of whether the licensee was relying on the activities of a lessee
to meet particular performance requirements.
(6) Regulatory classification. If the regulatory status of the licensee (
e.g. , common carrier or non-common carrier status) is prescribed by rule,
the regulatory status of the spectrum lessee is prescribed in the same
manner, except that §20.9(a) of this chapter shall not preclude a licensee
in the services covered by that rule from entering into a spectrum leasing
arrangement with a spectrum lessee that chooses to operate on a PMRS,
private, or non-commercial basis.
(7) Regulatory fees. The licensee remains responsible for payment of the
required regulatory fees that must be paid in advance of its license term (
see §1.1152). Where, however, regulatory fees are paid annually on a
per-unit basis (such as for CMRS services pursuant to §1.1152), the licensee
and spectrum lessee each are required to pay fees for those units associated
with its respective operations.
(8) E911 requirements. To the extent the licensee is required to meet E911
obligations ( see §20.18 of this chapter), the spectrum lessee is required
to meet those obligations with respect to the spectrum leased under the
spectrum leasing arrangement insofar as the spectrum lessee's operations are
encompassed within the E911 obligations.
(e) Applications for long-term de facto transfer leasing arrangements.
Applications for long-term de facto transfer leasing arrangements will be
processed either pursuant to the general approval procedures or the
immediate approval procedures, as discussed herein. Spectrum leasing parties
must submit the application by electronic filing using ULS and FCC Form 608,
and obtain Commission consent prior to consummating the transfer of de facto
control of the leased spectrum, except that parties falling within the
provisions of §1.913(d) may file the application either electronically or
manually.
(1) General approval procedures. Applications for long-term de facto
transfer leasing arrangements will be processed pursuant to the general
approval procedures set forth in this paragraph unless they are submitted
and qualify for the immediate approval procedures set forth in paragraph
(e)(2) of this section.
(i) To be accepted for filing under these general approval procedures, the
application must be sufficiently complete and contain all information and
certifications requested on the applicable form, FCC Form 608, including any
information and certifications (including those of the spectrum lessee
relating to eligibility, basic qualifications, and foreign ownership)
required by the rules in this chapter and any rules pertaining to the
specific service for which the application is filed. In addition, the
spectrum leasing application must include payment of the required
application fee(s); for purposes of determining the applicable application
fee(s), the application will be treated as a transfer of control ( see
§1.1102).
(ii) Once accepted for filing, the application will be placed on public
notice, except no prior public notice will be required for applications
involving authorizations in the Private Wireless Services, as specified in
§1.933(d)(9).
(iii) Petitions to deny filed in accordance with section 309(d) of the
Communications Act must comply with the provisions of §1.939, except that
such petitions must be filed no later than 14 days following the date of the
public notice listing the application as accepted for filing.
(iv) No later than 21 days following the date of the public notice listing
an application as accepted for filing, the Wireless Telecommunications
Bureau (Bureau) will affirmatively consent to the application, deny the
application, or determine to subject the application to further review. For
applications for which no prior public notice is required, the Bureau will
affirmatively consent to the application, deny the application, or determine
to subject the application to further review no later than 21 days following
the date on which the application has been filed and any required
application fee has been paid ( see §1.1102).
(v) If the Bureau determines to subject the application to further review,
it will issue a public notice so indicating. Within 90 days following the
date of that public notice, the Bureau will either take action upon the
application or provide public notice that an additional 90-day period for
review is needed.
(vi) Consent to the application is not deemed granted until the Bureau
affirmatively acts upon the application.
(vii) Grant of consent to the application will be reflected in a public
notice ( see §1.933(a)) promptly issued after the grant, and is subject to
reconsideration ( see §§1.106(f), 1.108, 1.113).
(viii) If any petition to deny is filed, and the Bureau grants the
application, the Bureau will deny the petition(s) and issue a concise
statement of the reason(s) for denial, disposing of all substantive issues
raised in the petition(s).
(2) Immediate approval procedures. Applications that meet the requirements
of paragraph (e)(2)(i) of this section qualify for the immediate approval
procedures.
(i) To qualify for the immediate approval procedures, the application must
be sufficiently complete, contain all necessary information and
certifications (including those relating to eligibility, basic
qualifications, and foreign ownership), and include payment of the requisite
application fee(s), as required for an application processed under the
general approval procedures set forth in paragraph (e)(1)(i) of this
section, and also must establish, through certifications, that the following
additional qualifications are met:
(A) The license does not involve spectrum licensed in a Wireless Radio
Service that may be used to provide interconnected mobile voice and/or data
services under the applicable service rules and that would, if the spectrum
leasing arrangement were consummated, create a geographic overlap with
spectrum in any licensed Wireless Service (including the same service) in
which the proposed spectrum lessee already holds a direct or indirect
interest of 10% or more ( see §1.2112), either as a licensee or a spectrum
lessee, and that could be used by the spectrum lessee to provide
interconnected mobile voice and/or data services;
(B) The licensee is not a designated entity or entrepreneur subject to
unjust enrichment requirements and/or transfer restrictions under applicable
Commission rules ( see §§1.2110 and 1.2111, and §§24.709, 24.714, and 24.839
of this chapter); and,
(C) The spectrum leasing arrangement does not require a waiver of, or
declaratory ruling pertaining to, any applicable Commission rules.
(ii) Provided that the application establishes that it meets all of the
requisite elements to qualify for these immediate approval procedures,
consent to the de facto transfer spectrum leasing arrangement will be
reflected in ULS. If the application is filed electronically, consent will
be reflected in ULS on the next business day after filing of the
application; if filed manually, consent will be reflected in ULS on the next
business day after the necessary data from the manually filed application is
entered into ULS. Consent to the application is not deemed granted until the
Bureau affirmatively acts upon the application, as reflected in ULS.
(iii) Grant of consent to the application under these immediate approval
procedures will be reflected in a public notice ( see §1.933(a)) promptly
issued after grant, and is subject to reconsideration ( see §§1.106(f),
1.108, 1.113).
(f) Effective date of a de facto transfer leasing arrangement. If the
Commission consents to the de facto transfer leasing arrangement, the de
facto transfer leasing arrangement will be deemed effective in the
Commission's records, and for purposes of the application of the rules set
forth in this section, on the date set forth in the application. If the
Commission consents to the arrangement after that specified date, the
spectrum leasing application will become effective on the date of the
Commission affirmative consent.
(g) Expiration, extension, or termination of spectrum leasing arrangement.
(1) Except as provided in paragraph (g)(2) or (g)(3) of this section, a
spectrum leasing arrangement entered into pursuant to this section will
expire on the termination date set forth in the application. The
Commission's consent to the de facto transfer leasing application includes
consent to return the leased spectrum to the licensee at the end of the term
of the spectrum leasing arrangement.
(2) A spectrum leasing arrangement may be extended beyond the initial term
set forth in the spectrum leasing application pursuant to the applicable
application procedures set forth in §1.9030(e). Where there is pending
before the Commission at the date of termination of the spectrum leasing
arrangement a proper and timely application seeking to extend the
arrangement, the parties may continue to operate under the original spectrum
leasing arrangement without further action by the Commission until such time
as the Commission shall make a final determination with respect to the
application.
(3) If a spectrum leasing arrangement is terminated earlier than the
termination date set forth in the notification, either by the licensee or by
the parties' mutual agreement, the licensee must file a notification with
the Commission, no later than ten (10) days after the early termination,
indicating the date of the termination. If the parties fail to put the
spectrum leasing arrangement into effect, they must so notify the Commission
consistent with the provisions of this section.
(4) The Commission will place information concerning an extension or an
early termination of a spectrum leasing arrangement on public notice.
(h) Assignment of spectrum leasing arrangement. The spectrum lessee may
assign its lease to another entity provided that the licensee has agreed to
such an assignment, there is privity between the licensee and the assignee,
and the assignment is approved by the Commission pursuant to the same
application and approval procedures set forth in this section. In the case
of a non-substantial ( pro forma ) assignment that falls within the class of
pro forma transactions for which prior Commission approval would not be
required under §1.948(c)(1), the parties involved in the assignment must
file notification of the assignment with the Commission, using FCC Form 608
and providing any necessary updates of ownership information, within 30 days
of its completion. The Commission will place information related to the
assignment, whether substantial or pro forma , on public notice.
(i) Transfer of control of a spectrum lessee. A spectrum lessee seeking the
transfer of control must obtain Commission consent using the same
application and Commission consent procedures set forth in this section. In
the case of a non-substantial ( pro forma ) transfer of control that falls
within the class of pro forma transactions for which prior Commission
approval would not be required under §1.948(c)(1), the parties involved in
the transfer of control must file notification of the transfer of control
with the Commission, using FCC Form 608 and providing any necessary updates
of ownership information, within 30 days of its completion. The Commission
will place information related to the transfer of control, whether
substantial or pro forma, on public notice.
(j) Revocation or automatic cancellation of a license or the spectrum
lessee's operating authority. (1) In the event an authorization held by a
licensee that has entered into a spectrum leasing arrangement is revoked or
cancelled, the spectrum lessee will be required to terminate its operations
no later than the date on which the licensee ceases to have authority to
operate under the license, except as provided in paragraph (i)(2) of this
section.
(2) In the event of a license revocation or cancellation, the Commission
will consider a request by the spectrum lessee for special temporary
authority ( see §1.931) to provide the spectrum lessee with an opportunity
to transition its users in order to minimize service disruption to business
and other activities.
(3) In the event of a license revocation or cancellation, and the required
termination of the spectrum lessee's operations, the former spectrum lessee
does not, as a result of its former status, receive any preference over any
other party should the spectrum lessee seek to obtain the revoked or
cancelled license.
(k) Subleasing. A spectrum lessee may sublease spectrum usage rights subject
to the following conditions. Parties entering into a spectrum subleasing
arrangement are required to comply with the Commission's rules for obtaining
approval for spectrum leasing arrangements provided in this subpart and are
governed by those same policies. The application filed by parties to a
spectrum subleasing arrangement must include written consent from the
licensee to the proposed arrangement. Once a spectrum subleasing arrangement
has been approved by the Commission, the sublessee becomes the party
primarily responsible for compliance with Commission rules and policies.
(l) Renewal. Although the term of a long-term de facto transfer spectrum
leasing arrangement may not be longer than the term of a license
authorization, a licensee and spectrum lessee that have entered into an
arrangement whose term continues to the end of the current term of the
license authorization may, contingent on the Commission's grant of the
license renewal, extend the spectrum leasing arrangement into the term of
the renewed license authorization. The Commission must be notified of the
renewal of the spectrum leasing arrangement at the same time that the
licensee submits its application for license renewal ( see §1.949). The
spectrum lessee may operate under the extended term, without further action
by the Commission, until such time as the Commission shall make a final
determination with respect to the renewal of the license authorization and
the extension of the spectrum leasing arrangement into the term of the
renewed license authorization.
[ 68 FR 66277 , Nov. 25, 2003, as amended at 69 FR 72027 , Dec. 10, 2004; 69 FR 77554 , Dec. 27, 2004]
Effective Date Note: At 69 FR 77554 , Dec. 27, 2004, §1.9030(e) was
revised. This paragraph contains information collection and recordkeeping
requirements and will not become effective until approval has been given by
the Office of Management and Budget.
§ 1.9035 Short-term de facto transfer leasing arrangements.
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(a) Overview. Under the provisions of this section, a licensee (in any of
the included services) and a spectrum lessee may enter into a short-term de
facto transfer leasing arrangement in which the licensee retains de jure
control of the license while de facto control of the leased spectrum is
transferred to the spectrum lessee for the duration of the spectrum leasing
arrangement, subject to prior Commission consent pursuant to the application
procedures set forth in this section. A “short-term” de facto transfer
leasing arrangement has an individual or combined term of not longer than
one year. The term of a short-term de facto transfer leasing arrangement may
be no longer than the term of the license authorization.
(b) Rights and responsibilities of licensee. The rights and responsibilities
applicable to a licensee that enters into a short-term de facto transfer
leasing arrangement are the same as those applicable to a licensee that
enters into a long-term de facto transfer leasing arrangement, as set forth
in §1.9030(b).
(c) Rights and responsibilities of spectrum lessee. The rights and
responsibilities applicable to a spectrum lessee that enters into a
short-term de facto transfer leasing arrangement are the same as those
applicable to a spectrum lessee that enters into a long-term de facto
transfer leasing arrangement, as set forth in §1.9030(c).
(d) Applicability of particular service rules and policies. Under a
short-term de facto leasing arrangement, the service rules and policies
apply to the licensee and spectrum lessee in the same manner as under
long-term de facto transfer leasing arrangements ( see §1.9030(d)), except
as provided herein:
(1) Use restrictions and regulatory classification. Use restrictions
applicable to the licensee also apply to the spectrum lessee except that
§20.9(a) of this chapter shall not preclude a licensee in the services
covered by that rule from entering into a spectrum leasing arrangement with
a spectrum lessee that chooses to operate on a PMRS, private, or
non-commercial basis, and except that a licensee with an authorization that
restricts use of spectrum to non-commercial uses may enter into a short-term
de facto transfer leasing arrangement that allows the spectrum lessee to use
the spectrum commercially.
(2) Designated entity/entrepreneur rules. Unjust enrichment provisions ( see
§1.2111) and transfer restrictions ( see §24.839 of this chapter) do not
apply with regard to a short-term de facto transfer leasing arrangement.
(3) Construction/performance requirements. The licensee is not permitted to
attribute to itself the activities of its spectrum lessee when seeking to
establish that performance or build-out requirements applicable to the
licensee have been met.
(4) E911 requirements. If E911 obligations apply to the licensee (see §20.18
of this chapter), the licensee retains the obligations with respect to
leased spectrum. A spectrum lessee entering into a short-term de facto
transfer leasing arrangement is not separately required to comply with any
such obligations in relation to the leased spectrum.
(e) Spectrum leasing application. Short-term de facto transfer leasing
arrangements will be processed pursuant to immediate approval procedures, as
discussed herein. Parties entering into a short-term de facto transfer
leasing arrangement are required to file an electronic application with the
Commission, using FCC Form 608, and obtain Commission consent prior to
consummating the transfer of de facto control of the leased spectrum, except
that parties falling within the provisions of §1.913(d) may file the
application either electronically or manually.
(1) To be accepted for filing under these immediate approval procedures, the
application must be sufficiently complete and contain all information and
certifications requested on the applicable form, FCC Form 608, including any
information and certifications (including those relating to the spectrum
lessee relating to eligibility, basic qualifications, and foreign ownership)
required by the rules of this chapter and any rules pertaining to the
specific service for which the application is required. In addition, the
application must include payment of the required application fee; for
purposes of determining the applicable application fee, the application will
be treated as a transfer of control ( see §1.1102). Finally, the spectrum
leasing arrangement must not require a waiver of, or declaratory ruling,
pertaining to any applicable Commission rules.
(2) Provided that the application establishes that it meets all of the
requisite elements to qualify for these immediate approval procedures,
consent to the short-term de facto transfer spectrum leasing arrangement
will be reflected in ULS. If the application is filed electronically,
consent will be reflected in ULS on the next business day after filing of
the application; if filed manually, consent will be reflected in ULS on the
next business day after the necessary data from the manually filed
application is entered into ULS. Consent to the application is not deemed
granted until the Bureau affirmatively acts upon the application, as
reflected in ULS.
(3) Grant of consent to the application under these procedures will be
reflected in a public notice ( see §1.933(a)) promptly issued after grant,
and is subject to reconsideration ( see §§1.106(f), 1.108, 1.113).
(f) Effective date of spectrum leasing arrangement. The spectrum leasing
arrangement will be deemed effective in the Commission's records, and for
purposes of the application of the rules set forth in this section, on the
date set forth in the application. If the Commission consents to the
arrangement after that specified date, the spectrum leasing application will
become effective on the date of the Commission affirmative consent.
(g) Restrictions on the use of short-term de facto transfer leasing
arrangements. (1) The licensee and spectrum lessee are not permitted to use
the special rules and expedited procedures applicable to short-term de facto
transfer leasing arrangements for arrangements that in fact will exceed one
year, or that the parties reasonably expect to exceed one year.
(2) The licensee and spectrum lessee must submit, in sufficient time prior
to the expiration of the short-term de facto transfer spectrum leasing
arrangement, the appropriate application under the rules and procedures
applicable to long-term de facto leasing arrangements, and obtain Commission
consent pursuant to those procedures.
(h) Expiration, extension, or termination of the spectrum leasing
arrangement. (1) Except as provided in paragraph (h)(2) or (h)(3) of this
section, a spectrum leasing arrangement entered into pursuant to this
section will expire on the termination date set forth in the short-term de
facto transfer leasing arrangement. The Commission's approval of the
short-term de facto transfer leasing application includes consent to return
the leased spectrum to the licensee at the end of the term of the spectrum
leasing arrangement.
(2) Upon proper application ( see paragraph (e) of this section), a
short-term de facto transfer leasing arrangement may be extended beyond the
initial term set forth in the application provided that the initial term and
extension(s) together would not result in a leasing arrangement that exceeds
a total of one year.
(3) If a spectrum leasing arrangement is terminated earlier than the
termination date set forth in the notification, either by the licensee or by
the parties' mutual agreement, the licensee must file a notification with
the Commission, no later than ten (10) days after the early termination,
indicating the date of the termination. If the parties fail to put the
spectrum leasing arrangement into effect, they must so notify the Commission
consistent with the provisions of this section.
(i) Conversion of a short-term spectrum leasing arrangement into a long-term
de facto transfer leasing arrangement. (1) In the event the licensee and
spectrum lessee involved in a short-term de facto transfer leasing
arrangement seek to extend the spectrum leasing arrangement beyond the
one-year limit for short-term de facto transfer leasing arrangements, the
parties may do so provided that they meet the conditions set forth in
paragraphs (i)(2) and (i)(3) of this section.
(2) If a licensee that holds a license that continues to be subject to
transfer restrictions and/or requirements relating to unjust enrichment
pursuant to the Commission's small business and/or entrepreneur provisions (
see §1.2110 and §24.709 of this chapter) seeks to extend a short-term de
facto transfer leasing arrangement with its spectrum lessee (or related
entities, as determined pursuant to §1.2110(b)(2)) beyond one year, it may
convert its arrangement into a long-term de facto transfer spectrum leasing
arrangement provided that it complies with the procedures for entering into
a long-term de facto transfer leasing arrangement and that it pays any
unjust enrichment that would have been owed had the licensee filed a
long-term de facto transfer spectrum leasing application at the time it
applied for the initial short-term de facto transfer leasing arrangement.
(3) The licensee and spectrum lessee are not permitted to convert a
short-term de facto transfer leasing arrangement into a long-term de facto
transfer leasing arrangement if the parties would have been restricted, in
the first instance, from entering into a long-term de facto transfer leasing
arrangement because of a transfer, use, or other restriction applicable to
the particular service ( see §1.9030).
(j) Assignment of spectrum leasing arrangement. The rule applicable to
long-term de facto transfer leasing arrangements ( see §1.9030(g)) applies
in the same manner to short-term de facto transfer leasing arrangements.
(k) Transfer of control of spectrum lessee. The rule applicable to long-term
de facto transfer leasing arrangements ( see §1.9030(h)) applies in the same
manner to short-term de facto transfer leasing arrangements.
(l) Revocation or automatic cancellation of a license or the spectrum
lessee's operating authority. The rule applicable to long-term de facto
transfer leasing arrangements (see §1.9030(i)) applies in the same manner to
short-term de facto transfer leasing arrangements.
(m) Subleasing. A spectrum lessee that has entered into a short-term de
facto transfer leasing arrangement is not permitted to enter into a spectrum
subleasing arrangement.
(n) Renewal. The rule applicable with regard to long-term de facto transfer
leasing arrangements ( see §1.9030(l)) applies in the same manner to
short-term de facto transfer leasing arrangements, except that the renewal
of the short-term de facto transfer leasing arrangement to extend into the
term of the renewed license authorization cannot enable the combined terms
of the short-term de facto transfer leasing arrangements to exceed one year.
The Commission must be notified of the renewal of the spectrum leasing
arrangement at the same time that the licensee submits its application for
license renewal ( see §1.949).
[ 68 FR 66277 , Nov. 25, 2003, as amended at 69 FR 77557 , Dec. 27, 2004]
Effective Date Note: At 69 FR 77557 , Dec. 27, 2004, §1.9035(e) was
revised. This paragraph contains information collection and recordkeeping
requirements and will not become effective until approval has been given by
the Office of Management and Budget.
§ 1.9040 Contractual requirements applicable to spectrum leasing
arrangements.
top
(a) Agreements between licensees and spectrum lessees concerning spectrum
leasing arrangements entered into pursuant to the rules of this subpart must
contain the following provisions:
(1) The spectrum lessee must comply at all times with applicable rules set
forth in this chapter and other applicable law, and the spectrum leasing
arrangement may be revoked, cancelled, or terminated by the licensee or
Commission if the spectrum lessee fails to comply with the applicable
requirements;
(2) If the license is revoked, cancelled, terminated, or otherwise ceases to
be in effect, the spectrum lessee has no continuing authority or right to
use the leased spectrum unless otherwise authorized by the Commission;
(3) The spectrum leasing arrangement is not an assignment, sale, or transfer
of the license itself;
(4) The spectrum leasing arrangement shall not be assigned to any entity
that is ineligible or unqualified to enter into a spectrum leasing
arrangement under the applicable rules as set forth in this subpart;
(5) The licensee shall not consent to an assignment of a spectrum leasing
arrangement unless such assignment complies with applicable Commission rules
and regulations.
(b) Agreements between licensees that hold licenses subject to the
Commission's installment payment program ( see §1.2110 of subpart Q of this
part and related service-specific rules) and spectrum lesseeys must contain
the following additional provisions:
(1) The express acknowledgement that the license remains subject to the
Commission's priority lien and security interest in the license and related
proceeds, consistent with the provisions set forth in §1.9045; and
(2) The agreement that the spectrum lessee shall not hold itself out to the
public as the holder of the license and shall not hold itself out as a
licensee by virtue of its having entered into a spectrum leasing
arrangement.
§ 1.9045 Requirements for spectrum leasing arrangements entered into by
licensees participating in the installment payment program.
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(a) If a licensee that holds a license subject to the Commission's
installment payment program ( see §1.2110 of subpart Q of this part and
related service-specific rules) enters into a spectrum leasing arrangement
pursuant to the rules in this subpart, the licensee remains fully and solely
responsible for the outstanding debt amount owed to the Commission. Nothing
in a spectrum leasing arrangement, or arising from a spectrum lessee's
bankruptcy or receivership, can modify the licensee's sole responsibility
for its obligation to repay its entire debt obligation under the installment
payment program pursuant to applicable Commission rules and regulations and
the associated note(s) and security agreement(s).
(b) If a licensee holds a license subject to the installment payment program
rules ( see §1.2110 and related service-specific rules), the licensee and
any spectrum lessee must execute the Commission-approved financing
documents. No licensee or potential spectrum lessee may file a spectrum
leasing notification or application without having first executed such
Commission-approved financing documentation. In addition, they must certify
in the spectrum leasing notification or application that they have both
executed such documentation.
[ 68 FR 66277 , Nov. 25, 2003, as amended at 69 FR 77558 , Dec. 27, 2004]
§ 1.9047 Special provisions relating to leases of educational broadband
service spectrum.
top
Licensees in the Educational Broadcasting Service may enter into spectrum
leasing arrangements with spectrum lessees only insofar as such arrangements
comply with the applicable requirements for spectrum leasing arrangements
involving spectrum in that service as set forth in §27.1214 of this chapter
[ 69 FR 72027 , Dec. 10, 2004]
§ 1.9048 Special provisions relating to spectrum leasing arrangements
involving licensees in the Public Safety Radio Services.
top
Licensees in the Public Safety Radio Services ( see part 90, subpart B and
§90.311(a)(1)(i) of this chapter) may enter into spectrum leasing
arrangements with other public safety entities eligible for such a license
authorization as well as with entities providing communications in support
of public safety operations ( see §90.523(b) of this chapter).
[ 69 FR 77558 , Dec. 27, 2004]
§ 1.9050 Who may sign spectrum leasing notifications and applications.
top
Under the rules set forth in this subpart, certain notifications and
applications to the Commission must be filed by licensees and spectrum
lessees that enter into spectrum leasing arrangements. In addition, the
rules require that certain notifications and applications be filed by the
licensee and/or the spectrum lessee after they have entered into such
arrangements. Whether the signature of the licensee, the spectrum lessee, or
both, is required will depend on the particular notification or application
involved, and whether the leasing arrangement concerns a spectrum manager
leasing arrangement or a de facto transfer leasing arrangement.
(a) Except as provided in paragraph (b) of this section, the notifications,
applications, amendments, and related statements of fact required by the
Commission (including certifications) must be signed as follows (either
electronically or manually, see paragraph (d) of this section):
(1) By the licensee or spectrum lessee, if an individual;
(2) By one of the partners if the licensee or lessee is a partnership;
(3) By an officer, director, or duly authorized employee, if the licensee or
lessee is a corporation; or
(4) By a member who is an officer, if the licensee or lessee is an
unincorporated association.
(b) Notifications, applications, amendments, and related statements of fact
required by the Commission may be signed by the licensee or spectrum
lessee's attorney in case of the licensee's or lessee's physical disability
or absence from the United States. The attorney shall, when applicable,
separately set forth the reason why the application is not signed by the
licensee or lessee. In addition, if any matter is stated on the basis of the
attorney's belief only (rather than knowledge), the attorney shall
separately set forth the reasons for believing that such statements are
true. Only the original of notifications, applications, amendments, and
related statements of fact need be signed.
(c) Notifications, applications, amendments, and related statements of fact
need not be signed under oath. Willful false statements made therein,
however, are punishable by fine and imprisonment ( see 18 U.S.C. section
1001), and by appropriate administrative sanctions, including revocation of
license pursuant to section 312(a)(1) of the Communications Act of 1934 or
revocation of the spectrum leasing arrangement.
(d) “Signed,” as used in this section, means, for manually filed
notifications and applications only, an original hand-written signature or,
for electronically filed notifications and applications only, an electronic
signature. An electronic signature shall consist of the name of the licensee
or spectrum lessee transmitted electronically via ULS and entered on the
application as a signature.
§ 1.9055 Assignment of file numbers to spectrum leasing notifications and
applications.
top
Spectrum leasing notifications or applications submitted pursuant to the
rules of this subpart are assigned file numbers and service codes in order
to facilitate processing in the manner in which applications in subpart F
are assigned file numbers ( see §1.926 of subpart F of this part).
§ 1.9060 Amendments, waivers, and dismissals affecting spectrum leasing
notifications and applications.
top
(a) Notifications and applications regarding spectrum leasing arrangements
may be amended in accordance with the policies, procedures, and standards
applicable to applications as set forth in subpart F of this part ( see
§§1.927 and 1.929 of subpart F of this part).
(b) The Commission may waive specific requirements of the rules affecting
spectrum leasing arrangements and the use of leased spectrum, on its own
motion or upon request, in accordance with the policies, procedures, and
standards set forth in subpart F of this part ( see §1.925 of subpart F of
this part).
(c) Notifications and pending applications regarding spectrum leasing
arrangements may be dismissed in accordance with the policies, procedures,
and standards applicable to applications as set forth in subpart F of this
part ( see §1.935 of subpart F of this part).
§ 1.9080 Private commons.
top
(a) Overview. A “private commons” arrangement is an arrangement, distinct
from a spectrum leasing arrangement but permitted in the same services for
which spectrum leasing arrangements are allowed, in which a licensee or
spectrum lessee makes certain spectrum usage rights under a particular
license authorization available to a class of third-party users employing
advanced communications technologies that involve peer-to-peer
(device-to-device) communications and that do not involve use of the
licensee's or spectrum lessee's end-to-end physical network infrastructure (
e.g. , base stations, mobile stations, or other related elements). In a
private commons arrangement, the licensee or spectrum lessee authorizes
users of certain communications devices employing particular technical
parameters, as specified by the licensee or spectrum lessee, to operate
under the license authorization. A private commons arrangement differs from
a spectrum leasing arrangement in that, unlike spectrum leasing
arrangements, a private commons arrangement does not involve individually
negotiated spectrum access rights with entities that seek to provide
network-based services to end-users. A private commons arrangement does not
affect unlicensed operations in a particular licensed band to the extent
that they are permitted pursuant to part 15.
(b) Licensee/spectrum lessee responsibilities. As the manager of any private
commons, the licensee or spectrum lessee:
(1) Establishes the technical and operating terms and conditions of use by
users of the private commons, including those relating to the types of
communications devices that may be used within the private commons,
consistent with the terms and conditions of the underlying license
authorization;
(2) Retains de facto control of the use of spectrum by users within the
private commons, including maintaining reasonable oversight over the users'
use of the spectrum in the private commons so as to ensure that the use of
the spectrum, and communications equipment employed, comply with all
applicable technical and service rules (including requirements relating to
radiofrequency radiation) and maintaining the ability to ensure such
compliance; and,
(3) Retains direct responsibility for ensuring that the users of the private
commons, and the equipment employed, comply with all applicable technical
and service rules, including requirements relating to radiofrequency
radiation and requirements relating to interference.
(c) Notification requirements. Prior to permitting users to commence
operations within a private commons, the licensee or spectrum lessee must
notify the Commission, using FCC Form 608, that it is establishing a private
commons arrangement. This notification must include information that
describes: the location(s) or coverage area(s) of the private commons under
the license authorization; the term of the arrangement; the general terms
and conditions for users that would be gaining spectrum access to the
private commons; the technical requirements and equipment that the licensee
or spectrum lessee has approved for use within the private commons; and, the
types of communications uses that are to be allowed within the private
commons.
[ 69 FR 77558 , Dec. 27, 2004]
Effective Date Note: At 69 FR 77558 , Dec. 27, 2004, §1.9080 was added.
This section contains information collection and recordkeeping requirements
and will not become effective until approval has been given by the Office of
Management and Budget.
Subpart Y—International Bureau Filing System
top
Source: 69 FR 29895 , May 26, 2004, unless otherwise noted. Redesignated at
69 FR 40327 , July 2, 2004.
§ 1.10000 What is the purpose of these rules?
top
(a) These rules are issued under the Communications Act of 1934, as amended,
47 U.S.C. 151 et seq. , and the Submarine Cable Landing License Act, 47
U.S.C. 34–39.
(b) This subpart describes procedures for electronic filing of International
and Satellite Services applications using the International Bureau Filing
System.
(c) More licensing and application descriptions and directions, including
but not limited to specifying which International and Satellite service
applications must be filed electronically, are in parts 1, 25, 63, and 64 of
this chapter.
[ 69 FR 47793 , Aug. 6, 2004]
§ 1.10001 Definitions.
top
Application. A request for an earth or space station radio station license,
an international cable landing license, or an international service
authorization, or a request to amend a pending application or to modify or
renew licenses or authorizations. The term also includes the other requests
that may be filed in IBFS such as transfers of control and assignments of
license applications, earth station registrations, and foreign carrier
affiliation notifications.
Authorizations. Generally, a written document or oral statement issued by us
giving authority to operate or provide service.
International Bureau Filing System. The International Bureau Filing System
(IBFS) is a database, application filing system, and processing system for
all International and Satellite services. IBFS supports electronic filing of
many applications and related documents in the International Bureau, and
provides public access to this information.
International Services. All international services authorized under parts 1,
63 and 64 of this chapter.
Official Filing Date.
Satellite Space Station Applications (other than DBS and DARS) and
Applications for Earth Stations to Access a Non-U.S. Satellite Not Currently
Authorized to Provide the Proposed Service in the Proposed Frequencies in
the United States. We consider a Satellite Space Station application (other
than DBS and DARS) and an Application for an Earth Station to Access a
Non-U.S. Satellite Not Currently Authorized to Provide the Proposed Service
in the Proposed Frequencies in the United States officially filed the moment
you file them through IBFS. The system tracks the date and time of filing
(to the millisecond). For purposes of the queue discussed in §25.158 of this
chapter, we will base the order of the applications in the queue on the date
and time the applications are filed, rather than the “Official Filing
Date” as defined here.
All Other Applications. We consider all other applications officially filed
once you file the application in IBFS and applicable filing fees are
received and approved by the FCC, unless the application is determined to be
fee-exempt. We determine your official filing date based on one of the
following situations:
1. You file your Satellite Space Station Application (other than DBS and
DARS) or your Application for Earth Stations to Access a Non-U.S. Satellite
Not Currently Authorized to provide the Proposed Service in the Proposed
Frequencies in the United States in IBFS Your official filing date is the
date and time (to the millisecond) you file your application and receive a
confirmtion of filing and submission ID.
2. You file all other applications in IBFS and then do one of the following:
Your official filing date is:
Send your payment (via check, bank draft, money order, credit card, or wire
transfer) and FCC Form 159 to Mellon Bank The date Mellon Bank stamps your
payment as received.
Pay by online credit card (through IBFS). The date your online credit card
payment is approved. (Note: you will receive a remittance ID and an
authorization number if your transaction is successful).
Determine your application type is fee-exempt or your application qualifies
for exemption to charges as provided in Part 1 of the Commission's Rules The
date you file in IBFS and receive a confirmation of filing and submission
ID.
Satellite Services. All satellite services authorized under part 25 of this
chapter.
Submission ID. The Submission ID is the confirmation number you receive from
IBFS once you have successfully filed your application. It is also the
number we use to match your filing to your payment. Your IBFS Submission ID
will always start with the letters “IB” and include the year in which you
file as well as a sequential number, ( e.g., IB2003000123).
Us. In this subpart, “us” refers to the Commission.
We. In this subpart, “we” refers to the Commission.
You. In this subpart, “you” refers to applicants, licensees, your
representatives, or other entities authorized to provide services.
§ 1.10002 What happens if the rules conflict?
top
The rules concerning parts 1, 25, 63 and 64 of this chapter govern over the
electronic filing in this subpart.
§ 1.10003 When can I start operating?
top
You can begin operating your facility or providing services once we grant
your application to do so, under the conditions set forth in your license or
authorization.
§ 1.10004 What am I allowed to do if I am approved?
top
If you are approved and receive a license or authorization, you must operate
in accordance with, and not beyond, your terms of approval.
§ 1.10005 What is IBFS?
top
(a) The International Bureau Filing System (IBFS) is a database, application
filing system, and processing system for all International and Satellite
Services. IBFS supports electronic filing of many applications and related
documents in the International Bureau, and provides public access to this
information.
(b) We maintain applications, notifications, correspondence, and other
materials filed electronically with the International Bureau in IBFS.
§ 1.10006 Is electronic filing mandatory?
top
Electronic filing is mandatory for all applications for international and
satellite services for which an International Bureau Filing System (IBFS)
form is available. Applications for which an electronic form is not
available must be filed by paper until new forms are introduced. See §§63.20
and 63.53. As each new IBFS form becomes available for electronic filing,
the Commission will issue a public notice announcing the availability of the
new form and the effective date of mandatory filing for this particular type
of filing. As each new form becomes effective, manual filings will not be
accepted by the Commission and the filings will be returned to the applicant
without processing. Mandatory electronic filing requirements for
applications for international and satellite services are set forth in parts
1, 25, 63, and 64 of this chapter. A list of forms that are available for
electronic filing can be found on the IBFS homepage. For information on
electronic filing requirements, see part 1, §§1.1000 through 1.10018 and the
IBFS homepage at http://www.fcc.gov/ibfs.
[ 70 FR 38797 , July 6, 2005]
§ 1.10007 What applications can I file electronically?
top
(a) For a complete list of applications or notifications that must be filed
electronically, see the IBFS Web site at http://www.fcc.gov/ibfs.
(b) Many applications require exhibits or attachments. If attachments are
required, you must attach documentation to your electronic application
before filing. We accept attachments in the following formats: Word, Adobe
Acrobat, Excel and Text.
(c) For paper filing rules and procedures, see parts 1, 25, 63 or 64.
[ 69 FR 29895 , May 26, 2004. Redesignated at 69 FR 40327 , July 2, 2004.
Amended at 69 FR 47793 , Aug. 6, 2004; 70 FR 38797 , July 6, 2005]
§ 1.10008 What are IBFS file numbers?
top
(a) We assign file numbers to electronic applications in order to facilitate
processing.
(b) We only assign file numbers for administrative convenience; they do not
mean that an application is acceptable for filing.
(c) For a description of file number information, see The International
Bureau Filing System File Number Format Public Notice, DA–04–568 (released
February 27, 2004).
§ 1.10009 What are the steps for electronic filing?
top
(a) Step 1: Register for an FCC Registration Number (FRN). (See Subpart W,
§§1.8001 through 1.8004.)
(1) If you already have an FRN, go to Step 2.
(2) In order to process your electronic application, you must have an FRN.
You may obtain an FRN either directly from the Commission Registration
System (CORES) at http://www.fcc.gov/e-file/, or through IBFS as part of
your filing process. If you need to know more about who needs an FRN, visit
CORES at http://www.fcc.gov/e-file/.
(3) If you are a(n):
(i) Applicant,
(ii) Transferee and assignee,
(iii) Transferor and assignor,
(iv) Licensee/Authorization Holder, or
(v) Payer, you are required to have and use an FRN when filing applications
and/or paying fees through IBFS.
(4) We use your FRN to give you secured access to IBFS and to pre-fill the
application you file.
(a) Step 2: Register with IBFS.
(1) If you are already registered with IBFS, go to Step 3.
(2) In order to complete and file your electronic application, you must
register in IBFS, located at http://www.fcc.gov/ibfs.
(3) You can register your account in:
(i) Your name,
(ii) Your company's name, or
(iii) Your client's name.
(4) IBFS will issue you an account number as part of the registration
process. You will create your own password.
(5) If you forget your password, send an e-mail to the IBFS helpline at
ibfsinfo@fcc.gov or contact the helpline at (202) 418–2222 for assistance.
(c) Step 3: Log into IBFS, select the application you want to file, provide
the required FRN(s) and password(s) and fill out your application. You must
completely fill out forms and provide all requested information as provided
in parts 1, 25, 63 and 64 of this chapter.
(1) You must provide an address where you can receive mail delivery by the
United States Postal Service. You are also encouraged to provide an e-mail
address. This information is used to contact you regarding your application
and to request additional documentation, if necessary.
(2) Reference to material on file. You must answer questions on application
forms that call for specific technical data, or that require yes or no
answers or other short answers. However, if documents or other lengthy
showings are already on file with us and contain the required information,
you may incorporate the information by reference, as long as:
(i) The referenced information is filed in IBFS or, if manually filed, the
information is more than one “81/2inch by 11 inch” page.
(ii) The referenced information is current and accurate in all material
respects; and
(iii) The application states where we can find the referenced information as
well as:
(A) The application file number, if the reference is to previously-filed
applications
(B) The title of the proceeding, the docket number, and any legal citation,
if the reference is to a docketed proceeding.
(a) Step 4: File your application. If you file your application successfully
through IBFS, a confirmation screen will appear showing you the date and
time of your filing and your submission ID. Print this verification for your
records as proof of online filing.
(b) Step 5: Pay for your application.
(1) Most applications require that you pay a fee to us before we can begin
processing your application. You can determine the amount of your fee in
three ways:
(i) You can refer to §1.1107,
(ii) You can refer to the International and Satellite Services fee guide
located at http://www.fcc.gov/fees/appfees.html, or
(iii) You can run a draft Form 159 through IBFS, in association with a filed
application, and the system will automatically enter your required fee on
the form.
(2) A complete FCC Form 159 must accompany all fee payments. You must
provide the FRN for both the applicant and the payer. You also must include
your IBFS Submission ID number on your FCC Form 159 in the box labeled “FCC
Code 2.” In addition, for applications for transfer of control or assignment
of license, call signs involved in the transaction must be entered into the
“FCC Code 1” box on the FCC Form 159. (This may require the use of multiple
rows on the FCC Form 159 for a single application where more than one call
sign is involved.)
(i) You may use a paper version of FCC Form 159, or
(ii) You can generate a pre-filled FCC Form 159 from IBFS using your IBFS
Submission ID. For specific instructions on using IBFS to generate your FCC
Form 159, go to the IBFS Web site ( http://www.fcc.gov/ibfs ) and click on
the “Getting Started” button.
(3) You have 3 payment options:
(i) Pay by credit card (through IBFS or by regular mail),
(ii) Pay by check, bank draft or money order, or
(iii) Pay by wire transfer or other electronic payments.
(4) You have 14 calendar days from the date you file your application in
IBFS to submit your fee payment to Mellon Bank. Your FCC Form 159 must be
stamped “received” by Mellon Bank by the 14th day. If not, we will dismiss
your application.
(5) If you send your Form 159 and payment to Mellon Bank in paper form, you
should mail your completed Form 159 and payment to the address specified in
§1.1107 of the Commission's rules. If you file electronically, do not send
copies of your application with your payment and Form 159.
(6) For more information on fee payments, refer to Payment Instructions
found on the IBFS Internet site at http://www.fcc.gov/ibfs.
(7) Step 5 is not applicable if your application is fee exempt.
§ 1.10010 Do I need to send paper copies with my electronic applications?
top
(a) If you file electronically through IBFS, the electronic record is the
official record.
(b) If you file electronically, you do not need to submit paper copies of
your application.
(c) If you submit paper copies of your application with your payment, we
will consider them as copies and may not retain them.
§ 1.10011 Who may sign applications?
top
(a) “Signed” in this section refers to electronically filed applications. An
electronic application is “signed” when there is an electronic signature. An
electronic signature is the typed name of the person “signing” the
application, which is then electronically transmitted via IBFS.
(b) For all electronically filed applications, you (or the signor) must
actually sign a paper copy of the application, and keep the signed original
in your files for future reference.
(c) You only need to sign the original of applications, amendments, and
related statements of fact.
(d) Sign applications, amendments, and related statements of fact as follows
(either electronically or manually):
(1) By you, if you are an individual;
(2) By one of the partners, if you are a partnership;
(3) By an officer, director, or duly authorized employee, if you are a
corporation; or
(4) By a member who is an officer, if you are an unauthorized association.
(e) If you file applications, amendments, and related statements of fact on
behalf of eligible government entities, an elected or appointed official who
may sign under the laws of the applicable jurisdiction must sign the
document. Eligible government entities are:
(1) States and territories of the United States,
(2) Political subdivisions of these states and territories,
(3) The District of Columbia, and
(4) Units of local government.
(f) If you are either physically disabled or absent from the United States,
your attorney may sign applications, amendments and related statements of
facts on your behalf.
(1) Your attorney must explain why you are not signing the documents.
(2) If your attorney states any matter based solely on his belief (rather
than knowledge), your attorney must explain his reasons for believing that
such statements are true.
(g) It is unnecessary to sign applications, amendments, and related
statements of fact under oath. However, willful false statements are
punishable by a fine and imprisonment, 18 U.S.C. 1001, and by administrative
sanctions.
§ 1.10012 When can I file on IBFS?
top
IBFS is available 24 hours a day, seven (7) days a week for filing.
§ 1.10013 How do I check the status of my application after I file it?
top
You can check the status of your application through the “Search Tools” on
the IBFS homepage. The IBFS homepage is located at www.fcc.gov/ibfs.
§ 1.10014 What happens after officially filing my application?
top
(a) We give you an IBFS file number.
(b) We electronically route your application to an analyst who conducts an
initial review of your application. If your application is incomplete, we
will either dismiss the application, or contact you by telephone, letter or
email to ask for additional information within a specific time. In cases
where we ask for additional information, if we do not receive it within the
specified time, we will dismiss your application. In either case, we will
dismiss your application without prejudice, so that you may file again with
a complete application.
(c) If your application is complete, and we verify receipt of your payment,
it will appear on an “Accepted for Filing” Public Notice, unless public
notice is not required. An “Accepted for Filing” Public Notice gives the
public a certain amount of time to comment on your filing. This period
varies depending upon the type of application.
(1) Certain applications do not have to go on an “Accepted for Filing”
Public Notice prior to initiation of service, but instead are filed as
notifications to the Commission of prior actions by the carriers as
authorized by the rules. Examples include pro forma notifications of
transfer of control and assignment and certain foreign carrier
notifications.
(2) Each “Accepted for Filing” Public Notice has a report number. Examples
of various types of applications and their corresponding report number (the
“x” represents a sequential number) follow.
Type of application Report No.
325-C Applications 325-xxxxx
Accounting Rate Change ARC-xxxxx
Foreign Carrier Affiliation Notification FCN-xxxxx
International High Frequency IHF-xxxxx
International Public Fixed IPF-xxxxx
Recognized Operating Agency ROA-xxxxx
Satellite Space Station SAT-xxxxx
Satellite Earth Station SES-xxxxx
International Telecommunications:
Streamlined TEL-xxxxxS
Non-streamlined TEL-xxxxxNS and/or DA
Submarine Cable Landing:
Streamlined SCL-xxxxxS
Non-streamlined SCL-xxxxxNS and/or DA
(d) After the Public Notice, your application may undergo legal, technical
and/or financial review as deemed necessary. In addition, some applications
require coordination with other government agencies.
(e) After review, we decide whether to grant or deny applications or whether
to take other necessary action. Grants, denials and any other necessary
actions are noted in the IBFS database. Some filings may not require any
affirmative action, such as some Foreign Carrier Affiliation Notification
Filings. Other filings, such as some International Section 214 Applications,
International Accounting Rate Change Filings and Requests for assignment of
Data Network Identification Codes, may be granted automatically on a
specific date unless the applicant is notified otherwise prior to that date,
as specified in the rules.
(f) We list most actions taken on public notices. Each “Action Taken” Public
Notice has a report number. Examples of various types of applications and
their corresponding report number (the “x” represents a sequential number)
follow.
Type of application Report No.
325-C Applications 325-xxxxx
Accounting Rate Change No action taken PN released
Foreign Carrier Affiliation Notification No action taken PN released
International High Frequency IHF-xxxxx
International Public Fixed IPF-xxxxx
Recognized Operating Agency No action taken PN released
Satellite Space Station SAT-xxxxx (occasionally)
Satellite Earth Station SES-xxxxx
International Telecommunications TEL-xxxxx and DA
Submarine Cable Landing TEL-xxxxx and DA
(g) Other actions are taken by formal written Order, oral actions that are
followed up with a written document, or grant stamp of the application. In
all cases, the action dates are available online through the IBFS system.
(h) Issuing and Mailing Licenses for Granted Applications. Not all
applications handled through IBFS and granted by the Commission result in
the issuance of a paper license or authorization. A list of application
types and their corresponding authorizations follows.
Type of application Type of license/authorization issued
325–C Application FCC permit mailed to permittee or contact, as specified in
the application.
Accounting Rate Change No authorizing document is issued by the Commission.
In some cases, a Commission order may be issued related to an Accounting
Rate Change filing.
Data Network Identification Code Filing Letter confirming the grant of a new
DNIC or the reassignment of an existing DNIC is mailed to the applicant or
its designated representative.
Foreign Carrier Affiliation Notification No authorizing document is issued
by the Commission. In some cases, a Commission order may be issued related
to a Foreign Carrier Affiliation Notification.
International High Frequency:
Construction Permits,
Licenses,
Modifications,
Renewals, and
Transfers of Control/Assignment of License For all applications, an
original, stamped authorization is issued to the applicant and a copy of the
authorization is sent to the specified contact.
International Public Fixed:
1. Construction Permits 1. Once the operating license is granted, the
construction period therein is specified as a condition on the license.
2. Request for Special Temporary Authority 2. Letter, grant-stamped request,
or short order.
3. New Authorization 3. License issued and mailed to applicant (original)
and specified contact (copy).
4. Amendment 4. If granted, the action is incorporated into the license for
the underlying application.
5. Modification 5. License issued and mailed to applicant (original) and
specified contact (copy).
6. Renewal 6. License issued and mailed to applicant (original) and
specified contact (copy).
7. Transfer of Control/Assignment of License 7. If granted, Form A–732
authorization issued and mailed to applicant (original), parties to the
transaction, and the applicant's specified contact (copy).
Recognized Operating Agency The FCC sends a letter to the Department of
State requesting grant or denial of recognized operating agency status. (The
applicant is mailed a courtesy copy.) The Department of State issues a
letter to both the Commission and the Applicant advising of their decision.
Satellite Space Station:
1. Request for Special Temporary Authority 1. Letter, grant-stamped request,
or short order.
2. New Authorization 2. Generally issued by Commission Order.
3. Amendment 3. Generally issued as part of a Commission Order acting upon
the underlying application.
4. Modification 4. Generally issued by Commission Order.
5. Transfer of Control/Assignment of License 5. Generally issued by
Commission Order or Public Notice. Also, Form A–732 authorization issued and
mailed to applicant (original), parties to the transaction, and the
applicant's specified contact (copy).
Satellite Earth Station:
1. Request for Special Temporary Authority 1. Letter, grant-stamped request,
or short order.
2. New Authorization 2. License issued and mailed to applicant (original)
and specified contact (copy).
3. Amendment 3. If granted, the action is incorporated into the license for
the underlying application.
4. Modification 4. License issued and mailed to applicant (original) and
specified contact (copy).
5. Renewal 5. License issued and mailed to applicant (original) and
specified contact (copy).
6. Transfer of Control/Assignment of License 6. If granted, Form A–732
authorization issued and mailed to applicant (original), parties to the
transaction, and the applicant's specified contact (copy).
International Telecommunications—Section 214:
1. Streamlined (New, Transfer of Control, Assignment) 1. Action Taken Public
Notice serves as the authorization document. This notice is issued weekly
and is available online both at IBFS ( http://www.fcc.gov/ibfs ) and the
Electronic Document Management System (EDOCS) ( http://www.fcc.gov/e-file/
).
2. Non-streamlined (New, Transfer of Control, Assignment) 2. Decisions are
generally issued by PN; some are done by Commission Order.
3. Request for Special Temporary Authority 3. Letter, grant-stamped request
issued to applicant.
International Signaling Point Code Filing Letter issued to applicant.
Submarine Cable Landing License Application:
1. Streamlined (New, Transfer of Control, Assignment) 1. Action Taken Public
Notice serves as the authorization document. This notice is issued weekly
and is available online both at IBFS, which can be found at
http://www.fcc.gov/ibfs, and the Electronic Document Management System
(EDOCS), which can be found at http://www.fcc.gov/e-file/.
2. Non-Streamlined (New, Transfer of Control, Assignment) 2. Decisions are
generally issued by PN; some are done by Commission Order.
§ 1.10015 Are there exceptions for emergency filings?
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(a) Sometimes we grant licenses, modifications or renewals even if no one
files an application. Instances where this may occur include:
(1) If we find there is an emergency involving danger to life or property,
or because equipment is damaged;
(2) If the President proclaims, or if Congress declares, a national
emergency;
(3) During any war in which the United States is engaged and when grants,
modifications or renewals are necessary for national defense, security or in
furtherance of the war effort; or
(4) If there is an emergency where we find that it is not feasible to secure
renewal applications from existing licensees or to follow normal licensing
procedures.
(b) Emergency authorizations stop at the end of emergency periods or wars.
After the emergency period or war, you must submit your request by filing
the appropriate form either manually or electronically.
(c) The procedures for emergency requests, as described in this section, are
as specified in §§25.120 and 63.25 of this chapter.
§ 1.10016 How do I apply for special temporary authority?
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(a) Requests for Special Temporary Authority (STA) may be filed via IBFS for
most services. We encourage you to file STA applications through IBFS as it
will ensure faster receipt of your request.
(b) For specific information on the content of your request, refer to
§§25.120 and 63.25 of this chapter.
§ 1.10017 How can I submit additional information?
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In response to an official request for information from the International
Bureau, you can submit additional information electronically directly to the
requestor, or by mail to the Office of the Secretary, Attention:
International Bureau.
§ 1.10018 May I amend my application?
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(a) If the service rules allow, you may amend pending applications.
(b) If an electronic version of an amendment application is available in
IBFS, you may file your amendment electronically through IBFS.
Subpart Z—Communications Assistance for Law Enforcement Act
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Source: 71 FR 38108 , July 5, 2006, unless otherwise noted.
§ 1.20000 Purpose.
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Pursuant to the Communications Assistance for Law Enforcement Act (CALEA),
Public Law 103–414, 108 Stat. 4279 (1994) (codified as amended in sections
of 18 U.S.C. and 47 U.S.C.), this subpart contains rules that require a
telecommunications carrier to:
(a) Ensure that any interception of communications or access to
call-identifying information effected within its switching premises can be
activated only in accordance with appropriate legal authorization,
appropriate carrier authorization, and with the affirmative intervention of
an individual officer or employee of the carrier acting in accordance with
regulations prescribed by the Commission; and
(b) Implement the assistance capability requirements of CALEA section 103,
47 U.S.C. 1002, to ensure law enforcement access to authorized wire and
electronic communications or call-identifying information.
§ 1.20001 Scope.
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The definitions included in 47 CFR 1.20002 shall be used solely for the
purpose of implementing CALEA requirements.
§ 1.20002 Definitions.
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For purposes of this subpart:
(a) Appropriate legal authorization. The term appropriate legal
authorization means:
(1) A court order signed by a judge or magistrate authorizing or approving
interception of wire or electronic communications; or
(2) Other authorization, pursuant to 18 U.S.C. 2518(7), or any other
relevant federal or state statute.
(b) Appropriate carrier authorization. The term appropriate carrier
authorization means the policies and procedures adopted by
telecommunications carriers to supervise and control officers and employees
authorized to assist law enforcement in conducting any interception of
communications or access to call-identifying information.
(c) Appropriate authorization. The term appropriate authorization means both
appropriate legal authorization and appropriate carrier authorization.
(d) LEA. The term LEA means law enforcement agency; e.g. , the Federal
Bureau of Investigation or a local police department.
(e) Telecommunications carrier. The term telecommunications carrier
includes:
(1) A person or entity engaged in the transmission or switching of wire or
electronic communications as a common carrier for hire;
(2) A person or entity engaged in providing commercial mobile service (as
defined in sec. 332(d) of the Communications Act of 1934 (47 U.S.C.
332(d))); or
(3) A person or entity that the Commission has found is engaged in providing
wire or electronic communication switching or transmission service such that
the service is a replacement for a substantial portion of the local
telephone exchange service and that it is in the public interest to deem
such a person or entity to be a telecommunications carrier for purposes of
CALEA.
§ 1.20003 Policies and procedures for employee supervision and control.
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A telecommunications carrier shall:
(a) Appoint a senior officer or employee responsible for ensuring that any
interception of communications or access to call-identifying information
effected within its switching premises can be activated only in accordance
with a court order or other lawful authorization and with the affirmative
intervention of an individual officer or employee of the carrier.
(b) Establish policies and procedures to implement paragraph (a) of this
section, to include:
(1) A statement that carrier personnel must receive appropriate legal
authorization and appropriate carrier authorization before enabling law
enforcement officials and carrier personnel to implement the interception of
communications or access to call-identifying information;
(2) An interpretation of the phrase “appropriate authorization” that
encompasses the definitions of appropriate legal authorization and
appropriate carrier authorization, as used in paragraph (b)(1) of this
section;
(3) A detailed description of how long it will maintain its records of each
interception of communications or access to call-identifying information
pursuant to §1.20004;
(4) In a separate appendix to the policies and procedures document:
(i) The name and a description of the job function of the senior officer or
employee appointed pursuant to paragraph (a) of this section; and
(ii) Information necessary for law enforcement agencies to contact the
senior officer or employee appointed pursuant to paragraph (a) of this
section or other CALEA points of contact on a seven days a week, 24 hours a
day basis.
(c) Report to the affected law enforcement agencies, within a reasonable
time upon discovery:
(1) Any act of compromise of a lawful interception of communications or
access to call-identifying information to unauthorized persons or entities;
and
(2) Any act of unlawful electronic surveillance that occurred on its
premises.
§ 1.20004 Maintaining secure and accurate records.
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(a) A telecommunications carrier shall maintain a secure and accurate record
of each interception of communications or access to call-identifying
information, made with or without appropriate authorization, in the form of
single certification.
(1) This certification must include, at a minimum, the following
information:
(i) The telephone number(s) and/or circuit identification numbers involved;
(ii) The start date and time that the carrier enables the interception of
communications or access to call identifying information;
(iii) The identity of the law enforcement officer presenting the
authorization;
(iv) The name of the person signing the appropriate legal authorization;
(v) The type of interception of communications or access to call-identifying
information (e.g., pen register, trap and trace, Title III, FISA); and
(vi) The name of the telecommunications carriers' personnel who is
responsible for overseeing the interception of communication or access to
call-identifying information and who is acting in accordance with the
carriers' policies established under §1.20003.
(2) This certification must be signed by the individual who is responsible
for overseeing the interception of communications or access to
call-identifying information and who is acting in accordance with the
telecommunications carrier's policies established under §1.20003. This
individual will, by his/her signature, certify that the record is complete
and accurate.
(3) This certification must be compiled either contemporaneously with, or
within a reasonable period of time after the initiation of the interception
of the communications or access to call-identifying information.
(4) A telecommunications carrier may satisfy the obligations of paragraph
(a) of this section by requiring the individual who is responsible for
overseeing the interception of communication or access to call-identifying
information and who is acting in accordance with the carriers' policies
established under §1.20003 to sign the certification and append the
appropriate legal authorization and any extensions that have been granted.
This form of certification must at a minimum include all of the information
listed in paragraph (a) of this section.
(b) A telecommunications carrier shall maintain the secure and accurate
records set forth in paragraph (a) of this section for a reasonable period
of time as determined by the carrier.
(c) It is the telecommunications carrier's responsibility to ensure its
records are complete and accurate.
(d) Violation of this rule is subject to the penalties of §1.20008.
[ 71 FR 38108 , July 5, 2006]
§ 1.20005 Submission of policies and procedures and Commission review.
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(a) Each telecommunications carrier shall file with the Commission the
policies and procedures it uses to comply with the requirements of this
subchapter. These policies and procedures shall be filed with the Federal
Communications Commission within 90 days of the effective date of these
rules, and thereafter, within 90 days of a carrier's merger or divestiture
or a carrier's amendment of its existing policies and procedures.
(b) The Commission shall review each telecommunications carrier's policies
and procedures to determine whether they comply with the requirements of
§§1.20003 and 1.20004.
(1) If, upon review, the Commission determines that a telecommunications
carrier's policies and procedures do not comply with the requirements
established under §§1.20003 and 1.20004, the telecommunications carrier
shall modify its policies and procedures in accordance with an order
released by the Commission.
(2) The Commission shall review and order modification of a
telecommunications carrier's policies and procedures as may be necessary to
insure compliance by telecommunications carriers with the requirements of
the regulations prescribed under §§1.20003 and 1.20004.
[ 71 FR 38108 , July 5, 2006]
§ 1.20006 Assistance capability requirements.
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(a) Telecommunications carriers shall provide to a Law Enforcement Agency
the assistance capability requirements of CALEA regarding wire and
electronic communications and call-identifying information, see 47 U.S.C.
1002. A carrier may satisfy these requirements by complying with publicly
available technical requirements or standards adopted by an industry
association or standard-setting organization, such as J–STD–025 (current
version), or by the Commission.
(b) Telecommunications carriers shall consult, as necessary, in a timely
fashion with manufacturers of its telecommunications transmission and
switching equipment and its providers of telecommunications support services
for the purpose of ensuring that current and planned equipment, facilities,
and services comply with the assistance capability requirements of 47 U.S.C.
1002.
(c) A manufacturer of telecommunications transmission or switching equipment
and a provider of telecommunications support service shall, on a reasonably
timely basis and at a reasonable charge, make available to the
telecommunications carriers using its equipment, facilities, or services
such features or modifications as are necessary to permit such carriers to
comply with the assistance capability requirements of 47 U.S.C. 1002.
§ 1.20007 Additional assistance capability requirements for wireline,
cellular, and PCS telecommunications carriers.
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(a) Definition —(1) Call-identifying information. Call identifying
information means dialing or signaling information that identifies the
origin, direction, destination, or termination of each communication
generated or received by a subscriber by means of any equipment, facility,
or service of a telecommunications carrier. Call-identifying information is
“reasonably available” to a carrier if it is present at an intercept access
point and can be made available without the carrier being unduly burdened
with network modifications.
(2) Collection function. The location where lawfully authorized intercepted
communications and call-identifying information is collected by a law
enforcement agency (LEA).
(3) Content of subject-initiated conference calls. Capability that permits a
LEA to monitor the content of conversations by all parties connected via a
conference call when the facilities under surveillance maintain a circuit
connection to the call.
(4) Destination. A party or place to which a call is being made (e.g., the
called party).
(5) Dialed digit extraction. Capability that permits a LEA to receive on the
call data channel a digits dialed by a subject after a call is connected to
another carrier's service for processing and routing.
(6) Direction. A party or place to which a call is re-directed or the party
or place from which it came, either incoming or outgoing (e.g., a
redirected-to party or redirected-from party).
(7) IAP. Intercept access point is a point within a carrier's system where
some of the communications or call-identifying information of an intercept
subject's equipment, facilities, and services are accessed.
(8) In-band and out-of-band signaling. Capability that permits a LEA to be
informed when a network message that provides call identifying information
(e.g., ringing, busy, call waiting signal, message light) is generated or
sent by the IAP switch to a subject using the facilities under surveillance.
Excludes signals generated by customer premises equipment when no network
signal is generated.
(9) J–STD–025. The standard, including the latest version, developed by the
Telecommunications Industry Association (TIA) and the Alliance for
Telecommunications Industry Solutions (ATIS) for wireline, cellular, and
broadband PCS carriers. This standard defines services and features to
support lawfully authorized electronic surveillance, and specifies
interfaces necessary to deliver intercepted communications and
call-identifying information to a LEA. Subsequently, TIA and ATIS published
J–STD–025–A and J–STD–025–B.
(10) Origin. A party initiating a call (e.g., a calling party), or a place
from which a call is initiated.
(11) Party hold, join, drop on conference calls. Capability that permits a
LEA to identify the parties to a conference call conversation at all times.
(12) Subject-initiated dialing and signaling information. Capability that
permits a LEA to be informed when a subject using the facilities under
surveillance uses services that provide call identifying information, such
as call forwarding, call waiting, call hold, and three-way calling. Excludes
signals generated by customer premises equipment when no network signal is
generated.
(13) Termination. A party or place at the end of a communication path (e.g.
the called or call-receiving party, or the switch of a party that has placed
another party on hold).
(14) Timing information. Capability that permits a LEA to associate
call-identifying information with the content of a call. A call-identifying
message must be sent from the carrier's IAP to the LEA's Collection Function
within eight seconds of receipt of that message by the IAP at least 95% of
the time, and with the call event time-stamped to an accuracy of at least
200 milliseconds.
(b) In addition to the requirements in §1.20006, wireline, cellular, and PCS
telecommunications carriers shall provide to a LEA the assistance capability
requirements regarding wire and electronic communications and call
identifying information covered by J–STD–025 (current version), and, subject
to the definitions in this section, may satisfy these requirements by
complying with J–STD–025 (current version), or by another means of their own
choosing. These carriers also shall provide to a LEA the following
capabilities:
(1) Content of subject-initiated conference calls;
(2) Party hold, join, drop on conference calls;
(3) Subject-initiated dialing and signaling information;
(4) In-band and out-of-band signaling;
(5) Timing information;
(6) Dialed digit extraction, with a toggle feature that can
activate/deactivate this capability.
§ 1.20008 Penalties.
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In the event of a telecommunications carrier's violation of this subchapter,
the Commission shall enforce the penalties articulated in 47 U.S.C. 503(b)
of the Communications Act of 1934 and 47 CFR 1.80.
Appendix A to Part 1—A Plan of Cooperative Procedure in Matters and Cases Under
the Provisions of Section 410 of the Communications Act of 1934
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(Approved by the Federal Communications Commission October 25, 1938, and
approved by the National Association of Railroad and Utilities Commissioners
on November 17, 1938.)
preliminary statement concerning the purpose and effect of the plan
Section 410 of the Communications Act of 1934 authorizes cooperation between
the Federal Communications Commission, hereinafter called the Federal
Commission, and the State commissions of the several States, in the
administration of said Act. Subsection (a) authorizes the reference of any
matter arising in the administration of said Act to a board to be composed
of a member or members from each of the States in which the wire, or radio
communication affected by or involved in the proceeding takes place, or is
proposed. Subsection (b) authorizes conferences by the Federal Commission
with State commissions regarding the relationship between rate structures,
accounts, charges, practices, classifications, and regulations of carriers
subject to the jurisdiction of such State commissions and of said Federal
Commission and joint hearings with State commissions in connection with any
matter with respect to which the Federal Commission is authorized to act.
Obviously, it is impossible to determine in advance what matters should be
the subject of a conference, what matters should be referred to a board, and
what matters should be heard at a joint hearing of State commissions and the
Federal Commission. It is understood, therefore, that the Federal Commission
or any State commission will freely suggest cooperation with respect to any
proceedings or matter affecting any carrier subject to the jurisdiction of
said Federal Commission and of a State commission, and concerning which it
is believed that cooperation will be in the public interest.
To enable this to be done, whenever a proceeding shall be instituted before
any commission, Federal or State, in which another commission is believed to
be interested, notice should be promptly given each such interested
commission by the commission before which the proceeding has been
instituted. Inasmuch, however, as failure to give notice as contemplated by
the provisions of this plan will sometimes occur purely through
inadvertence, any such failure should not operate to deter any commission
from suggesting that any such proceeding be made the subject matter of
cooperative action, if cooperation therein is deemed desirable.
It is understood that each commission whether or not represented in the
National Association of Railroad and Utilities Commissioners, must determine
its own course of action with respect to any proceeding in the light of the
law under which, at any given time, it is called upon to act, and must be
guided by its own views of public policy; and that no action taken by such
Association can in any respect prejudice such freedom of action. The
approval by the Association of this plan of cooperative procedure, which was
jointly prepared by the Association's standing Committee on Cooperation
between Federal and State commissions and said Federal Commission, is
accordingly recommendatory only; but such plan is designed to be, and it is
believed that it will be, a helpful step in the promotion of cooperative
relations between the State commissions and said Federal Commission.
notice of institution of proceeding
Whenever there shall be instituted before the Federal Commission any
proceeding involving the rates of any telephone or telegraph carrier, the
State commissions of the States affected thereby will be notified
immediately thereof by the Federal Commission, and each notice given a State
commission will advise such commission that, if it deems the proceeding one
which should be considered under the cooperative provisions of the Act, it
should either directly or through the National Association of Railroad and
Utilities Commissioners, notify the Federal Commission as to the nature of
its interest in said matter and request a conference, the creation of a
joint board, or a joint hearing as may be desired, indicating its preference
and the reasons therefor. Upon receipt of such request the Federal
Commission will consider the same and may confer with the commission making
the request and with other interested commission, or with representatives of
the National Association of Railroad and Utilities Commissioners, in such
manner as may be most suitable; and if cooperation shall appear to be
practicable and desirable, shall so advise each interested State commission,
directly, when such cooperation will be by joint conference or by reference
to a joint board appointed under said sec. 410 (a), and, as hereinafter
provided, when such cooperation will be by a joint hearing under said sec.
410(b).
Each State commission should in like manner notify the Federal Commission of
any proceeding instituted before it involving the toll telephone rates or
the telegraph rates of any carrier subject to the jurisdiction of the
Federal Commission.
procedure governing joint conferences
The Federal Commission, in accordance with the indicated procedure, will
confer with any State commission regarding any matter relating to the
regulation of public utilities subject to the jurisdiction of either
commission. The commission desiring a conference upon any such matter should
notify the other without delay, and thereupon the Federal Commission will
promptly arrange for a conference in which all interested State commissions
will be invited to be present.
procedure governing matters referred to a board
Whenever the Federal Commission, either upon its own motion or upon the
suggestion of a State commission, or at the request of any interested party,
shall determine that it is desirable to refer a matter arising in the
administration of the Communications Act of 1934 to a board to be composed
of a member or members from the State or States affected or to be affected
by such matter, the procedure shall be as follows:
The Federal Commission will send a request to each interested State
commission to nominate a specified number of members to serve on such board.
The representation of each State concerned shall be equal, unless one or
more of the States affected chooses to waive such right of equal
representation. When the member or members of any board have been nominated
and appointed, in accordance with the provisions of the Communications Act
of 1934, the Federal Commission will make an order referring the particular
matter to such board, and such order shall fix the time and place of
hearing, define the force and effect the action of the board shall have, and
the manner in which its proceedings shall be conducted. The rules of
practice and procedure, as from time to time adopted or prescribed by the
Federal Commission, shall govern such board, as far as applicable.
procedure governing joint hearings
Whenever the Federal Commission, either upon its own motion or upon
suggestions made by or on behalf of any interested State commission or
commissions, shall determine that a joint hearing under said sec. 410(b) is
desirable in connection with any matter pending before said Federal
Commission, the procedure shall be as follows:
(a) The Federal Commission will notify the general solicitor of the National
Association of Railroad and Utilities Commissioners that said Association,
or, if not more than eight States are within the territory affected by the
proceeding, the State commissions interested, are invited to name
Cooperating Commissioners to sit with the Federal Commission for the hearing
and consideration of said proceeding.
(b) Upon receipt of any notice from said Federal Commission inviting
cooperation, if not more than eight States are involved, the general
solicitor shall at once advise the State commissions of said States, they
being represented in the membership of the association, of the receipt of
such notice, and shall request each such commission to give advice to him in
writing, before a date to be indicated by him in his communication
requesting such advice (1) whether such commission will cooperate in said
proceeding, (2) if it will, by what commissioner it will be represented
therein.
(c) Upon the basis of replies received, the general solicitor shall advise
the Federal Commission what States, if any, are desirous of making the
proceeding cooperative and by what commissioners they will be represented,
and he shall give like advice to each State commission interested therein.
(d) If more than eight States are interested in the proceeding, because
within territory for which rates will be under consideration therein, the
general solicitor shall advise the president of the association that the
association is invited to name a cooperating committee of State
commissioners representing the States interested in said proceeding.
The president of the association shall thereupon advise the general
solicitor in writing (1) whether the invitation is accepted on behalf of the
association, and (2) the names of commissioners selected to sit as a
cooperating committee. The president of the association shall have the
authority to accept or to decline said invitation for the association, and
to determine the number of commissioners who shall be named on the
cooperating committee, provided that his action shall be concurred in by the
chairman of the association's executive committee. In the event of any
failure of the president of the association and chairman of its executive
committee to agree, the second vice president of the association (or the
chairman of its committee on cooperation between State and Federal
commissions, if there shall be no second vice president) shall be consulted,
and the majority opinion of the three shall prevail. Consultations and
expressions of opinion may be by mail or telegraph.
(e) If any proceeding, involving more than eight States, is pending before
the Federal Commission, in which cooperation has not been invited by that
Commission, which the association's president and the first and second vice
presidents, or any two of them, consider should be made a cooperating
proceeding, they may instruct the general solicitor to suggest to the
Federal Commission that the proceeding be made a cooperative proceeding; and
any State commission considering that said proceeding should be made
cooperative may request the president of the association or the chairman of
its executive committee to make such suggestion after consideration with the
executive officers above named. If said Federal Commission shall assent to
the suggestion, made as aforesaid, the president of the association shall
have the same authority to proceed, and shall proceed in the appointment of
a cooperating committee, as is provided in other cases involving more than
eight States, wherein the Federal Commission has invited cooperation, and
the invitation has been accepted.
(f) Whenever any case is pending before the Federal Commission involving
eight States or less, which a commission of any of said States considers
should be made cooperative, such commission, either directly or through the
general solicitor of the association, may suggest to the Federal Commission
that the proceeding be made cooperative. If said Federal Commission accedes
to such suggestion, it will notify the general solicitor of the association
to that effect and thereupon the general solicitor shall proceed as is
provided in such case when the invitation has been made by the Federal
Commission without State commission suggestion.
appointment of cooperating commissioners by the president
In the appointment of any cooperating committee, the president of the
association shall make appointments only from commissions of the States
interested in the particular proceeding in which the committee is to serve.
He shall exercise his best judgment to select cooperating commissioners who
are especially qualified to serve upon cooperating committees by reason of
their ability and fitness; and in no case shall he appoint a commissioner
upon a cooperating committee until he shall have been advised by such
commissioner that it will be practicable for him to attend the hearings in
the proceeding in which the committee is to serve, including the arguments
therein, and the cooperative conferences, which may be held following the
submission of the proceeding, to an extent that will reasonably enable him
to be informed upon the issues in the proceeding and to form a reasonable
judgment in the matters to be determined.
tenure of cooperators
(a) No State commissioner shall sit in a cooperative proceeding under this
plan except a commissioner who has been selected by his commission to
represent it in a proceeding involving eight States or less, or has been
selected by the president of the association to sit in a case involving more
than eight States, in the manner hereinbefore provided.
(b) A commissioner who has been selected, as hereinbefore provided, to serve
as a member of a cooperating committee in any proceeding, shall without
further appointment, and without regard to the duration of time involved,
continue to serve in said proceeding until the final disposition thereof,
including hearings and conferences after any order or reopening, provided
that he shall continue to be a State commissioner.
(c) No member of a cooperating committee shall have any right or authority
to designate another commissioner to serve in his place at any hearing or
conference in any proceeding in which he has been appointed to serve.
(d) Should a vacancy occur upon any cooperating committee, in a proceeding
involving more than eight States, by reason of the death of any cooperating
commissioner, or of his ceasing to be a State commissioner, or of other
inability to serve, it shall be the duty of the president of the association
to fill the vacancy by appointment, if, after communication with the
chairman of the cooperating committee, it be deemed necessary to fill such
vacancy.
(e) In the event of any such vacancy occurring upon a cooperating committee
involving not more than eight States, the vacancy shall be filled by the
commission from which the vacancy occurs.
cooperating committee to determine respecting any report of statement of its
attitude
(a) Whenever a cooperating committee shall have concluded its work, or shall
deem such course advisable, the committee shall consider whether it is
necessary and desirable to make a report to the interested State
commissions, and, if it shall determine to make a report, it shall cause the
same to be distributed through the secretary of the association, or through
the general solicitor to all interested commissions.
(b) If a report of the Federal Commission will accompany any order to be
made in said proceeding, the Federal Commission will state therein the
concurrence or nonconcurrence of said cooperating committee in the decision
or order of said Federal Commission.
construction hereof in certain respects expressly provided
It is understood and provided that no State or States shall be deprived of
the right of participation and cooperation as hereinbefore provided because
of nonmembership in the association. With respect to any such State or
States, all negotiations herein specified to be carried on between the
Federal Commission and any officer of such association shall be conducted by
the Federal Commission directly with the chairman of the commission of such
State or States.
[ 28 FR 12462 , Nov. 22, 1963, as amended at 29 FR 4801 , Apr. 4, 1964]
Appendix B to Part 1—Nationwide Programmatic Agreement for the Collocation of
Wireless Antennas
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Nationwide Programmatic Agreement for the Collocation of Wireless Antennas
Executed by the Federal Communications Commission, the National Conference
of State Historic Preservation Officers and the Advisory Council on Historic
Preservation
Whereas, the Federal Communications Commission (FCC) establishes rules and
procedures for the licensing of wireless communications facilities in the
United States and its Possessions and Territories; and,
Whereas, the FCC has largely deregulated the review of applications for the
construction of individual wireless communications facilities and, under
this framework, applicants are required to prepare an Environmental
Assessment (EA) in cases where the applicant determines that the proposed
facility falls within one of certain environmental categories described in
the FCC's rules (47 CFR 1.1307), including situations which may affect
historical sites listed or eligible for listing in the National Register of
Historic Places (“National Register”); and,
Whereas, Section 106 of the National Historic Preservation Act (16 U.S.C.
470 et seq. ) (“the Act”) requires federal agencies to take into account the
effects of their undertakings on historic properties and to afford the
Advisory Council on Historic Preservation (Council) a reasonable opportunity
to comment; and,
Whereas, Section 800.14(b) of the Council's regulations, “Protection of
Historic Properties” (36 CFR 800.14(b)), allows for programmatic agreements
to streamline and tailor the Section 106 review process to particular
federal programs; and,
Whereas, in August 2000, the Council established a Telecommunications
Working Group to provide a forum for the FCC, Industry representatives,
State Historic Preservation Officers (SHPOs) and Tribal Historic
Preservation Officers (THPOs), and the Council to discuss improved
coordination of Section 106 compliance regarding wireless communications
projects affecting historic properties; and,
Whereas, the FCC, the Council and the Working Group have developed this
Collocation Programmatic Agreement in accordance with 36 CFR 800.14(b) to
address the Section 106 review process as it applies to the collocation of
antennas (collocation being defined in Stipulation I.A below); and,
Whereas, the FCC encourages collocation of antennas where technically and
economically feasible, in order to reduce the need for new tower
construction; and,
Whereas, the parties hereto agree that the effects on historic properties of
collocations of antennas on towers, buildings and structures are likely to
be minimal and not adverse, and that in the cases where an adverse effect
might occur, the procedures provided and referred to herein are proper and
sufficient, consistent with Section 106, to assure that the FCC will take
such effects into account; and
Whereas, the execution of this Nationwide Collocation Programmatic Agreement
will streamline the Section 106 review of collocation proposals and thereby
reduce the need for the construction of new towers, thereby reducing
potential effects on historic properties that would otherwise result from
the construction of those unnecessary new towers; and,
Whereas, the FCC and the Council have agreed that these measures should be
incorporated into a Nationwide Programmatic Agreement to better manage the
Section 106 consultation process and streamline reviews for collocation of
antennas; and,
Whereas, since collocations reduce both the need for new tower construction
and the potential for adverse effects on historic properties, the parties
hereto agree that the terms of this Agreement should be interpreted and
implemented wherever possible in ways that encourage collocation; and
Whereas, the parties hereto agree that the procedures described in this
Agreement are, with regard to collocations as defined herein, a proper
substitute for the FCC's compliance with the Council's rules, in accordance
and consistent with Section 106 of the National Historic Preservation Act
and its implementing regulations found at 36 CFR part 800; and
Whereas, the FCC has consulted with the National Conference of State
Historic Preservation Officers (NCSHPO) and requested the President of
NCSHPO to sign this Nationwide Collocation Programmatic Agreement in
accordance with 36 CFR Section 800.14(b)(2)(iii); and,
Whereas, the FCC sought comment from Indian tribes and Native Hawaiian
Organizations regarding the terms of this Nationwide Programmatic Agreement
by letters of January 11, 2001 and February 8, 2001; and,
Whereas, the terms of this Programmatic Agreement do not apply on “tribal
lands” as defined under Section 800.16(x) of the Council's regulations, 36
CFR 800.16(x) (“Tribal lands means all lands within the exterior boundaries
of any Indian reservation and all dependent Indian communities.”); and,
Whereas, the terms of this Programmatic Agreement do not preclude Indian
tribes or Native Hawaiian Organizations from consulting directly with the
FCC or its licensees, tower companies and applicants for antenna licenses
when collocation activities off tribal lands may affect historic properties
of religious and cultural significance to Indian tribes or Native Hawaiian
organizations; and,
Whereas, the execution and implementation of this Nationwide Collocation
Programmatic Agreement will not preclude members of the public from filing
complaints with the FCC or the Council regarding adverse effects on historic
properties from any existing tower or any activity covered under the terms
of this Programmatic Agreement.
Now therefore, the FCC, the Council, and NCSHPO agree that the FCC will meet
its Section 106 compliance responsibilities for the collocation of antennas
as follows.
Stipulations
The FCC, in coordination with licensees, tower companies and applicants for
antenna licenses, will ensure that the following measures are carried out.
I. Definitions
For purposes of this Nationwide Programmatic Agreement, the following
definitions apply.
A. ”Collocation” means the mounting or installation of an antenna on an
existing tower, building or structure for the purpose of transmitting and/or
receiving radio frequency signals for communications purposes.
B. ”Tower” is any structure built for the sole or primary purpose of
supporting FCC-licensed antennas and their associated facilities.
C.”Substantial increase in the size of the tower” means:
(1) The mounting of the proposed antenna on the tower would increase the
existing height of the tower by more than 10%, or by the height of one
additional antenna array with separation from the nearest existing antenna
not to exceed twenty feet, whichever is greater, except that the mounting of
the proposed antenna may exceed the size limits set forth in this paragraph
if necessary to avoid interference with existing antennas; or
(2) The mounting of the proposed antenna would involve the installation of
more than the standard number of new equipment cabinets for the technology
involved, not to exceed four, or more than one new equipment shelter; or
(3) The mounting of the proposed antenna would involve adding an
appurtenance to the body of the tower that would protrude from the edge of
the tower more than twenty feet, or more than the width of the tower
structure at the level of the appurtenance, whichever is greater, except
that the mounting of the proposed antenna may exceed the size limits set
forth in this paragraph if necessary to shelter the antenna from inclement
weather or to connect the antenna to the tower via cable; or
(4) The mounting of the proposed antenna would involve excavation outside
the current tower site, defined as the current boundaries of the leased or
owned property surrounding the tower and any access or utility easements
currently related to the site.
II. Applicability
A. This Nationwide Collocation Programmatic Agreement applies only to the
collocation of antennas as defined in Stipulation I.A, above.
B. This Nationwide Collocation Programmatic Agreement does not cover any
Section 106 responsibilities that federal agencies other than the FCC may
have with regard to the collocation of antennas.
III. Collocation of Antennas on Towers Constructed on or Before March 16,
2001
A. An antenna may be mounted on an existing tower constructed on or before
March 16, 2001 without such collocation being reviewed under the
consultation process set forth under Subpart B of 36 CFR Part 800, unless:
1. The mounting of the antenna will result in a substantial increase in the
size of the tower as defined in Stipulation I.C, above; or
2. The tower has been determined by the FCC to have an effect on one or more
historic properties, unless such effect has been found to be not adverse
through a no adverse effect finding, or if found to be adverse or
potentially adverse, has been resolved, such as through a conditional no
adverse effect determination, a Memorandum of Agreement, a programmatic
agreement, or otherwise in compliance with Section 106 and Subpart B of 36
CFR Part 800; or
3. The tower is the subject of a pending environmental review or related
proceeding before the FCC involving compliance with Section 106 of the
National Historic Preservation Act; or
4. The collocation licensee or the owner of the tower has received written
or electronic notification that the FCC is in receipt of a complaint from a
member of the public, a SHPO or the Council, that the collocation has an
adverse effect on one or more historic properties. Any such complaint must
be in writing and supported by substantial evidence describing how the
effect from the collocation is adverse to the attributes that qualify any
affected historic property for eligibility or potential eligibility for the
National Register.
IV. Collocation of Antennas on Towers Constructed After March 16, 2001
A. An antenna may be mounted on an existing tower constructed after March
16, 2001 without such collocation being reviewed under the consultation
process set forth under Subpart B of 36 CFR Part 800, unless:
1. The Section 106 review process for the tower set forth in 36 CFR Part 800
and any associated environmental reviews required by the FCC have not been
completed; or
2. The mounting of the new antenna will result in a substantial increase in
the size of the tower as defined in Stipulation I.C, above; or
3. The tower as built or proposed has been determined by the FCC to have an
effect on one or more historic properties, unless such effect has been found
to be not adverse through a no adverse effect finding, or if found to be
adverse or potentially adverse, has been resolved, such as through a
conditional no adverse effect determination, a Memorandum of Agreement, a
programmatic agreement, or otherwise in compliance with Section 106 and
Subpart B of 36 CFR Part 800; or
4. The collocation licensee or the owner of the tower has received written
or electronic notification that the FCC is in receipt of a complaint from a
member of the public, a SHPO or the Council, that the collocation has an
adverse effect on one or more historic properties. Any such complaint must
be in writing and supported by substantial evidence describing how the
effect from the collocation is adverse to the attributes that qualify any
affected historic property for eligibility or potential eligibility for the
National Register.
V. Collocation of Antennas on Buildings and Non-Tower Structures Outside of
Historic Districts
A. An antenna may be mounted on a building or non-tower structure without
such collocation being reviewed under the consultation process set forth
under Subpart B of 36 CFR Part 800, unless:
1. The building or structure is over 45 years old;^1 or
^1 Suitable methods for determining the age of a building include, but are
not limited to: (1) obtaining the opinon of a consultant who meets the
Secretary of Interior's Professional Qualifications Standards (36 CFR Part
61) or (2) consulting public records.
2. The building or structure is inside the boundary of a historic district,
or if the antenna is visible from the ground level of the historic district,
the building or structure is within 250 feet of the boundary of the historic
district; or
3. The building or non-tower structure is a designated National Historic
Landmark, or listed in or eligible for listing in the National Register of
Historic Places based upon the review of the licensee, tower company or
applicant for an antenna license; or
4. The collocation licensee or the owner of the tower has received written
or electronic notification that the FCC is in receipt of a complaint from a
member of the public, a SHPO or the Council, that the collocation has an
adverse effect on one or more historic properties. Any such complaint must
be in writing and supported by substantial evidence describing how the
effect from the collocation is adverse to the attributes that qualify any
affected historic property for eligibility or potential eligibility for the
National Register.
B. Subsequent to the collocation of an antenna, should the SHPO/THPO or
Council determine that the collocation of the antenna or its associated
equipment installed under the terms of Stipulation V has resulted in an
adverse effect on historic properties, the SHPO/THPO or Council may notify
the FCC accordingly. The FCC shall comply with the requirements of Section
106 and 36 CFR Part 800 for this particular collocation.
VI. Reservation of Rights
Neither execution of this Agreement, nor implementation of or compliance
with any term herein shall operate in any way as a waiver by any party
hereto, or by any person or entity complying herewith or affected hereby, of
a right to assert in any court of law any claim, argument or defense
regarding the validity or interpretation of any provision of the National
Historic Preservation Act (16 U.S.C. 470 et seq. ) or its implementing
regulations contained in 36 CFR Part 800.
VII. Monitoring
A. FCC licensees shall retain records of the placement of all licensed
antennas, including collocations subject to this Nationwide Programmatic
Agreement, consistent with FCC rules and procedures.
B. The Council will forward to the FCC and the relevant SHPO any written
objections it receives from members of the public regarding a collocation
activity or general compliance with the provisions of this Nationwide
Programmatic Agreement within thirty (30) days following receipt of the
written objection. The FCC will forward a copy of the written objection to
the appropriate licensee or tower owner.
VIII. Amendments
If any signatory to this Nationwide Collocation Programmatic Agreement
believes that this Agreement should be amended, that signatory may at any
time propose amendments, whereupon the signatories will consult to consider
the amendments. This agreement may be amended only upon the written
concurrence of the signatories.
IX. Termination
A. If the FCC determines that it cannot implement the terms of this
Nationwide Collocation Programmatic Agreement, or if the FCC, NCSHPO or the
Council determines that the Programmatic Agreement is not being properly
implemented by the parties to this Programmatic Agreement, the FCC, NCSHPO
or the Council may propose to the other signatories that the Programmatic
Agreement be terminated.
B. The party proposing to terminate the Programmatic Agreement shall notify
the other signatories in writing, explaining the reasons for the proposed
termination and the particulars of the asserted improper implementation.
Such party also shall afford the other signatories a reasonable period of
time of no less than thirty (30) days to consult and remedy the problems
resulting in improper implementation. Upon receipt of such notice, the
parties shall consult with each other and notify and consult with other
entities that are either involved in such implementation or that would be
substantially affected by termination of this Agreement, and seek
alternatives to termination. Should the consultation fail to produce within
the original remedy period or any extension, a reasonable alternative to
termination, a resolution of the stated problems, or convincing evidence of
substantial implementation of this Agreement in accordance with its terms ,
this Programmatic Agreement shall be terminated thirty days after notice of
termination is served on all parties and published in theFederal Register.
C. In the event that the Programmatic Agreement is terminated, the FCC shall
advise its licensees and tower construction companies of the termination and
of the need to comply with any applicable Section 106 requirements on a
case-by-case basis for collocation activities.
X. Annual Meeting of the Signatories
The signatories to this Nationwide Collocation Programmatic Agreement will
meet on or about September 10, 2001, and on or about September 10 in each
subsequent year, to discuss the effectiveness of this Agreement, including
any issues related to improper implementation, and to discuss any potential
amendments that would improve the effectiveness of this Agreement.
XI. Duration of the Programmatic Agreement
This Programmatic Agreement for collocation shall remain in force unless the
Programmatic Agreement is terminated or superseded by a comprehensive
Programmatic Agreement for wireless communications antennas.
Execution of this Nationwide Programmatic Agreement by the FCC, NCSHPO and
the Council, and implementation of its terms, evidence that the FCC has
afforded the Council an opportunity to comment on the collocation as
described herein of antennas covered under the FCC's rules, and that the FCC
has taken into account the effects of these collocations on historic
properties in accordance with Section 106 of the National Historic
Preservation Act and its implementing regulations, 36 CFR Part 800.
Federal Communications Commission
____________________
Date:____________________
Advisory Council on Historic Preservation
____________________
Date:____________________
National Conference of State Historic Preservation Officers
____________________
Date:____________________
[ 70 FR 578 , Jan. 4, 2005]
Appendix C to Part 1—Nationwide Programmatic Agreement Regarding the Section
106 National Historic Preservation Act Review Process
top
Nationwide Programmatic Agreement for Review of Effects on Historic
Properties for Certain Undertakings Approved by the Federal Communications
Commission
Executed by the Federal Communications Commission, the National Conference
of State Historic Preservation Officers and the Advisory Council on Historic
Preservation
September 2004
Introduction
Whereas, Section 106 of the National Historic Preservation Act of 1966, as
amended (“NHPA”) (codified at 16 U.S.C. 470f), requires federal agencies to
take into account the effects of certain of their Undertakings on Historic
Properties (see Section II, below), included in or eligible for inclusion in
the National Register of Historic Places (“National Register”), and to
afford the Advisory Council on Historic Preservation (“Council”) a
reasonable opportunity to comment with regard to such Undertakings; and
Whereas, under the authority granted by Congress in the Communications Act
of 1934, as amended (47 U.S.C. 151 et seq. ), the Federal Communications
Commission (“Commission”) establishes rules and procedures for the licensing
of non-federal government communications services, and the registration of
certain antenna structures in the United States and its Possessions and
Territories; and
Whereas, Congress and the Commission have deregulated or streamlined the
application process regarding the construction of individual Facilities in
many of the Commission's licensed services; and
Whereas, under the framework established in the Commission's environmental
rules, 47 CFR 1.1301–1.1319, Commission licensees and applicants for
authorizations and antenna structure registrations are required to prepare,
and the Commission is required to independently review and approve, a
pre-construction Environmental Assessment (“EA”) in cases where a proposed
tower or antenna may significantly affect the environment, including
situations where a proposed tower or antenna may affect Historic Properties
that are either listed in or eligible for listing in the National Register,
including properties of religious and cultural importance to an Indian tribe
or Native Hawaiian organization (“NHO”) that meet the National Register
criteria; and
Whereas, the Council has adopted rules implementing Section 106 of the NHPA
(codified at 36 CFR Part 800) and setting forth the process, called the
“Section 106 process,” for complying with the NHPA; and
Whereas, pursuant to the Commission's rules and the terms of this Nationwide
Programmatic Agreement for Review of Effects on Historic Properties for
Certain Undertakings Approved by the Federal Communications Commission
(“Nationwide Agreement”), Applicants ( see Section II.A.2) have been
authorized, consistent with the terms of the memorandum from the Council to
the Commission, titled “Delegation of Authority for the Section 106 Review
of Telecommunications Projects,” dated September 21, 2000, to initiate,
coordinate, and assist the Commission with compliance with many aspects of
the Section 106 review process for their Facilities; and
Whereas, in August 2000, the Council established a Telecommunications
Working Group (the “Working Group”) to provide a forum for the Commission,
the Council, the National Conference of State Historic Preservation Officers
(“Conference”), individual State Historic Preservation Officers (“SHPOs”),
Tribal Historic Preservation Officers (“THPOs”), other tribal
representatives, communications industry representatives, and other
interested members of the public to discuss improved Section 106 compliance
and to develop methods of streamlining the Section 106 review process; and
Whereas, Section 214 of the NHPA (16 U.S.C. 470v) authorizes the Council to
promulgate regulations implementing exclusions from Section 106 review, and
Section 800.14(b) of the Council's regulations (36 CFR 800.14(b)) allows for
programmatic agreements to streamline and tailor the Section 106 review
process to particular federal programs, if they are consistent with the
Council's regulations; and
Whereas, the Commission, the Council, and the Conference executed on March
16, 2001, the Nationwide Programmatic Agreement for the Collocation of
Wireless Antennas (the “Collocation Agreement”), in order to streamline
review for the collocation of antennas on existing towers and other
structures and thereby reduce the need for the construction of new towers
(Attachment 1 to this Nationwide Agreement); and
Whereas, the Council, the Conference, and the Commission now agree it is
desirable to further streamline and tailor the Section 106 review process
for Facilities that are not excluded from Section 106 review under the
Collocation Agreement while protecting Historic Properties that are either
listed in or eligible for listing in the National Register; and
Whereas, the Working Group agrees that a nationwide programmatic agreement
is a desirable and effective way to further streamline and tailor the
Section 106 review process as it applies to Facilities; and
Whereas, this Nationwide Agreement will, upon its execution by the Council,
the Conference, and the Commission, constitute a substitute for the
Council's rules with respect to certain Commission Undertakings; and
Whereas, the Commission sought public comment on a draft of this Nationwide
Agreement through a Notice of Proposed Rulemaking released on June 9, 2003;
Whereas, the Commission has actively sought and received participation and
comment from Indian tribes and NHOs regarding this Nationwide Agreement; and
Whereas, the Commission has consulted with federally recognized Indian
tribes regarding this Nationwide Agreement ( see Report and Order, FCC
04–222, at ¶31); and
Whereas, this Nationwide Agreement provides for appropriate public
notification and participation in connection with the Section 106 process;
and
Whereas, Section 101(d)(6) of the NHPA provides that federal agencies “shall
consult with any Indian tribe or Native Hawaiian organization” that attaches
religious and cultural significance to properties of traditional religious
and cultural importance that may be determined to be eligible for inclusion
in the National Register and that might be affected by a federal undertaking
(16 U.S.C. 470a(d)(6)); and
Whereas, the Commission has adopted a “Statement of Policy on Establishing a
Government-to-Government Relationship with Indian Tribes” dated June 23,
2000, pursuant to which the Commission: recognizes the unique legal
relationship that exists between the federal government and Indian tribal
governments, as reflected in the Constitution of the United States,
treaties, federal statutes, Executive orders, and numerous court decisions;
affirms the federal trust relationship with Indian tribes, and recognizes
that this historic trust relationship requires the federal government to
adhere to certain fiduciary standards in its dealings with Indian tribes;
commits to working with Indian tribes on a government-to-government basis
consistent with the principles of tribal self-governance; commits, in
accordance with the federal government's trust responsibility, and to the
extent practicable, to consult with tribal governments prior to implementing
any regulatory action or policy that will significantly or uniquely affect
tribal governments, their land and resources; strives to develop working
relationships with tribal governments, and will endeavor to identify
innovative mechanisms to facilitate tribal consultations in the Commission's
regulatory processes; and endeavors to streamline its administrative process
and procedures to remove undue burdens that its decisions and actions place
on Indian tribes; and
Whereas, the Commission does not delegate under this Programmatic Agreement
any portion of its responsibilities to Indian tribes and NHOs, including its
obligation to consult under Section 101(d)(6) of the NHPA; and
Whereas, the terms of this Nationwide Agreement are consistent with and do
not attempt to abrogate the rights of Indian tribes or NHOs to consult
directly with the Commission regarding the construction of Facilities; and
Whereas, the execution and implementation of this Nationwide Agreement will
not preclude Indian tribes or NHOs, SHPO/THPOs, local governments, or
members of the public from filing complaints with the Commission or the
Council regarding effects on Historic Properties from any Facility or any
activity covered under the terms of the Nationwide Agreement; and
Whereas, Indian tribes and NHOs may request Council involvement in Section
106 cases that present issues of concern to Indian tribes or NHOs ( see 36
CFR Part 800, Appendix A, Section (c)(4)); and
Whereas, the Commission, after consulting with federally recognized Indian
tribes, has developed an electronic Tower Construction Notification System
through which Indian tribes and NHOs may voluntarily identify the geographic
areas in which Historic Properties to which they attach religious and
cultural significance may be located, Applicants may ascertain which
participating Indian tribes and NHOs have identified such an interest in the
geographic area in which they propose to construct Facilities, and
Applicants may voluntarily provide electronic notification of proposed
Facilities construction for the Commission to forward to participating
Indian tribes, NHOs, and SHPOs/THPOs; and
Whereas, the Council, the Conference and the Commission recognize that
Applicants' use of qualified professionals experienced with the NHPA and
Section 106 can streamline the review process and minimize potential delays;
and
Whereas, the Commission has created a position and hired a cultural
resources professional to assist with the Section 106 process; and
Whereas, upon execution of this Nationwide Agreement, the Council may still
provide advisory comments to the Commission regarding the coordination of
Section 106 reviews; notify the Commission of concerns raised by consulting
parties and the public regarding an Undertaking; and participate in the
resolution of adverse effects for complex, controversial, or other
non-routine projects;
Now Therefore, in consideration of the above provisions and of the covenants
and agreements contained herein, the Council, the Conference and the
Commission (the “Parties”) agree as follows:
I. Applicability and Scope of This Nationwide Agreement
A. This Nationwide Agreement (1) Excludes from Section 106 review certain
Undertakings involving the construction and modification of Facilities, and
(2) streamlines and tailors the Section 106 review process for other
Undertakings involving the construction and modification of Facilities. An
illustrative list of Commission activities in relation to which Undertakings
covered by this Agreement may occur is provided as Attachment 2 to this
Agreement.
B. This Nationwide Agreement applies only to federal Undertakings as
determined by the Commission (“Undertakings”). The Commission has sole
authority to determine what activities undertaken by the Commission or its
Applicants constitute Undertakings within the meaning of the NHPA. Nothing
in this Agreement shall preclude the Commission from revisiting or affect
the existing ability of any person to challenge any prior determination of
what does or does not constitute an Undertaking. Maintenance and servicing
of Towers, Antennas, and associated equipment are not deemed to be
Undertakings subject to Section 106 review.
C. This Agreement does not apply to Antenna Collocations that are exempt
from Section 106 review under the Collocation Agreement ( see Attachment 1).
Pursuant to the terms of the Collocation Agreement, such Collocations shall
not be subject to the Section 106 review process and shall not be submitted
to the SHPO/THPO for review. This Agreement does apply to collocations that
are not exempt from Section 106 review under the Collocation Agreement.
D. This Agreement does not apply on “tribal lands” as defined under Section
800.16(x) of the Council's regulations, 36 CFR §800.16(x) (“Tribal lands
means all lands within the exterior boundaries of any Indian reservation and
all dependent Indian communities.”). This Nationwide Agreement, however,
will apply on tribal lands should a tribe, pursuant to appropriate tribal
procedures and upon reasonable notice to the Council, Commission, and
appropriate SHPO/THPO, elect to adopt the provisions of this Nationwide
Agreement. Where a tribe that has assumed SHPO functions pursuant to Section
101(d)(2) of the NHPA (16 U.S.C. 470(d)(2)) has agreed to application of
this Nationwide Agreement on tribal lands, the term SHPO/THPO denotes the
Tribal Historic Preservation Officer with respect to review of proposed
Undertakings on those tribal lands. Where a tribe that has not assumed SHPO
functions has agreed to application of this Nationwide Agreement on tribal
lands, the tribe may notify the Commission of the tribe's intention to
perform the duties of a SHPO/THPO, as defined in this Nationwide Agreement,
for proposed Undertakings on its tribal lands, and in such instances the
term SHPO/THPO denotes both the State Historic Preservation Officer and the
tribe's authorized representative. In all other instances, the term
SHPO/THPO denotes the State Historic Preservation Officer.
E. This Nationwide Agreement governs only review of Undertakings under
Section 106 of the NHPA. Applicants completing the Section 106 review
process under the terms of this Nationwide Agreement may not initiate
construction without completing any environmental review that is otherwise
required for effects other than historic preservation under the Commission's
rules ( See 47 CFR 1.1301–1.1319). Completion of the Section 106 review
process under this Nationwide Agreement satisfies an Applicant's obligations
under the Commission's rules with respect to Historic Properties, except for
Undertakings that have been determined to have an adverse effect on Historic
Properties and that therefore require preparation and filing of an
Environmental Assessment ( See 47 CFR 1.1307(a)(4)).
F. This Nationwide Agreement does not govern any Section 106
responsibilities that agencies other than the Commission may have with
respect to those agencies' federal Undertakings.
II. Definitions
A. The following terms are used in this Nationwide Agreement as defined
below:
1. Antenna. An apparatus designed for the purpose of emitting radio
frequency (“RF”) radiation, to be operated or operating from a fixed
location pursuant to Commission authorization, for the transmission of
writing, signs, signals, data, images, pictures, and sounds of all kinds,
including the transmitting device and any on-site equipment, switches,
wiring, cabling, power sources, shelters or cabinets associated with that
antenna and added to a Tower, structure, or building as part of the original
installation of the antenna. For most services, an Antenna will be mounted
on or in, and is distinct from, a supporting structure such as a Tower,
structure or building. However, in the case of AM broadcast stations, the
entire Tower or group of Towers constitutes the Antenna for that station.
For purposes of this Nationwide Agreement, the term Antenna does not include
unintentional radiators, mobile stations, or devices authorized under Part
15 of the Commission's rules.
2. Applicant. A Commission licensee, permittee, or registration holder, or
an applicant or prospective applicant for a wireless or broadcast license,
authorization or antenna structure registration, and the duly authorized
agents, employees, and contractors of any such person or entity.
3. Area of Potential Effects (“APE”). The geographic area or areas within
which an Undertaking may directly or indirectly cause alterations in the
character or use of Historic Properties, if any such properties exist.
4. Collocation. The mounting or installation of an Antenna on an existing
Tower, building, or structure for the purpose of transmitting radio
frequency signals for telecommunications or broadcast purposes.
5. Effect. An alteration to the characteristics of a Historic Property
qualifying it for inclusion in or eligibility for the National Register.
6. Experimental Authorization. An authorization issued to conduct
experimentation utilizing radio waves for gathering scientific or technical
operation data directed toward the improvement or extension of an
established service and not intended for reception and use by the general
public. “Experimental Authorization” does not include an “Experimental
Broadcast Station” authorized under Part 74 of the Commission's rules.
7. Facility. A Tower or an Antenna. The term Facility may also refer to a
Tower and its associated Antenna(s).
8. Field Survey. A research strategy that utilizes one or more visits to the
area where construction is proposed as a means of identifying Historic
Properties.
9. Historic Property. Any prehistoric or historic district, site, building,
structure, or object included in, or eligible for inclusion in, the National
Register maintained by the Secretary of the Interior. This term includes
artifacts, records, and remains that are related to and located within such
properties. The term includes properties of traditional religious and
cultural importance to an Indian tribe or NHO that meet the National
Register criteria.
10. National Register. The National Register of Historic Places, maintained
by the Secretary of the Interior's office of the Keeper of the National
Register.
11. SHPO/THPO Inventory. A set of records of previously gathered
information, authorized by state or tribal law, on the absence, presence and
significance of historic and archaeological resources within the state or
tribal land.
12. Special Temporary Authorization. Authorization granted to a permittee or
licensee to allow the operation of a station for a limited period at a
specified variance from the terms of the station's permanent authorization
or requirements of the Commission's rules applicable to the particular class
or type of station.
13. Submission Packet. The document to be submitted initially to the
SHPO/THPO to facilitate review of the Applicant's findings and any
determinations with regard to the potential impact of the proposed
Undertaking on Historic Properties in the APE. There are two Submission
Packets: (a) The New Tower Submission Packet (FCC Form 620) ( See Attachment
3) and (b) The Collocation Submission Packet (FCC Form 621) ( See Attachment
4). Any documents required to be submitted along with a Form are part of the
Submission Packet.
14. Tower. Any structure built for the sole or primary purpose of supporting
Commission-licensed or authorized Antennas, including the on-site fencing,
equipment, switches, wiring, cabling, power sources, shelters, or cabinets
associated with that Tower but not installed as part of an Antenna as
defined herein.
B. All other terms not defined above or elsewhere in this Nationwide
Agreement shall have the same meaning as set forth in the Council's rules
section on Definitions (36 CFR 800.16) or the Commission's rules (47 CFR
Chapter I).
C. For the calculation of time periods under this Agreement, “days” mean
“calendar days.” Any time period specified in the Agreement that ends on a
weekend or a Federal or State holiday is extended until the close of the
following business day.
D. Written communications include communications by e-mail or facsimile.
III. Undertakings Excluded From Section 106 Review
Undertakings that fall within the provisions listed in the following
sections III.A. through III.F. are excluded from Section 106 review by the
SHPO/THPO, the Commission, and the Council, and, accordingly, shall not be
submitted to the SHPO/THPO for review. The determination that an exclusion
applies to an Undertaking should be made by an authorized individual within
the Applicant's organization, and Applicants should retain documentation of
their determination that an exclusion applies. Concerns regarding the
application of these exclusions from Section 106 review may be presented to
and considered by the Commission pursuant to Section XI.
A. Enhancement of a tower and any associated excavation that does not
involve a collocation and does not substantially increase the size of the
existing tower, as defined in the Collocation Agreement. For towers
constructed after March 16, 2001, this exclusion applies only if the tower
has completed the Section 106 review process and any associated
environmental reviews required by the Commission.
B. Construction of a replacement for an existing communications tower and
any associated excavation that does not substantially increase the size of
the existing tower under elements 1–3 of the definition as defined in the
Collocation Agreement ( see Attachment 1 to this Agreement, Stipulation
1.c.1–3) and that does not expand the boundaries of the leased or owned
property surrounding the tower by more than 30 feet in any direction or
involve excavation outside these expanded boundaries or outside any existing
access or utility easement related to the site. For towers constructed after
March 16, 2001, this exclusion applies only if the tower has completed the
Section 106 review process and any associated environmental reviews required
by the Commission's rules.
C. Construction of any temporary communications Tower, Antenna structure, or
related Facility that involves no excavation or where all areas to be
excavated will be located in areas described in Section VI.D.2.c.i below,
including but not limited to the following:
1. A Tower or Antenna authorized by the Commission for a temporary period,
such as any Facility authorized by a Commission grant of Special Temporary
Authority (“STA”) or emergency authorization;
2. A cell on wheels (COW) transmission Facility;
3. A broadcast auxiliary services truck, TV pickup station, remote pickup
broadcast station ( e.g. , electronic newsgathering vehicle) authorized
under Part 74 or temporary fixed or transportable earth station in the fixed
satellite service ( e.g. , satellite newsgathering vehicle) authorized under
Part 25;
4. A temporary ballast mount Tower;
5. Any Facility authorized by a Commission grant of an experimental
authorization.
For purposes of this Section III.C, the term “temporary” means “for no more
than twenty-four months duration except in the case of those Facilities
associated with national security.”
D. Construction of a Facility less than 200 feet in overall height above
ground level in an existing industrial park,^1 commercial strip mall,^2 or
shopping center^3 that occupies a total land area of 100,000 square feet or
more, provided that the industrial park, strip mall, or shopping center is
not located within the boundaries of or within 500 feet of a Historic
Property, as identified by the Applicant after a preliminary search of
relevant records. Proposed Facilities within this exclusion must complete
the process of participation of Indian tribes and NHOs pursuant to Section
IV of this Agreement. If as a result of this process the Applicant or the
Commission identifies a Historic Property that may be affected, the
Applicant must complete the Section 106 review process pursuant to this
Agreement notwithstanding the exclusion.
^1 A tract of land that is planned, developed, and operated as an integrated
facility for a number of individual industrial uses, with consideration to
transportation facilities, circulation, parking, utility needs, aesthetics
and compatibility.
^2 A structure or grouping of structures, housing retail business, set back
far enough from the street to permit parking spaces to be placed between the
building entrances and the public right of way.
^3 A group of commercial establishments planned, constructed, and managed as
a total entity, with customer and employee parking provided on-site,
provision for goods delivery separated from customer access, aesthetic
considerations and protection from the elements, and landscaping and signage
in accordance with an approved plan.
E. Construction of a Facility in or within 50 feet of the outer boundary of
a right-of-way designated by a Federal, State, local, or Tribal government
for the location of communications Towers or above-ground utility
transmission or distribution lines and associated structures and equipment
and in active use for such purposes, provided:
1. The proposed Facility would not constitute a substantial increase in
size, under elements 1–3 of the definition in the Collocation Agreement,
over existing structures located in the right-of-way within the vicinity of
the proposed Facility, and;
2. The proposed Facility would not be located within the boundaries of a
Historic Property, as identified by the Applicant after a preliminary search
of relevant records.
Proposed Facilities within this exclusion must complete the process of
participation of Indian tribes and NHOs pursuant to Section IV of this
Agreement. If as a result of this process the Applicant or the Commission
identifies a Historic Property that may be affected, the Applicant must
complete the Section 106 review process pursuant to this Agreement
notwithstanding the exclusion.
F. Construction of a Facility in any area previously designated by the
SHPO/THPO at its discretion, following consultation with appropriate Indian
tribes and NHOs, as having limited potential to affect Historic Properties.
Such designation shall be documented by the SHPO/THPO and made available for
public review.
IV. Participation of Indian Tribes and Native Hawaiian Organizations in
Undertakings Off Tribal Lands
A. The Commission recognizes its responsibility to carry out consultation
with any Indian tribe or NHO that attaches religious and cultural
significance to a Historic Property if the property may be affected by a
Commission undertaking. This responsibility is founded in Sections
101(d)(6)(a–b) and 106 of the NHPA (16 U.S.C. 470a(d)(6)(a–b) and 470f), the
regulations of the Council (36 CFR Part 800), the Commission's environmental
regulations (47 CFR 1.1301–1.1319), and the unique legal relationship that
exists between the federal government and Indian Tribal governments, as
reflected in the Constitution of the United States, treaties, federal
statutes, Executive orders, and numerous court decisions. This historic
trust relationship requires the federal government to adhere to certain
fiduciary standards in its dealings with Indian Tribes. (Commission
Statement of Policy on Establishing a Government-to-Government Relationship
with Indian Tribes).
B. As an initial step to enable the Commission to fulfill its duty of
consultation, Applicants shall use reasonable and good faith efforts to
identify any Indian tribe or NHO that may attach religious and cultural
significance to Historic Properties that may be affected by an Undertaking.
Applicants should be aware that frequently, Historic Properties of religious
and cultural significance to Indian tribes and NHOs are located on
ancestral, aboriginal, or ceded lands of such tribes and organizations and
Applicants should take this into account when complying with their
responsibilities. Where an Indian tribe or NHO has voluntarily provided
information to the Commission's Tower Construction Notification System
regarding the geographic areas in which Historic Properties of religious and
cultural significance to that Indian tribe or NHO may be located, reference
to the Tower Construction Notification System shall constitute a reasonable
and good faith effort at identification with respect to that Indian tribe or
NHO. In addition, such reasonable and good faith efforts may include, but
are not limited to, seeking relevant information from the relevant
SHPO/THPO, Indian tribes, state agencies, the U.S. Bureau of Indian Affairs
(“BIA”), or, where applicable, any federal agency with land holdings within
the state ( e.g. , the U.S. Bureau of Land Management). Although these
agencies can provide useful information in identifying potentially affected
Indian tribes, contacting BIA, the SHPO or other federal and state agencies
is not a substitute for seeking information directly from Indian tribes that
may attach religious and cultural significance to a potentially affected
Historic Property, as described below.
C. After the Applicant has identified Indian tribes and NHOs that may attach
religious and cultural significance to potentially affected Historic
Properties, the Commission has the responsibility, and the Commission
imposes on the Applicant the obligation, to ensure that contact is made at
an early stage in the planning process with such Indian tribes and NHOs in
order to begin the process of ascertaining whether such Historic Properties
may be affected. This initial contact shall be made by the Commission or the
Applicant, in accordance with the wishes of the Indian tribe or NHO. This
contact shall constitute only an initial effort to contact the Indian tribe
or NHO, and does not in itself fully satisfy the Applicant's obligations or
substitute for government-to-government consultation unless the Indian tribe
or NHO affirmatively disclaims further interest or the Indian tribe or NHO
has otherwise agreed that such contact is sufficient. Depending on the
preference of the Indian tribe or NHO, the means of initial contact may
include, without limitation:
1. Electronic notification through the Commission's Tower Construction
Notification System;
2. Written communication from the Commission at the request of the
Applicant;
3. Written, e-mail, or telephonic notification directly from the Applicant
to the Indian tribe or NHO;
4. Any other means that the Indian Tribe or NHO has informed the Commission
are acceptable, including through the adoption of best practices pursuant to
Section IV.J, below; or
5. Any other means to which an Indian tribe or NHO and an Applicant have
agreed pursuant to Section IV.K, below.
D. The Commission will use its best efforts to ascertain the preferences of
each Indian tribe and NHO for initial contact, and to make these preferences
available to Applicants in a readily accessible format. In addition, the
Commission will use its best efforts to ascertain, and to make available to
Applicants, any locations or types of construction projects, within the
broad geographic areas in which Historic Properties of religious and
cultural significance to an Indian tribe or NHO may be located, for which
the Indian tribe or NHO does not expect notification. To the extent they are
comfortable doing so, the Commission encourages Indian tribes and NHOs to
accept the Tower Construction Notification System as an efficient and
thorough means of making initial contact.
E. In the absence of any contrary indication of an Indian tribe's or NHO's
preference, where an Applicant does not have a pre-existing relationship
with an Indian tribe or NHO, initial contact with the Indian tribe or NHO
shall be made through the Commission. Unless the Indian tribe or NHO has
indicated otherwise, the Commission may make this initial contact through
the Tower Construction Notification System. An Applicant that has a
pre-existing relationship with an Indian tribe or NHO shall make initial
contact in the manner that is customary to that relationship or in such
other manner as may be accepted by the Indian tribe or NHO. An Applicant
shall copy the Commission on any initial written or electronic direct
contact with an Indian tribe or NHO, unless the Indian tribe or NHO has
agreed through a best practices agreement or otherwise that such copying is
not necessary.
F. Applicants' direct contacts with Indian tribes and NHOs, where accepted
by the Indian tribe or NHO, shall be made in a sensitive manner that is
consistent with the reasonable wishes of the Indian tribe or NHO, where such
wishes are known or can be reasonably ascertained. In general, unless an
Indian tribe or NHO has provided guidance to the contrary, Applicants shall
follow the following guidelines:
1. All communications with Indian tribes shall be respectful of tribal
sovereignty;
2. Communications shall be directed to the appropriate representative
designated or identified by the tribal government or other governing body;
3. Applicants shall provide all information reasonably necessary for the
Indian tribe or NHO to evaluate whether Historic Properties of religious and
cultural significance may be affected. The parties recognize that it may be
neither feasible nor desirable to provide complete information about the
project at the time of initial contact, particularly when initial contact is
made early in the process. Unless the Indian tribe or NHO affirmatively
disclaims interest, however, it shall be provided with complete information
within the earliest reasonable time frame;
4. The Applicant must ensure that Indian tribes and NHOs have a reasonable
opportunity to respond to all communications. Ordinarily, 30 days from the
time the relevant tribal or NHO representative may reasonably be expected to
have received an inquiry shall be considered a reasonable time. Should a
tribe or NHO request additional time to respond, the Applicant shall afford
additional time as reasonable under the circumstances. However, where
initial contact is made automatically through the Tower Construction
Notification System, and where an Indian tribe or NHO has stated that it is
not interested in reviewing proposed construction of certain types or in
certain locations, the Applicant need not await a response to contact
regarding proposed construction meeting that description;
5. Applicants should not assume that failure to respond to a single
communication establishes that an Indian tribe or NHO is not interested in
participating, but should make a reasonable effort to follow up.
G. The purposes of communications between the Applicant and Indian tribes or
NHOs are: (1) To ascertain whether Historic Properties of religious and
cultural significance to the Indian tribe or NHO may be affected by the
undertaking and consultation is therefore necessary, and (2) where possible,
with the concurrence of the Indian tribe or NHO, to reach an agreement on
the presence or absence of effects that may obviate the need for
consultation. Accordingly, the Applicant shall promptly refer to the
Commission any request from a federally recognized Indian tribe for
government-to-government consultation. The Commission will then carry out
government-to-government consultation with the Indian tribe. Applicants
shall also seek guidance from the Commission in the event of any substantive
or procedural disagreement with an Indian tribe or NHO, or if the Indian
tribe or NHO does not respond to the Applicant's inquiries. Applicants are
strongly advised to seek guidance from the Commission in cases of doubt.
H. If an Indian tribe or NHO indicates that a Historic Property of religious
and cultural significance to it may be affected, the Applicant shall invite
the commenting tribe or organization to become a consulting party. If the
Indian tribe or NHO agrees to become a consulting party, it shall be
afforded that status and shall be provided with all of the information,
copies of submissions, and other prerogatives of a consulting party as
provided for in 36 CFR 800.2.
I. Information regarding Historic Properties to which Indian tribes or NHOs
attach religious and cultural significance may be highly confidential,
private, and sensitive. If an Indian tribe or NHO requests confidentiality
from the Applicant, the Applicant shall honor this request and shall, in
turn, request confidential treatment of such materials or information in
accordance with the Commission's rules and Section 304 of the NHPA (16
U.S.C. 470w–3(a)) in the event they are submitted to the Commission. The
Commission shall provide such confidential treatment consistent with its
rules and applicable federal laws. Although the Commission will strive to
protect the privacy interests of all parties, the Commission cannot
guarantee its own ability or the ability of Applicants to protect
confidential, private, and sensitive information from disclosure under all
circumstances.
J. In order to promote efficiency, minimize misunderstandings, and ensure
that communications among the parties are made in accordance with each
Indian tribe or NHO's reasonable preferences, the Commission will use its
best efforts to arrive at agreements regarding best practices with Indian
tribes and NHOs and their representatives. Such best practices may include
means of making initial contacts with Indian tribes and NHOs as well as
guidelines for subsequent discussions between Applicants and Indian tribes
or NHOs in fulfillment of the requirements of the Section 106 process. To
the extent possible, the Commission will strive to achieve consistency among
best practice agreements with Indian tribes and NHOs. Where best practices
exist, the Commission encourages Applicants to follow those best practices.
K. Nothing in this Section shall be construed to prohibit or limit
Applicants and Indian tribes or NHOs from entering into or continuing
pre-existing arrangements or agreements governing their contacts, provided
such arrangements or agreements are otherwise consistent with federal law
and no modification is made in the roles of other parties to the process
under this Nationwide Agreement without their consent. Documentation of such
alternative arrangements or agreements should be filed with the Commission.
V. Public Participation and Consulting Parties
A. On or before the date an Applicant submits the appropriate Submission
Packet to the SHPO/THPO, as prescribed by Section VII, below, the Applicant
shall provide the local government that has primary land use jurisdiction
over the site of the planned Undertaking with written notification of the
planned Undertaking.
B. On or before the date an Applicant submits the appropriate Submission
Packet to the SHPO/THPO, as prescribed by Section VII, below, the Applicant
shall provide written notice to the public of the planned Undertaking. Such
notice may be accomplished (1) through the public notification provisions of
the relevant local zoning or local historic preservation process for the
proposed Facility; or (2) by publication in a local newspaper of general
circulation. In the alternative, an Applicant may use other appropriate
means of providing public notice, including seeking the assistance of the
local government.
C. The written notice to the local government and to the public shall
include: (1) The location of the proposed Facility including its street
address; (2) a description of the proposed Facility including its height and
type of structure; (3) instruction on how to submit comments regarding
potential effects on Historic Properties; and (4) the name, address, and
telephone number of a contact person.
D. A SHPO/THPO may make available lists of other groups, including Indian
tribes, NHOs and organizations of Indian tribes or NHOs, which should be
provided notice for Undertakings to be located in particular areas.
E. If the Applicant receives a comment regarding potentially affected
Historic Properties, the Applicant shall consider the comment and either
include it in the initial submission to the SHPO/THPO, or, if the initial
submission has already been made, immediately forward the comment to the
SHPO/THPO for review. An Applicant need not submit to the SHPO/THPO any
comment that does not substantially relate to potentially affected Historic
Properties.
F. The relevant SHPO/THPO, Indian tribes and NHOs that attach religious and
cultural significance to Historic Properties that may be affected, and the
local government are entitled to be consulting parties in the Section 106
review of an Undertaking. The Council may enter the Section 106 process for
a given Undertaking, on Commission invitation or on its own decision, in
accordance with 36 CFR Part 800, Appendix A. An Applicant shall consider all
written requests of other individuals and organizations to participate as
consulting parties and determine which should be consulting parties. An
Applicant is encouraged to grant such status to individuals or organizations
with a demonstrated legal or economic interest in the Undertaking, or
demonstrated expertise or standing as a representative of local or public
interest in historic or cultural resources preservation. Any such individual
or organization denied consulting party status may petition the Commission
for review of such denial. Applicants may seek assistance from the
Commission in identifying and involving consulting parties. All entities
granted consulting party status shall be identified to the SHPO/THPO as part
of the Submission Packet.
G. Consulting parties are entitled to: (1) Receive notices, copies of
submission packets, correspondence and other documents provided to the
SHPO/THPO in a Section 106 review; and (2) be provided an opportunity to
have their views expressed and taken into account by the Applicant, the
SHPO/THPO and, where appropriate, by the Commission.
VI. Identification, Evaluation, and Assessment of Effects
A. In preparing the Submission Packet for the SHPO/THPO and consulting
parties pursuant to Section VII of this Nationwide Agreement and Attachments
3 and 4, the Applicant shall: (1) Define the area of potential effects
(APE); (2) identify Historic Properties within the APE; (3) evaluate the
historic significance of identified properties as appropriate; and (4)
assess the effects of the Undertaking on Historic Properties. The standards
and procedures described below shall be applied by the Applicant in
preparing the Submission Packet, by the SHPO/THPO in reviewing the
Submission Packet, and where appropriate, by the Commission in making
findings.
B. Exclusion of Specific Geographic Areas from Review.
The SHPO/THPO, consistent with relevant State or tribal procedures, may
specify geographic areas in which no review is required for direct effects
on archeological resources or no review is required for visual effects.
C. Area of Potential Effects.
1. The term “Area of Potential Effects” is defined in Section II.A.3 of this
Nationwide Agreement. For purposes of this Nationwide Agreement, the APE for
direct effects and the APE for visual effects are further defined and are to
be established as described below.
2. The APE for direct effects is limited to the area of potential ground
disturbance and any property, or any portion thereof, that will be
physically altered or destroyed by the Undertaking.
3. The APE for visual effects is the geographic area in which the
Undertaking has the potential to introduce visual elements that diminish or
alter the setting, including the landscape, where the setting is a
character-defining feature of a Historic Property that makes it eligible for
listing on the National Register.
4. Unless otherwise established through consultation with the SHPO/THPO, the
presumed APE for visual effects for construction of new Facilities is the
area from which the Tower will be visible:
a. Within a half mile from the tower site if the proposed Tower is 200 feet
or less in overall height;
b. Within3/4of a mile from the tower site if the proposed Tower is more than
200 but no more than 400 feet in overall height; or
c. Wthin 11/2miles from the proposed tower site if the proposed Tower is
more than 400 feet in overall height.
5. In the event the Applicant determines, or the SHPO/THPO recommends, that
an alternative APE for visual effects is necessary, the Applicant and the
SHPO/THPO may mutually agree to an alternative APE.
6. If the Applicant and the SHPO/THPO, after using good faith efforts,
cannot reach an agreement on the use of an alternative APE, either the
Applicant or the SHPO/THPO may submit the issue to the Commission for
resolution. The Commission shall make its determination concerning an
alternative APE within a reasonable time.
D. Identification and Evaluation of Historic Properties.
1. Identification and Evaluation of Historic Properties Within the APE for
Visual Effects.
a. Except to identify Historic Properties of religious and cultural
significance to Indian tribes and NHOs, Applicants shall identify Historic
Properties within the APE for visual effects by reviewing the following
records. Applicants are required to review such records only to the extent
they are available at the offices of the SHPO/THPO or can be found in
publicly available sources identified by the SHPO/THPO. With respect to
these properties, Applicants are not required to undertake a Field Survey or
other measures other than reviewing these records in order to identify
Historic Properties:
i. Properties listed in the National Register;
ii. Properties formally determined eligible for listing by the Keeper of the
National Register;
iii. Properties that the SHPO/THPO certifies are in the process of being
nominated to the National Register;
iv. Properties previously determined eligible as part of a consensus
determination of eligibility between the SHPO/THPO and a Federal Agency or
local government representing the Department of Housing and Urban
Development (HUD); and
v. Properties listed in the SHPO/THPO Inventory that the SHPO/THPO has
previously evaluated and found to meet the National Register criteria, and
that are identified accordingly in the SHPO/THPO Inventory.
b. At an early stage in the planning process and in accordance with Section
IV of this Nationwide Agreement, the Commission or the Applicant, as
appropriate, shall gather information from Indian tribes or NHOs identified
pursuant to Section IV.B to assist in identifying Historic Properties of
religious and cultural significance to them within the APE for visual
effects. Such information gathering may include a Field Survey where
appropriate.
c. Based on the sources listed above and public comment received pursuant to
Section V of this Nationwide Agreement, the Applicant shall include in its
Submission Packet a list of properties it has identified as apparent
Historic Properties within the APE for visual effects.
i. During the review period described in Section VII.A, the SHPO/THPO may
identify additional properties included in the SHPO/THPO Inventory and
located within the APE that the SHPO/THPO considers eligible for listing on
the National Register, and notify the Applicant pursuant to Section VII.A.4.
ii. The SHPO/THPO may also advise the Applicant that previously identified
properties on the list no longer qualify for inclusion in the National
Register.
d. Applicants are encouraged at their discretion to use the services of
professionals who meet the Secretary of the Interior's Professional
Qualification Standards when identifying Historic Properties within the APE
for visual effects.
e. Applicants are not required to evaluate the historic significance of
properties identified pursuant to Section VI.D.1.a., but may rely on the
previous evaluation of these properties. Applicants may, at their
discretion, evaluate whether such properties are no longer eligible for
inclusion in the National Register and recommend to the SHPO/THPO their
removal from consideration. Any such evaluation shall be performed by a
professional who meets the Secretary of the Interior's Professional
Qualification Standards.
2. Identification and Evaluation of Historic Properties Within the APE for
Direct Effects.
a. In addition to the properties identified pursuant to Section VI.D.1,
Applicants shall make a reasonable good faith effort to identify other above
ground and archeological Historic Properties, including buildings,
structures, and historic districts, that lie within the APE for direct
effects. Such reasonable and good faith efforts may include a Field Survey
where appropriate.
b. Identification and evaluation of Historic Properties within the APE for
direct effects, including any finding that an archeological Field Survey is
not required, shall be undertaken by a professional who meets the Secretary
of the Interior's Professional Qualification Standards. Identification and
evaluation relating to archeological resources shall be performed by a
professional who meets the Secretary of the Interior's Professional
Qualification Standards in archeology.
c. Except as provided below, the Applicant need not undertake a Field Survey
for archeological resources where:
i. the depth of previous disturbance exceeds the proposed construction depth
(excluding footings and other anchoring mechanisms) by at least 2 feet as
documented in the Applicant's siting analysis; or
ii. geomorphological evidence indicates that cultural resource-bearing soils
do not occur within the project area or may occur but at depths that exceed
2 feet below the proposed construction depth.
d. At an early stage in the planning process and in accordance with Section
IV of this Nationwide Agreement, the Commission or the Applicant, as
appropriate, shall gather information from Indian tribes or NHOs identified
pursuant to Section IV.B to assist in identifying archeological Historic
Properties of religious and cultural significance to them within the APE for
direct effects. If an Indian tribe or NHO provides evidence that supports a
high probability of the presence of intact archeological Historic Properties
within the APE for direct effects, the Applicant shall conduct an
archeological Field Survey notwithstanding Section VI.D.2.c.
e. Where the Applicant pursuant to Sections VI.D.2.c and VI.D.2.d finds that
no archeological Field Survey is necessary, it shall include in its
Submission Packet a report substantiating this finding. During the review
period described in Section VII.A, the SHPO/THPO may, based on evidence that
supports a high probability of the presence of intact archeological Historic
Properties within the APE for direct effects, notify the Applicant that the
Submission Packet is inadequate without an archeological Field Survey
pursuant to Section VII.A.4.
f. The Applicant shall conduct an archeological Field Survey within the APE
for direct effects if neither of the conditions in Section VI.D.2.c applies,
or if required pursuant to Section VI.D.2.d or e. The Field Survey shall be
conducted in consul-tation with the SHPO/THPO and consulting Indian tribes
or NHOs.
g. The Applicant, in consultation with the SHPO/THPO and appropriate Indian
tribes or NHOs, shall apply the National Register criteria (36 CFR Part 63)
to properties identified within the APE for direct effects that have not
previously been evaluated for National Register eligibility, with the
exception of those identified pursuant to Section VI.D.1.a.
3. Dispute Resolution. Where there is a disagreement regarding the
identification or eligibility of a property, and after attempting in good
faith to resolve the issue the Applicant and the SHPO/THPO continue to
disagree, the Applicant or the SHPO/THPO may submit the issue to the
Commission. The Commission shall handle such submissions in accordance with
36 CFR 800.4(c)(2).
E. Assessment of Effects
1. Applicants shall assess effects of the Undertaking on Historic Properties
using the Criteria of Adverse Effect (36 CFR 800.5(a)(1)).
2. In determining whether Historic Properties in the APE may be adversely
affected by the Undertaking, the Applicant should consider factors such as
the topography, vegetation, known presence of Historic Properties, and
existing land use.
3. An Undertaking will have a visual adverse effect on a Historic Property
if the visual effect from the Facility will noticeably diminish the
integrity of one or more of the characteristics qualifying the property for
inclusion in or eligibility for the National Register. Construction of a
Facility will not cause a visual adverse effect except where visual setting
or visual elements are character-defining features of eligibility of a
Historic Property located within the APE.
4. For collocations not excluded from review by the Collocation Agreement or
this Agreement, the assessment of effects will consider only effects from
the newly added or modified Facilities and not effects from the existing
Tower or Antenna.
5. Assessment pursuant to this Agreement shall be performed by professionals
who meet the Secretary of the Interior's Professional Qualification
Standards.
VII. Procedures
A. Use of the Submission Packet
1. For each Undertaking within the scope of this Nationwide Agreement, the
Applicant shall initially determine whether there are no Historic Properties
affected, no adverse effect on Historic Properties, or an adverse effect on
Historic Properties. The Applicant shall prepare a Submission Packet and
submit it to the SHPO/THPO and to all consulting parties, including any
Indian tribe or NHO that is participating as a consulting party.
2. The SHPO/THPO shall have 30 days from receipt of the requisite
documentation to review the Submission Packet.
3. If the SHPO/THPO receives a comment or objection, in accordance with
Section V.E, more than 25 but less than 31 days following its receipt of the
initial submission, the SHPO/THPO shall have five calendar days to consider
such comment or objection before the Section 106 process is complete or the
matter may be submitted to the Commission.
4. If the SHPO/THPO determines the Applicant's Submission Packet is
inadequate, or if the SHPO/THPO identifies additional Historic Properties
within the APE, the SHPO/THPO will immediately notify the Applicant and
describe any deficiencies. The SHPO/THPO may close its file without
prejudice if the Applicant does not resubmit an amended Submission Packet
within 60 days following the Applicant's receipt of the returned Submission
Packet. Resubmission of the Submission Packet to the SHPO/THPO commences a
new 30 day period for review.
B. Determinations of No Historic Properties Affected
1. If the SHPO/THPO concurs in writing with the Applicant's determination of
no Historic Properties affected, it is deemed that no Historic Properties
exist within the APE or the Undertaking will have no effect on any Historic
Properties located within the APE. The Section 106 process is then complete,
and the Applicant may proceed with the project, unless further processing
for reasons other than Section 106 is required.
2. If the SHPO/THPO does not provide written notice to the Applicant that it
agrees or disagrees with the Applicant's determination of no Historic
Properties affected within 30 days following receipt of a complete
Submission Packet, it is deemed that no Historic Properties exist within the
APE or the Undertaking will have no effect on Historic Properties. The
Section 106 process is then complete and the Applicant may proceed with the
project, unless further processing for reasons other than Section 106 is
required.
3. If the SHPO/THPO provides written notice within 30 days following receipt
of the Submission Packet that it disagrees with the Applicant's
determination of no Historic Properties affected, it should provide a short
and concise explanation of exactly how the criteria of eligibility and/or
criteria of Adverse Effect would apply. The Applicant and the SHPO/THPO
should engage in further discussions and make a reasonable and good faith
effort to resolve their disagreement.
4. If the SHPO/THPO and Applicant do not resolve their disagreement, the
Applicant may at any time choose to submit the matter, together with all
relevant documents, to the Commission, advising the SHPO/THPO accordingly.
C. Determinations of No Adverse Effect
1. If the SHPO/THPO concurs in writing with the Applicant's determination of
no adverse effect, the Facility is deemed to have no adverse effect on
Historic Properties. The Section 106 process is then complete and the
Applicant may proceed with the project, unless further processing for
reasons other than Section 106 is required.
2. If the SHPO/THPO does not provide written notice to the Applicant that it
agrees or disagrees with the Applicant's determination of no adverse effect
within thirty days following its receipt of a complete Submission Packet,
the SHPO/THPO is presumed to have concurred with the Applicant's
determination. The Applicant shall, pursuant to procedures to be promulgated
by the Commission, forward a copy of its Submission Packet to the
Commission, together with all correspondence with the SHPO/THPO and any
comments or objections received from the public, and advise the SHPO/THPO
accordingly. The Section 106 process shall then be complete unless the
Commission notifies the Applicant otherwise within 15 days after the
Commission receives the Submission Packet and accompanying material
electronically or 25 days after the Commission receives this material by
other means.
3. If the SHPO/THPO provides written notice within 30 days following receipt
of the Submission Packet that it disagrees with the Applicant's
determination of no adverse effect, it should provide a short and concise
explanation of the Historic Properties it believes to be affected and
exactly how the criteria of Adverse Effect would apply. The Applicant and
the SHPO/THPO should engage in further discussions and make a reasonable and
good faith effort to resolve their disagreement.
4. If the SHPO/THPO and Applicant do not resolve their dispute, the
Applicant may at any time choose to submit the matter, together with all
relevant documents, to the Commission, advising the SHPO/THPO accordingly.
5. Whenever the Applicant or the Commission concludes, or a SHPO/THPO
advises, that a proposed project will have an adverse effect on a Historic
Property, after applying the criteria of Adverse Effect, the Applicant and
the SHPO/THPO are encouraged to investigate measures that would avoid the
adverse effect and permit a conditional “No Adverse Effect” determination.
6. If the Applicant and SHPO/THPO mutually agree upon conditions that will
result in no adverse effect, the Applicant shall advise the SHPO/THPO in
writing that it will comply with the conditions. The Applicant can then make
a determination of no adverse effect subject to its implementation of the
conditions. The Undertaking is then deemed conditionally to have no adverse
effect on Historic Properties, and the Applicant may proceed with the
project subject to compliance with those conditions. Where the Commission
has previously been involved in the matter, the Applicant shall notify the
Commission of this resolution.
D. Determinations of Adverse Effect
1. If the Applicant determines at any stage in the process that an
Undertaking would have an adverse effect on Historic Properties within the
APE(s), or if the Commission so finds, the Applicant shall submit to the
SHPO/THPO a plan designed to avoid, minimize, or mitigate the adverse
effect.
2. The Applicant shall forward a copy of its submission with its mitigation
plan and the entire record to the Council and the Commission. Within fifteen
days following receipt of the Applicant's submission, the Council shall
indicate whether it intends to participate in the negotiation of a
Memorandum of Agreement by notifying both the Applicant and the Commission.
3. Where the Undertaking would have an adverse effect on a National Historic
Landmark, the Commission shall request the Council to participate in
consultation and shall invite participation by the Secretary of the
Interior.
4. The Applicant, SHPO/THPO, and consulting parties shall negotiate a
Memorandum of Agreement that shall be sent to the Commission for review and
execution.
5. If the parties are unable to agree upon mitigation measures, they shall
submit the matter to the Commission, which shall coordinate additional
actions in accordance with the Council's rules, including 36 CFR
800.6(b)(1)(v) and 800.7.
E. Retention of Information
The SHPO/THPO shall, subject to applicable state or tribal laws and
regulations, and in accordance with its rules and procedures governing
historic property records, retain the information in the Submission Packet
pertaining to the location and National Register eligibility of Historic
Properties and make such information available to Federal agencies and
Applicants in other Section 106 reviews, where disclosure is not prevented
by the confidentiality standards in 36 CFR 800.11(c).
F. Removal of Obsolete Towers
Applicants that construct new Towers under the terms of this Nationwide
Agreement adjacent to or within the boundaries of a Historic Property are
encouraged to disassemble such Towers should they become obsolete or remain
vacant for a year or more.
VIII. Emergency Situations
Unless the Commission deems it necessary to issue an emergency authorization
in accordance with its rules, or the Undertaking is otherwise excluded from
Section 106 review pursuant to the Collocation Agreement or Section III of
this Agreement, the procedures in this Agreement shall apply.
IX. Inadvertent or Post-Review Discoveries
A. In the event that an Applicant discovers a previously unidentified site
within the APE that may be a Historic Property that would be affected by an
Undertaking, the Applicant shall promptly notify the Commission, the
SHPO/THPO and any potentially affected Indian tribe or NHO, and within a
reasonable time shall submit to the Commission, the SHPO/THPO and any
potentially affected Indian tribe or NHO, a written report evaluating the
property's eligibility for inclusion in the National Register. The Applicant
shall seek the input of any potentially affected Indian tribe or NHO in
preparing this report. If found during construction, construction must cease
until evaluation has been completed.
B. If the Applicant and SHPO/THPO concur that the discovered resource is
eligible for listing in the National Register, the Applicant will consult
with the SHPO/THPO, and Indian tribes or NHOs as appropriate, to evaluate
measures that will avoid, minimize, or mitigate adverse effects. Upon
agreement regarding such measures, the Applicant shall implement them and
notify the Commission of its action.
C. If the Applicant and SHPO/THPO cannot reach agreement regarding the
eligibility of a property, the matter will be referred to the Commission for
review in accordance with Section VI.D.3. If the Applicant and the SHPO/THPO
cannot reach agreement on measures to avoid, minimize, or mitigate adverse
effects, the matter shall be referred to the Commission for appropriate
action.
D. If the Applicant discovers any human or burial remains during
implementation of an Undertaking, the Applicant shall cease work
immediately, notify the SHPO/THPO and Commission, and adhere to applicable
State and Federal laws regarding the treatment of human or burial remains.
X. Construction Prior to Compliance With Section 106
A. The terms of Section 110(k) of the National Historic Preservation Act (16
U.S.C. 470h–2(k)) (“Section 110(k)”) apply to Undertakings covered by this
Agreement. Any SHPO/THPO, potentially affected Indian tribe or NHO, the
Council, or a member of the public may submit a complaint to the Commission
alleging that a facility has been constructed or partially constructed after
the effective date of this Agreement in violation of Section 110(k). Any
such complaint must be in writing and supported by substantial evidence
specifically describing how Section 110(k) has been violated. Upon receipt
of such complaint the Commission will assume responsibility for
investigating the applicability of Section 110(k) in accordance with the
provisions herein.
B. If upon its initial review, the Commission concludes that a complaint on
its face demonstrates a probable violation of Section 110(k), the Commission
will immediately notify and provide the relevant Applicant with copies of
the Complaint and order that all construction of a new tower or installation
of any new collocations immediately cease and remain suspended pending the
Commission's resolution of the complaint.
C. Within 15 days of receipt, the Commission will review the complaint and
take appropriate action, which the Commission may determine, and which may
include the following:
1. Dismiss the complaint without further action if the complaint does not
establish a probable violation of Section 110(k) even if the allegations are
taken as true;
2. Provide the Applicant with a copy of the complaint and request a written
response within a reasonable time;
3. Request from the Applicant a background report which documents the
history and chronology of the planning and construction of the Facility;
4. Request from the Applicant a summary of the steps taken to comply with
the requirements of Section 106 as set forth in this Nationwide Agreement,
particularly the application of the Criteria of Adverse Effect;
5. Request from the Applicant copies of any documents regarding the planning
or construction of the Facility, including correspondence, memoranda, and
agreements;
6. If the Facility was constructed prior to full compliance with the
requirements of Section 106, request from the Applicant an explanation for
such failure, and possible measures that can be taken to mitigate any
resulting adverse effects on Historic Properties.
D. If the Commission concludes that there is a probable violation of Section
110(k) ( i.e. , that “with intent to avoid the requirements of Section 106,
[an Applicant] has intentionally significantly adversely affected a Historic
Property”), the Commission shall notify the Applicant and forward a copy of
the documentation set forth in Section X.C. to the Council and, as
appropriate, the SHPO/THPO and other consulting parties, along with the
Commission's opinion regarding the probable violation of Section 110(k). The
Commission will consider the views of the consulting parties in determining
a resolution, which may include negotiating a Memorandum of Agreement (MOA)
that will resolve any adverse effects. The Commission, SHPO/THPO, Council,
and Applicant shall sign the MOA to evidence acceptance of the mitigation
plan and conclusion of the Section 106 review process.
E. Nothing in Section X or any other provision of this Agreement shall
preclude the Commission from continuing or instituting enforcement
proceedings under the Communications Act and its rules against an Applicant
that has constructed a Facility prior to completing required review under
this Agreement. Sanctions for violations of the Commission's rules may
include any sanctions allowed under the Communications Act and the
Commission's rules.
F. The Commission shall provide copies of all concluding reports or orders
for all Section 110(k) investigations conducted by the Commission to the
original complainant, the Applicant, the relevant local government, and
other consulting parties.
G. Facilities that are excluded from Section 106 review pursuant to the
Collocation Agreement or Section III of this Agreement are not subject to
review under this provision. Any parties who allege that such Facilities
have violated Section 110(k) should notify the Commission in accordance with
the provisions of Section XI, Public Comments and Objections.
XI. Public Comments and Objections
Any member of the public may notify the Commission of concerns it has
regarding the application of this Nationwide Agreement within a State or
with regard to the review of individual Undertakings covered or excluded
under the terms of this Agreement. Comments related to telecommunications
activities shall be directed to the Wireless Telecommunications Bureau and
those related to broadcast facilities to the Media Bureau. The Commission
will consider public comments and following consultation with the SHPO/THPO,
potentially affected Indian tribes and NHOs, or Council, where appropriate,
take appropriate actions. The Commission shall notify the objector of the
outcome of its actions.
XII. Amendments
The signatories may propose modifications or other amendments to this
Nationwide Agreement. Any amendment to this Agreement shall be subject to
appropriate public notice and comment and shall be signed by the Commission,
the Council, and the Conference.
XIII. Termination
A. Any signatory to this Nationwide Agreement may request termination by
written notice to the other parties. Within sixty (60) days following
receipt of a written request for termination from a signatory, all other
signatories shall discuss the basis for the termination request and seek
agreement on amendments or other actions that would avoid termination.
B. In the event that this Agreement is terminated, the Commission and all
Applicants shall comply with the requirements of 36 CFR Part 800.
XIV. Annual Review
The signatories to this Nationwide Agreement will meet annually on or about
the anniversary of the effective date of the Agreement to discuss the
effectiveness of this Agreement, including any issues related to improper
implementation, and to discuss any potential amendments that would improve
the effectiveness of this Agreement.
XV. Reservation of Rights
Neither execution of this Agreement, nor implementation of or compliance
with any term herein, shall operate in any way as a waiver by any party
hereto, or by any person or entity complying herewith or affected hereby, of
a right to assert in any court of law any claim, argument or defense
regarding the validity or interpretation of any provision of the NHPA or its
implementing regulations contained in 36 CFR Part 800.
XVI. Severability
If any section, subsection, paragraph, sentence, clause or phrase in this
Agreement is, for any reason, held to be unconstitutional or invalid or
ineffective, such decision shall not affect the validity or effectiveness of
the remaining portions of this Agreement.
In witness whereof, the Parties have caused this Agreement to be executed by
their respective authorized officers as of the day and year first written
above.
Federal Communications Commission
____________________
Chairman
Date____________________
Advisory Council on Historic Preservation
____________________
Chairman
Date____________________
National Conference of State Historic Preservation Officers
____________________
Date____________________
[ 70 FR 580 , Jan. 4, 2005]
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