§  1.94   Consent order procedures.

   (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]