§ 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]

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