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Proposed Rule

Amendment of Certain of the Commission's Rules of Practice and Procedure and Rules of Commission Organization

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Information about this document as published in the Federal Register.

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AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

This document seeks comment on proposed revisions to the Commission's procedural rules and organizational rules. The proposals are intended to increase efficiency and modernize our procedures, enhance the openness and transparency of Commission proceedings, and clarify certain procedural rules. We seek comment on the proposed rule language, as well as the other proposals contained in this document.

DATES:

Comments must be submitted by May 10, 2010 and reply comments must be submitted by June 8, 2010. Written comments on the Paperwork Reduction Act proposed information collection requirements must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before May 24, 2010.

ADDRESSES:

You may submit comments, identified by GC Docket No. 10-44, by any of the following methods:

  • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
  • Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/​ecfs2/​. Follow the instructions for submitting comments.
  • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-0432.

For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

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FOR FURTHER INFORMATION CONTACT:

Richard Welch, Office of General Counsel, 202-418-1740. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, send an e-mail to PRA@fcc.gov or contact Leslie Smith, OMD, 202-418-0217.

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SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Notice of Proposed Rulemaking, FCC 10-32, adopted on February 18, 2010, and released on February 22, 2010. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998.

  • Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/​ecfs2/​ or the Federal eRulemaking Portal: http://www.regulations.gov.
  • ECFS filers must transmit one electronic copy of the comments for GC Docket No. 10-44. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket number. Parties may also submit an electronic comment by Internet e-mail.
  • Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

  • All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
  • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
  • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

Parties shall also serve one copy with the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, or via e-mail to fcc@bcpiweb.com. Documents in GC Docket No. 10-43 will be available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The documents may also be purchased from BCPI, telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562, e-mail fcc@bcpiweb.com.

In addition to filing comments with the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to the Federal Communications Commission via e-mail to PRA@fcc.gov and to Nicholas A. Fraser, Office of Management and Budget, via e-mail to Nicholas_A._Fraser@omb.eop.gov or via fax at 202-395-5167.

I. Introduction

1. This document seeks comment on proposed revisions to the Commission's part 1 procedural rules and part 0 organizational rules. The proposals are intended to increase efficiency and modernize our procedures, enhance the openness and transparency of Commission proceedings, and clarify certain procedural rules. We propose specific draft revised rules. We seek comment on the proposed rule language, as well as the other proposals contained in this Notice of Proposed Rulemaking. (We note that because the part 1 and part 0 rules are procedural and organizational in nature, notice and comment is not required under the Administrative Procedure Act. 5 U.S.C. 553(b)(A) (notice and comment rulemaking requirements do not apply to rules of agency organization, procedure, or practice). Nonetheless, in the spirit of openness and transparency, and to assemble the best possible record to inform our decisions, we have elected voluntarily to utilize notice and comment procedures in this instance.)

2. The proposed rule revisions fall into three general categories. First, we seek to improve and streamline our processes governing reconsideration of Commission decisions. Specifically, we propose to delegate authority to the staff to dismiss or deny defective or repetitive petitions filed with the Commission for reconsideration of Commission decisions. We also propose to amend the rule that authorizes the Commission to reconsider a decision on its own motion within 30 days to make clear that the Commission may modify a decision, not merely set it aside or vacate it. Second, we seek to increase the efficiency of our docket management and make it easier for interested persons to follow and participate in our proceedings. To achieve this goal, we propose to expand the use of docketed proceedings, increase electronic filing of comments, and delegate authority to the staff in certain circumstances to notify parties electronically of docket filings and close inactive dockets. Third, we seek to address uncertainties that have developed in the application of two part 1 rules. We propose to set a default effective date for FCC rules in the event the Commission does not specify an effective date in its rulemaking order. In addition, we propose to revise our computation of time rule to adopt the “next business day” approach when a Commission rule or order specifies that Commission action shall occur on a day when the agency is not open for business.

II. Discussion

A. Reconsideration of Agency Decisions

1. Sections 1.106 and 1.429—Petitions for Reconsideration

3. We have two procedural rules governing petitions for reconsideration of Commission orders. Section 1.429 addresses petitions for reconsideration of final orders issued in notice and comment rulemaking proceedings. Section 1.106 is a “catch-all” provision that governs petitions for reconsideration in all agency proceedings other than rulemaking proceedings, that is, all adjudications. The captions of the two rules, however, are generic and do not explicitly reflect the dichotomy between rulemaking and adjudication. We propose to change the captions of these two rules to reflect the categories of proceedings that each rule governs.

4. We also propose to amend these rules to allow the agency to resolve certain petitions for reconsideration more efficiently and expeditiously. The agency each year receives many petitions asking the full Commission to reconsider its decisions. Some of those petitions for reconsideration are procedurally defective or merely repeat arguments that the Commission previously has rejected. Such petitions Start Printed Page 14403do not warrant consideration by the full Commission, and we therefore propose to amend §§ 1.429 and 1.106 to authorize the staff to dismiss or deny them on delegated authority. A non-exhaustive list of such cases might include, for example, petitions that:

  • Omit information required by these rules to be included with a petition for reconsideration or otherwise fail to comply with procedural requirements set forth by the rules;
  • Fail to identify any material error, omission, or reason warranting reconsideration or fail to state with particularity the respects in which petitioner believes the action taken should be changed;
  • Rely on arguments that have been fully considered and rejected within the same proceeding;
  • Relate to matters outside the scope of the order for which reconsideration has been requested;
  • Rely on facts or arguments that could have been presented previously to the Commission or its staff but were not;
  • Relate to an order for which reconsideration has been previously denied on similar grounds; or
  • Are untimely.

We seek comment on these examples, as well as other categories of petitions for reconsideration that may not warrant action by the full Commission and might be appropriate for resolution by the staff on delegated authority. We propose to specify in our rules criteria governing petitions for reconsideration that would be subject to this approach. To that end, we propose draft rule revisions. (A petitioner whose reconsideration petition was dismissed or denied by the staff may file an application to have the full Commission review the staff's action. See 47 U.S.C. 155(c)(4); 47 CFR 1.115(a). In such circumstances, the filing of an application for review to the full Commission is a legal prerequisite for judicial review of the staff's action on reconsideration. See 47 U.S.C. 155(c)(7); 47 CFR 1.115(k).)

5. In addition, we propose to amend our reconsideration rules to make clear that paper copies of petitions for reconsideration may be submitted to the Commission's Secretary by mail, by commercial courier, or by hand. As discussed below, however, our goal is to increase the use of electronic filing of pleadings in the future. Thus, for those matters that are docketed on the Commission's Electronic Comment Filing System (ECFS), we strongly encourage persons to file any petitions for reconsideration of Commission action by electronic submission to ECFS. (To ensure that parties wishing to seek reconsideration have clear notice of our filing requirements, the proposed rule changes would emphasize that petitions for reconsideration submitted by electronic means other than ECFS (for example, by electronic mail) and petitions submitted directly to staff shall not be considered to have been properly filed absent a rule specifically permitting the alternative means of electronic filing for the particular submission at issue. Although a reconsideration petition submitted by electronic mail does not satisfy proper filing requirements absent a rule specifically permitting such a submission, it is still helpful and good practice to also send a copy of a reconsideration petition by electronic mail to any staff persons that the filer knows are involved with the proceeding or tend to be involved with the issues.) We seek comment on this proposal.

6. Certain licensing proceedings have different electronic filing systems and procedures that are distinct from those that apply to ECFS. Pleadings filed electronically through the Commission's Universal Licensing System (ULS), for example, including petitions for reconsideration, are subject to separate procedures that we do not propose to amend at this time.

7. Finally, we note that § 1.429 does not by its express terms apply to rules adopted without notice and comment. We seek comment on whether we should amend § 1.429 to make clear that this rule, rather than the “catch-all” reconsideration provision in § 1.106, applies to petitions for reconsideration of Commission orders adopting rules without notice and comment.

2. Section 1.108—Reconsideration on the Commission's Own Motion

8. Section 1.108 of the Commission's rules, captioned “Reconsideration on Commission's own motion,” states: “The Commission may, on its own motion, set aside any action made or taken by it within 30 days from the date of public notice of such action, as that date is defined in § 1.4(b) of these rules.”

As the caption suggests, the purpose of the rule is to give the Commission, when acting on its own motion, the full panoply of powers implied by the term “reconsider.” As set forth in § 1.106(k)(1) of the Commission's rules, which concerns petitions for reconsideration in non-rulemaking proceedings, these powers include the power to reverse or modify an action, to remand a matter for further proceedings, or to initiate other further proceedings. One court, however, has construed the text of § 1.108 more narrowly, limiting its scope to the power to “set aside” an action in the literal sense. Under that court's interpretation, the scope of permissible reconsiderations excludes revising or modifying a rule. (See Sprint Corp. v. FCC, 315 F.3d 369, 374-75 (D.C. Cir. 2003) (holding that a Commission action “revising and modifying” a rule was not “set[ting] aside” the rule within the scope of § 1.108).) In order to clarify that section 1.108 does not limit the Commission's flexibility to revisit its decisions on its own motion within 30 days, we propose revising that rule to conform with the fuller definition of “reconsider” in § 1.106(k)(1). We seek comment on this proposal.

Docketing of Proceedings, Electronic Filing of Pleadings, and Electronic Notification

3. Expanded Use of Docketed Proceedings

9. The Commission assigns a docket number to many of its proceedings. These include notice and comment rulemaking proceedings and certain adjudicatory proceedings so designated by the Commission or the staff, such as adjudicatory proceedings that may be expected to attract large numbers of commenters. For any proceeding that is assigned a formal docket number, the Commission's Reference Information Center (a unit of the Consumer and Governmental Affairs Bureau) maintains the official administrative record in paper form, as well as the public files electronically on ECFS.

10. Many proceedings before the Commission, however, are not docketed. These non-docketed proceedings include routine matters that may not be expected to involve large numbers of commenters or parties. In such circumstances, the individual bureau or office handling the matter may assign the proceeding a unique file number or other form of identifier instead of a formal docket number. In some types of matters, no numerical identifier is assigned. The relevant bureau or office also maintains the public files of the proceeding and assists the Office of General Counsel in preparing the certified list of items in the administrative record for purposes of judicial review. Often the record may be in paper format only, and thus is not susceptible to electronic search and query. In such cases, interested persons may find it difficult to follow and participate in non-docketed proceedings.

11. Given the limitations and challenges noted above regarding certain non-docketed proceedings, we believe we can and should enhance Start Printed Page 14404openness, transparency, and accuracy by utilizing the formal docket process for a larger portion of Commission proceedings. The docket number, often in conjunction with enhanced electronic filing through ECFS as discussed below, should facilitate public access and participation in our proceedings. We seek comment on this general approach. In particular, are there specific types of proceedings that currently are not docketed that would be candidates to migrate to the formal docket system? In contrast, are there particular proceedings that do not lend themselves to the docket system and should continue to be handled in a non-docketed manner by the relevant bureau or office? In general, we believe it is in the public interest to utilize the formal docket system whenever it is technically feasible. (Although we seek notice and comment here on the general approach of applying a formal docket process to additional Commission proceedings, we note that any subsequent determination that specific proceedings (or types of proceedings) should be docketed would not require the use of notice and comment procedures to the extent that those changes would involve matters of agency procedure and practice. See 5 U.S.C. 553(b)(A).) We recognize, however, that certain filings at the Commission by their nature may not be well suited for a docketed proceeding. Thus, while we may be able to reduce the number and variety of non-docketed proceedings significantly, we may not be able to establish a system in which all proceedings are docketed. Filings made through electronic means other than ECFS, for example, such as in the licensing context through ULS, may be accessible to the public without the need for assigning the proceeding a docket number. We seek comment on these proposals and issues.

4. Greater Use of Electronic Filing

12. In 1998, the Commission amended its rules to permit electronic filing via the Internet of all pleadings in informal notice and comment rulemaking proceedings (other than broadcast allotment proceedings), notice of inquiry proceedings, and petition for rulemaking proceedings (except broadcast allotment proceedings). (47 CFR 1.49(f); see Electronic Filing of Documents in Rulemaking Proceedings, Report and Order, 63 FR 24121, May 1, 1998; 13 FCC Rcd 11322 (1998).) The Commission also permits electronic filing through ECFS for certain adjudicatory proceedings on a case-by-case basis when so designated by the Commission or the staff. The Commission recently launched an enhanced and upgraded version of its ECFS that includes many new features and increased functionality. These new enhancements include, for example:

For submitting comments:

  • User-friendly forms used to upload and query
  • All forms are compliant with section 508 of the Rehabilitation Act and the system is certified for use with screen readers for those visually handicapped persons who require screen readers
  • Ability to submit a filing in multiple proceedings
  • Ability to attach multiple files to one submission
  • User-friendly Graphic User Interface using JAVA to permit easier navigation
  • Ability to review and modify filings before submitting them
  • Ability to send and process comments from international filers and U.S. Territories

For performing queries:

  • Check filing status by confirmation number
  • Sort the result set
  • Display results in a group of specified size
  • Display results in tabular (condensed) or expanded (detailed) format
  • Export search results to Excel or PDF
  • As noted above, system is compliant with section 508 of the Rehabilitation Act and certified for use with screen readers
  • Display search records with a link to the PDF version of the comment
  • RSS Feed for updates
  • View ECFS Daily Report (from a calendar) that lists the daily additions to ECFS

13. Given the more robust electronic filing capability provided by ECFS, we seek comment on the efficacy of utilizing electronic filing of pleadings through ECFS in a broader array of Commission proceedings. The Commission receives paper-only filings in certain non-rulemaking matters that currently do not utilize ECFS or some other electronic filing mechanism such as ULS. In addition, in certain types of proceedings, the Commission's rules provide for the electronic filing of applications, but not of responsive pleadings. When filings are made in paper format only and are not included in an electronic system (such as ECFS) that permits search and query functions, interested persons may find it difficult to follow and participate in our proceedings. Public access and transparency are not well served in those circumstances. In general, we believe that electronic filing through our enhanced ECFS or other electronic filing systems such as ULS better serves the public interest than a paper-only filing process. We thus seek to maximize electronic filing to the extent possible and minimize paper submissions at the Commission.

14. Accordingly, we propose an enhanced role for ECFS, and seek comment generally on issues raised by the increased use of electronic filing in Commission proceedings. In what types of non-rulemaking matters might it be appropriate to permit electronic filing of all pleadings through ECFS? Are there certain non-rulemaking proceedings that do not lend themselves to electronic filing of pleadings through ECFS? How should we amend § 1.49 of our rules (and any other rules the revision of which may be necessary) to augment the number of proceedings in which parties may file all pleadings through ECFS? Are there statutory implications for enhanced electronic filing that we should take into account, such as the Privacy Act? (5 U.S.C. 552a.) If we permit more filings under ECFS, what are the implications for parties wishing to submit materials under a request for confidentiality under § 0.459 of our rules?

15. As noted, the Commission has electronic filing mechanisms other than ECFS. These include, for example, a number of electronic filing systems for applications in the various broadcast and wireless services, including ULS (see para. 6, above). How should such systems be harmonized with ECFS, or should they continue to operate independently of ECFS? For example, should filers using those systems be excluded from also filing through the ECFS system to avoid confusion or unnecessary duplication? Should they be permitted to file in either, or both, in the same proceeding?

16. Finally, we seek comment on whether electronic filings through ECFS or our other electronic filing systems should be “machine readable.” Specifically, should text filings be in a searchable format (e.g., Microsoft Word “.doc” format or non-copy protected text-searchable “.pdf” format)? Should submissions containing non-text information, particularly spreadsheets of data, be submitted in the format in which they were created, such as Microsoft Excel, Microsoft Word, or Microsoft PowerPoint (“native format”)? We seek comment on these questions, and any other issues parties care to raise in connection with an enhanced role for filing pleadings through ECFS. (Just as with docketed proceedings, we note that any subsequent determination that Start Printed Page 14405parties should be permitted to file all pleadings in specific proceedings (or types of proceedings) through ECFS would not require the use of notice and comment procedures to the extent that those changes would involve matters of agency procedure and practice. See 5 U.S.C. 553(b)(A).)

5. Electronic Notification in Certain Proceedings

17. When required by statute or regulation, the Commission must serve copies of orders, pleadings, and other documents on parties to a proceeding. Typically in such circumstances, service is effectuated by mail. This process can be cumbersome and time consuming, for example when there are many parties to a particular proceeding, or when many documents in a particular docket must be served on the parties over the life of the proceeding. We seek to establish a more efficient approach. Accordingly, we propose to amend § 1.47 of the Commission's rules to allow the agency to serve parties to a proceeding in electronic form (e.g., e-mail or an Internet-based notification system such as an RSS feed) following any change in the docket, to the extent the Commission is required to serve such parties. In a proceeding involving a large number of parties, we propose to satisfy the Commission's service obligation by issuing a public notice that identifies the documents required to be served and that explains how parties can obtain copies of the documents. If we adopt such an approach, what number of parties ordinarily should trigger this procedure? Are there other factors, in addition to the number of parties, that should be taken into account when deciding whether to use this procedure in a particular matter? We seek comment on these proposals and questions.

6. Management of Dockets

18. When no further action in a docketed proceeding is required or contemplated, that proceeding should be terminated. Termination closes the docket to any new filings. A terminated docket remains part of the Commission's official records, however, and its contents (pleadings, orders, etc.) continue to be accessible to the public.

19. The Commission currently has more than three thousand open dockets. Many of these dockets have seen little or no activity in years. In these circumstances, it is reasonable to assume that some open dockets may be candidates for termination. To address the current situation and to prevent its recurrence in the future, we propose to amend § 0.141 of our organizational rules to delegate authority to the Chief, Consumer and Governmental Affairs Bureau (CGB), through its component Reference Information Center, to review all open dockets periodically. When the CGB Chief identifies an open docket that appears to be a candidate for termination, the CGB Chief should consult with the relevant bureau or office with responsibility for that docket and, if the relevant bureau or office concurs, the staff should take action to close that docket. As noted above, candidates for termination might include, for example, dockets in which no further action is required or contemplated. In addition, is there some minimum period of dormancy (i.e., when no pleadings have been filed) that might indicate a particular docket is a candidate for termination? What other criteria for termination might be appropriate? What procedures should we follow before terminating dockets? Should we first issue a public notice identifying particular dockets as candidates for termination before actually closing those dockets? We seek comment on these proposals and questions.

20. Another docket management issue involves the handling of dockets that are so large that they have become unwieldy. In such circumstances, often a bureau or office will open a new docket to remove one or more issues from a large docket, in an effort to avoid further expansion of the oversize docket. Oftentimes in practice, however, filings in the new docket will continue to include the old docket in the caption, essentially defeating the docket management function of having created the new docket. In an effort to rectify this situation, we propose to amend § 1.49 of our rules to specify that a filing should only be captioned with the docket number(s) particular to the issue(s) addressed in the filing. If the filing references superfluous or incorrect dockets, the Commission, through the Reference Information Center, would have the discretion to omit the filing from those dockets, and place it (only) in the correct docket(s). We seek comment on this proposal, including whether the benefits of erring on the side of over inclusiveness in dockets outweigh the administrative efficiencies and more narrowly tailored docket searchability that this proposal seeks to foster. We also solicit any other related suggestions to help the Commission manage its dockets and make them more user-friendly to, and searchable by, consumers and other users.

Miscellaneous Part 1 Rules

21. We also propose to amend certain other part 1 procedural rules to clarify and improve our practices. We propose these actions because our experience indicates that the current language of the rules has resulted in inconsistencies or uncertainties in the treatment of the matters in question.

7. Section 1.427—Effective Date of Rules

22. Although Commission rulemaking orders typically specify the effective date of adopted rules, the omission of such a statement can create confusion. Section 1.427(a) of the Commission's rules, captioned “Effective date of rules,” currently states: “Any rule issued by the Commission will be made effective not less than 30 days from the time it is published in the Federal Register except as otherwise specified in paragraphs (b) and (c) of this section.”

That rule contemplates that, in cases when the exceptions in subsections (b) and (c) do not apply, the order adopting the rule will contain a statement specifying that the rule becomes effective not less than 30 days after publication in the Federal Register. The rule does not provide any guidance, however, in the case when the contemplated statement of effective date is omitted. Although it is desirable to include a specific statement of effective date in all cases, we find that it also is prudent to prescribe a default rule in the event an order omits such a statement. A default rule should help avoid confusion and undue disruption concerning the effective date of the rule. We therefore propose amending § 1.427(a) of the rules to provide that in the event a Commission order adopting a rule does not specify an effective date and does not affirmatively defer the setting of an effective date (as in circumstances when the rule is awaiting Paperwork Reduction Act approval), the rule will become effective 30 days after publication in the Federal Register unless a later effective date is required by statute. We seek comment on this proposal.

8. Section 1.4—Computation of Time

23. Deadlines for Commission Action Established by Rule. Uncertainty can arise when the Commission's rules provide that required Commission action becomes due on a day when the agency is not open for business. A provision of the Commission's computation of time rule, § 1.4(j) (47 CFR 1.4(j)), currently addresses that situation when the due date for a party's filing falls on such a date, stating: “Unless otherwise provided (e.g. Sec. Start Printed Page 1440676.1502(e) of this chapter) if, after making all the computations provided for in this section, the filing date falls on a holiday, the document shall be filed on the next business day. See paragraph (e)(1) of this section.”

Section 1.4(j) does not address, however, the parallel situation in which specified Commission action, rather than a party's filing, is by regulation due on a day when the agency is not open for business. In those circumstances, we tentatively conclude that the reasonable expectation is that, when the due date for Commission action would otherwise fall on a holiday, as defined by § 1.4(e)(1) of the rules, the due date would be extended to the next business day. We seek comment on this proposal.

24. Deadlines for Commission Action Established by Statute. Section 1.4 by its terms “applies to computation of time for seeking both reconsideration and judicial review of Commission decisions.” The rule permits parties to make such filings on the next business day when the filing deadline otherwise would fall on a holiday. Each of those deadlines is established by statute rather than by Commission rule. (Petitions for reconsideration must be filed within 30 days from the date public notice is given of the Commission order. 47 U.S.C. 405(a). A Notice of Appeal of certain Commission licensing decisions must be filed within 30 days from the date public notice is given of the Commission's order. 47 U.S.C. 402(b), (c). A Petition for Review of most Commission decisions must be filed within 60 days from the date public notice is given of the Commission's order. 47 U.S.C. 402(a); 28 U.S.C. 2344.) Through § 1.4(a), we thus have announced in advance our construction of certain statutory filing deadlines applicable to parties to make clear that parties may invoke the “next business day” procedure when the filing date would otherwise fall on a holiday.

25. We seek comment on whether we should follow the same approach to statutory deadlines applicable to the Commission. The Communications Act, in particular, establishes various deadlines for Commission action. May we, and if so should we, construe such deadlines to incorporate the “next business day” procedure, as we have for certain statutory deadlines applicable to parties? Specifically, if a statutory deadline for Commission action falls on a holiday (as defined in § 1.4(e)(1)), should we by rule announce our intention to construe the statute to require Commission action on the next business day? If so, what changes should we make to § 1.4 to effectuate this approach?

III. Procedural Matters

26. Ex Parte Presentations. The rulemaking this Notice initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one- or two-sentence description of the views and arguments presented generally is required. Other requirements pertaining to oral and written presentations are set forth in § 1.1206(b) of the Commission's rules.

27. Accessible Formats: To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

28. Regulatory Flexibility Act. Our action does not require notice and comment, and therefore falls outside of the Regulatory Flexibility Act of 1980, as amended. We nonetheless note that we anticipate that the rules we propose today will not have a significant economic impact on a substantial number of small entities. As described above, in proposing to revise certain of our part 1 Rules of Practice and Procedure and our part 0 Rules of Commission Organization, we mainly propose to change our own internal procedures and organization and do not impose substantive new responsibilities on regulated entities. There is no reason to believe that operation of the proposed rules would impose significant costs on parties to Commission proceedings. We will send a copy of this Notice of Proposed Rulemaking to the Chief Counsel of Advocacy of the SBA.

29. Paperwork Reduction Act. This proceeding may result in new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

IV. Ordering Clauses

Accordingly, It is ordered, pursuant to sections 4(i), 4(j), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), and 303(r), that notice is hereby given of the proposed regulatory changes described above, and that comment is sought on these proposals.

Start List of Subjects

List of Subjects in 47 CFR Parts 0 and 1

End List of Subjects Start Signature

Federal Communications Commission.

Marlene H. Dortch,

Secretary.

End Signature

Proposed Rules

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 0 and 1 to read as follows:

Start Part

PART 0—COMMISSION ORGANIZATION

1. The authority citation for part 0 continues to read as follows:

Start Authority

Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, 225, unless otherwise noted.

End Authority

2. Section 0.141 is amended by revising paragraph (h) to read as follows:

Functions of the Bureau.
* * * * *

(h) Serves as the official FCC records custodian for designated records, including intake processing, organization and file maintenance, reference services, and retirement and retrieval of records; manages the Electronic Comment Filing System and certifies records for adjudicatory and court proceedings. Maintains manual and computerized files that provide for the public inspection of public record materials concerning Broadcast Ownership, AM/FM/TV, TV translators, FM Translators, Cable TV, Wireless, Auction, Common Carrier Tariff matters, International space station files, earth station files, DBS files, and other miscellaneous international files. Also maintains for public inspection Time Brokerage and Affiliation Agreements, court citation files, and legislative histories concerning telecommunications dockets. Provides the public and Commission staff prompt access to manual and computerized records and filing systems. Periodically Start Printed Page 14407reviews the status of open docketed proceedings and, in consultation with the relevant bureau or office with responsibility for a particular proceeding, closes any docket in which no further action is required or contemplated.

* * * * *

3. Section 0.445 is amended by revising paragraph (a) to read as follows:

Publication, availability and use of opinions, orders, policy statements, interpretations, administrative manuals, and staff instructions.

(a) Adjudicatory opinions and orders of the Commission, or its staff acting on delegated authority, are mailed or delivered by electronic means to the parties, and as part of the record, are available for inspection in accordance with §§ 0.453 and 0.455.

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End Part Start Part

PART 1—PRACTICE AND PROCEDURE

4. The authority citation for part 1 is revised to read as follows:

Start Authority

Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, 303(r), and 309.

End Authority

5. Section 1.4 is amended by revising paragraphs (a) and (j) to read as follows:

Computation of time.

(a) Purpose. The purpose of this rule section is to detail the method for computing the amount of time within which persons or entities must act in response to deadlines established by the Commission. It also applies to computation of time for seeking both reconsideration and judicial review of Commission decisions. In addition, this rule section prescribes the method for computing the amount of time within which the Commission must act in response to deadlines established by a Commission rule or order.

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(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. If a rule or order of the Commission specifies that the Commission must act by a certain date and that date falls on a holiday, the Commission action must be taken by the next business day.

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6. Section 1.47 is amended by revising paragraph (a) to read as follows:

Service of documents and proof of service.

(a) Where the Commission or any person is required by statute or by the provisions of this chapter to serve any document upon any person, service shall (in the absence of specific provisions in this chapter to the contrary) be made in accordance with the provisions of this section. Documents that are required to be served by the Commission may be served in electronic form. In proceedings involving a large number of parties, the Commission may satisfy its service obligation by issuing a public notice that identifies the documents required to be served and that explains how parties can obtain copies of the documents.

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7. Section 1.49 is amended by adding a new paragraph (g) to read as follows:

Specifications as to pleadings and documents.
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(g) The caption of a pleading or other document filed in a docketed proceeding should reference only the docket number(s) particular to the issue(s) addressed in the document. When the document references superfluous or incorrect dockets, the Commission may omit the document from such dockets and place it (only) in the correct docket(s).

8. Section 1.106 is amended by revising the section heading, paragraphs (a)(1), (b)(2), (b)(3), (c), (d), (i), and (j), and by adding a new paragraph (p), to read as follows:

Petitions for reconsideration in non-rulemaking proceedings.

(a)(1) Except as provided in paragraphs (b)(3) and (p) of this section, petitions requesting reconsideration of a final Commission action in non-rulemaking proceedings will be acted on by the Commission. Petitions requesting reconsideration of other final actions taken pursuant to delegated authority will be acted on by the designated authority or referred by such authority to the Commission. A petition for reconsideration of an order designating a case for hearing will be entertained if, and insofar as, the petition relates to an adverse ruling with respect to petitioner's participation in the proceeding. Petitions for reconsideration of other interlocutory actions will not be entertained. (For provisions governing reconsideration of Commission action in notice and comment rule making proceedings, see § 1.429. This § 1.106 does not govern reconsideration of such actions.)

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(b) * * *

(2) Where the Commission has denied an application for review, a petition for reconsideration will be entertained only if one or more of the following circumstances are present:

(i) The petition relies on facts or arguments which relate to events which have occurred or circumstances which have changed since the last opportunity to present such matters to the Commission; or

(ii) The petition relies on facts or arguments unknown to petitioner until after his last opportunity to present them to the Commission, and he could not through the exercise of ordinary diligence have learned of the facts or arguments in question prior to such opportunity.

(3) A petition for reconsideration of an order denying an application for review which fails to rely on new facts or changed circumstances may be dismissed by the staff as repetitious.

(c) In the case of any order other than an order denying an application for review, a petition for reconsideration which relies on facts or arguments not previously presented to the Commission or to the designated authority may be granted only under the following circumstances:

(1) The facts or arguments fall within one or more of the categories set forth in § 1.106(b)(2); or

(2) The Commission or the designated authority determines that consideration of the facts or arguments relied on is required in the public interest.

(d)(1) A petition for reconsideration shall state with particularity the respects in which petitioner believes the action taken by the Commission or the designated authority should be changed. The petition shall state specifically the form of relief sought and, subject to this requirement, may contain alternative requests.

(2) A petition for reconsideration of a decision that sets forth formal findings of fact and conclusions of law shall also cite the findings and/or conclusions which petitioner believes to be erroneous, and shall state with particularity the respects in which he believes such findings and/or conclusions should be changed. The petition may request that additional findings of fact and/or conclusions of law be made.

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(i) Petitions for reconsideration, oppositions, and replies shall conform to the requirements of §§ 1.49, 1.51, and Start Printed Page 144081.52 and shall be submitted to the Secretary, Federal Communications Commission, Washington, DC, 20554, by mail, by commercial courier, by hand, or by electronic submission through the Commission's Electronic Comment Filing System or other electronic filing system (such as ULS). Petitions submitted by electronic mail and petitions submitted directly to staff without submission to the Secretary shall not be considered to have been properly filed. Parties filing in electronic form need only submit one copy.

(j) The Commission or designated authority may grant the petition for reconsideration in whole or in part or may deny or dismiss the petition. Its order will contain a concise statement of the reasons for the action taken. Where the petition for reconsideration relates to an instrument of authorization granted without hearing, the Commission or designated authority will take such action within 90 days after the petition is filed.

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(p) Petitions for reconsideration of a Commission action that plainly do not warrant consideration by the Commission may be dismissed or denied by the Chief(s) of the relevant bureau(s) or office(s). Examples include, but are not limited to, petitions that: (1) Fail to identify any material error, omission, or reason warranting reconsideration;

(2) rely on facts or arguments which have not previously been presented to the Commission and which do not meet the requirements of paragraphs (b)(2), (b)(3), or (c) of this section;

(3) Rely on arguments that have been fully considered and rejected within the same proceeding;

(4) Fail to state with particularity the respects in which petitioner believes the action taken should be changed as required by paragraph (d) of this section;

(5) Relate to matters outside the scope of the order for which reconsideration is sought;

(6) Omit information required by these rules to be included with a petition for reconsideration, such as the affidavit required by § 1.106(e) (relating to electrical interference);

(7) Fail to comply with the procedural requirements set forth in paragraphs (f) and (i);

(8) Relate to an order for which reconsideration has been previously denied on similar grounds, except for petitions which could be granted under § 1.106(c); or

(9) Are untimely.

9. Section 1.108 is revised to read as follows:

Reconsideration on Commission's own motion.

The Commission may, on its own motion, reconsider any action made or taken by it within 30 days from the date of public notice of such action, as that date is defined in § 1.4(b) of these rules. When acting on its own motion under this section, the Commission may take any action it could take in acting on a petition for reconsideration, as set forth in § 1.106(k) of this chapter.

10. Section 1.427 is amended by revising paragraph (a) to read as follows:

Effective date of rules.

(a) Any rule issued by the Commission will be made effective not less than 30 days from the time it is published in the Federal Register except as otherwise specified in paragraphs (b) and (c) of this section. If the report and order adopting the rule does not specify the date on which the rule becomes effective, the effective date shall be 30 days after the date on which the rule is published in the Federal Register, unless the report and order affirmatively defers the setting of an effective date or a later effective date is required by statute.

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11. Section 1.429 is amended by revising the section heading, paragraphs (b), (h), and (i), and by adding a new paragraph (l), to read as follows:

Petition for reconsideration of final orders in rulemaking proceedings.
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(b) A petition for reconsideration which relies on facts or arguments which have not previously been presented to the Commission will be granted only under the following circumstances:

(1) The facts or arguments relied on relate to events which have occurred or circumstances which have changed since the last opportunity to present such matters to the Commission;

(2) The facts or arguments relied on were unknown to petitioner until after his last opportunity to present them to the Commission, and he could not through the exercise of ordinary diligence have learned of the facts or arguments in question prior to such opportunity; or

(3) The Commission determines that consideration of the facts or arguments relied on is required in the public interest.

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(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, DC 20554, by mail, by commercial courier, by hand, or by electronic submission through the Commission's Electronic Comment Filing System. Petitions submitted by electronic mail and petitions submitted directly to staff without submission to the Secretary shall not be considered to have been properly filed. Parties filing in electronic form need only submit one copy.

(i) The Commission may grant the petition for reconsideration in whole or in part or may deny or dismiss the petition. Its order will contain a concise statement of the reasons for the action taken. Any order addressing a petition for reconsideration which modifies rules adopted by the original order is, to the extent of such modification, subject to reconsideration in the same manner as the original order. Except in such circumstance, a second petition for reconsideration may be dismissed by the staff as repetitious. In no event shall a ruling which denies a petition for reconsideration be considered a modification of the original order.

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(l) Petitions for reconsideration of a Commission action that plainly do not warrant consideration by the Commission may be dismissed or denied by the Chief(s) of the relevant bureau(s) or office(s). Examples include, but are not limited to, petitions that:

(1) Fail to identify any material error, omission, or reason warranting reconsideration;

(2) Rely on facts or arguments which have not previously been presented to the Commission and which do not meet the requirements of paragraphs (b)(1) through (b)(3) of this section;

(3) Rely on arguments that have been fully considered and rejected within the same proceeding;

(4) Fail to state with particularity the respects in which petitioner believes the action taken should be changed as required by paragraph (c) of this section;

(5) Relate to matters outside the scope of the order for which reconsideration is sought;

(6) Omit information required by these rules to be included with a petition for reconsideration;

(7) Fail to comply with the procedural requirements set forth in paragraphs (d), (e), and (h) of this section;

(8) Relate to an order for which reconsideration has been previously Start Printed Page 14409denied on similar grounds, except for petitions which could be granted under § 1.429(b); or

(9) Are untimely.

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End Part End Supplemental Information

[FR Doc. 2010-6502 Filed 3-24-10; 8:45 am]

BILLING CODE 6712-01-P