[Federal Register Volume 61, Number 52 (Friday, March 15, 1996)]
[Rules and Regulations]
[Pages 10688-10689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6208]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 0
[FCC 96-92]
Delegated Authority to Process Mutually Exclusive ITFS
Applications
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: On February 8, 1996, President Clinton signed into law the
Telecommunications Act of 1996 (Telecom Act).1 Section 403(c) of
the Telecom Act authorizes the Commission to delegate to the staff the
authority to process and grant from among mutually exclusive
applications for Instructional Television Fixed Service (ITFS)
facilities. By this Order, we exercise this option and delegate such
authority to the staff.
\1\ Public Law No. 104-104, 110 Stat. 56 (1996).
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EFFECTIVE DATE: March 15, 1996.
FOR FURTHER INFORMATION CONTACT: Paul R. Gordon, Mass Media Bureau,
Policy and Rules Division, Legal Branch, (202) 418-2130.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order,
FCC 96-92, adopted March 7, 1996 and released March 8, 1996. The full
text of this Commission decision is available for inspection and
copying during normal business hours in the FCC Dockets Branch (Room
239), 1919 M Street, N.W., Washington, D.C. The complete text of this
decision may also be purchased from the Commission's copy contractor,
International Transcription Services, (202) 857-3800, 2100 M Street,
N.W., Suite 140, Washington, DC 20037.
Synopsis of Order
1. Statutory Authority to Delegate. Mutually exclusive applications
for new ITFS facilities currently are resolved by the full Commission
in a paper hearing by means of a point accumulation system. After
calculating each applicant's score based on information submitted with
the application, the Commission determines which applicant is the most
qualified to serve the public interest. Because this is considered a
comparative hearing, the processing staff has been statutorily barred
from granting or denying any of the applications. Pursuant to the
Administrative Procedure Act (``APA''), the Commission itself must
preside in the taking of evidence in a comparative hearing, or it may
delegate this function to either (1) one or more members of the
Commission, or (2) one or more administrative law judges.2
However, the APA adds that these limitations do not supersede agency
delegation authority that is designated under statute.3
\2\ 5 U.S.C. 556(b)(2) and (3).
\3\ 47 U.S.C. 556(b) (``this subchapter does not supersede the
conduct of specified classes of proceedings, in whole or in part, by
or before boards or other employees specially provided for or
designated under statute'').
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2. Section 403(c) of the Telecom Act authorizes such a delegation
with regard to the processing of ITFS applications, expressly
superseding the APA's restrictions. It replaces the last sentence of
Section 5(c)(1) of the Communications Act of 1934 with the following:
Except for cases involving the authorization of service in the
instructional television fixed service, or as otherwise provided in
this Act, nothing in this paragraph shall authorize the Commission
to provide for the conduct, by any person or persons other than
persons referred to in paragraph (2) or (3) of section 556(b) of
title 5, United States Code [the APA], of any hearing to which such
section applies.4
\4\ To be codified at 47 U.S.C. 155(c)(1).
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3. Exercise of the Commission's Delegation Authority. We believe
that delegation to the staff of ITFS processing authority will speed
the processing of ITFS applications, complementing recent rule changes
designed to increase ITFS processing efficiency. Moreover, the
Commission has conducted a substantial number of hearings for ITFS
facilities over the past several years and has developed a large body
of case law addressing a variety of issues. Educational applicants,
their wireless cable lessees, and Commission staff have become familiar
with the many legal and technical issues involved in applying for ITFS
facilities. Thus, we believe that delegation will serve the public
interest by increasing processing efficiency and allowing more rapid
authorization and initiation of service to the public.
Administrative Matters. Because this action involves rules of
agency organization and procedure, the notice
[[Page 10689]]
and comment requirements of the APA, 5 U.S.C. 553(b)(A), are
inapplicable.
Ordering Clauses. Therefore, it is ordered That the authority to
conduct a hearing and to select from among mutually exclusive
applications in the Instructional Television Fixed Service is delegated
to the staff.
4. It is further ordered That, pursuant to authority contained in
sections 4(i) and 303 of the Communications Act of 1934, as amended,
Secs. 0.151 and 0.283 of the Commission's Rules, 47 CFR 0.151, 0.283,
are amended as set forth below.
5. Because this involves an internal procedural matter not
affecting the substantive rights of any entity, and in order to
expedite the processing of ITFS applications, it is further ordered
that for good cause shown pursuant to the provisions of 5 U.S.C.
553(d)(3), this Order shall become effective immediately upon
publication in the Federal Register.
6. It is further ordered That this proceeding is terminated.
7. Authority for the adoption of the foregoing revision is
contained in sections 5(b), 5(c)(1), and 303(r) of the Communications
Act of 1934, as amended, 47 U.S.C. 155(b), 155(c)(1), and 303(r).
List of Subjects in 47 CFR Part 0
Organization and functions (Government agencies).
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Part 0 of title 47 of the Code of Federal Regulations is amended as
follows:
PART 0--COMMISSION ORGANIZATION
1. The authority citation for part 0 continues to read as follows:
Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C 155, 225,
unless otherwise noted.
2. Section 0.151 is revised to read as follows:
Sec. 0.151 Functions of the Office.
The Office of Administrative Law Judges consists of a Chief
Administrative Law Judge, an Assistant Chief Administrative Law Judge,
and as many other Administrative Law Judges qualified and appointed
pursuant to the requirements of section 11 of the Administrative
Procedure Act as the Commission may find necessary. It is responsible
for hearing and conducting all adjudicatory cases designated for any
evidentiary adjudicatory hearing other than those designated to be
heard by the Commission en banc, those designated to be heard by one or
more members of the Commission, and those involving the authorization
of service in the Instructional Television Fixed Service. The Office of
Administrative Law Judges is also responsible for conducting such other
hearings as the Commission may assign.
3. Section 0.283 is amended by revising paragraph (a)(9)(i) to read
as follows:
Sec. 0.283 Authority delegated.
* * * * *
(a) * * *
(9) * * *
(i) Mutually exclusive applications not in the Instructional
Television Fixed Service, including renewal and construction permit
applications, involving non-routine hearing issues.
* * * * *
[FR Doc. 96-6208 Filed 3-14-96; 8:45 am]
BILLING CODE 6712-01-P
