[Federal Register Volume 61, Number 57 (Friday, March 22, 1996)]
[Rules and Regulations]
[Pages 11748-11749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6658]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[FCC 96-88]
Computation of Time
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Commission makes three minor amendments to the
Commission's computation of time rule. First, it adds an illustrative
example to the rules to make more explicit that the three extra days
added for service by mail where a response period is 10 days or less
are calculated from the end of the filing period regardless of whether
the last day of the filing period is a business day or a holiday.
Second, it provides that where any party is served by mail, and the
response period is 10 days or less, the filing period for all parties
(not just the ones served by mail) shall be extended the additional
three days. Third, it provides that service by facsimile machine shall
be treated as hand delivery, not service by mail. The intended effect
of this action is to make the rule clearer and more fair.
EFFECTIVE DATE: March 22, 1996.
FOR FURTHER INFORMATION CONTACT: David S. Senzel, Office of General
Counsel (202) 418-1760.
SUPPLEMENTARY INFORMATION: Adopted: March 5, 1996; Released March 15,
1996.
1. In this order we make three minor amendments to the Commission's
computation of time rule, 47 CFR 1.4. First, we add an illustrative
example to the rules to make more explicit that the three extra days
added for service by mail where a response period is 10 days or less
are calculated from the end of the filing period regardless of whether
the last day of the filing period is a business day or a holiday.
Second, we provide that where any party is served by mail, and the
response period is 10 days or less, the filing period for all parties
(not just the ones served by mail) shall be extended the additional
three days. Third, we provide that service by facsimile machine shall
be treated as hand delivery, not service by mail.
2. Section 1.4(h) addresses the filing period for responding to
pleadings that have been served on a party by mail. The rule states:
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 * * * and the filing period \1\ for a response is 10 days or
less, an additional 3 days (excluding holidays) will be allowed for
filing a response. * * *
\1\ Section 1.4(e)(3) provides: 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.
3. Section 1.4(j) governs the filing date for pleadings that would
otherwise be due on a holiday (when the Commission is closed for
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business). It provides that:
If, after making all the computations provided for in this
section, the filing date \2\ falls on a holiday, the document shall
be filed on the next business day. * * *
\2\ Section 1.4(e)(4) provides: 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.
4. Because Section 1.4(h) indicates that the three extra days for a
response to a pleading served by mail where the response period is 10
days or less is based on the ``filing period,'' not the ``filing
date,'' and because Section 1.4(j) says that the ``filing date'' is not
calculated until after all other computations are made, the additional
three days for service by mail are added without regard to whether the
last day of the filing period is a holiday and would therefore not be
the filing date if service were by hand. Thus, the first day to be
counted for the extra three days is the first business day after the
end of the filing period whether the filing period ends on a business
day or a holiday. How the rule applies is demonstrated in Summit
Communications, Inc., 9 FCC Rcd 4833, n.1 (Cable Serv. Bur. 1994). In
that case, a party filed a petition for reconsideration of a
franchising authority's certification (47 CFR 76.911) on Thursday,
October 28, 1993. The filing period for oppositions was 10 days (47 CFR
1.106(g)), so the filing period ended on Sunday, November 7. Service
was made by mail, an additional three days were added following the end
of the filing period on Sunday, November 7, and the opposition was due
Wednesday, November 10. The fact that the ``filing date'' would have
been moved forward from Sunday to Monday if there had not been mail
service was irrelevant, since under the rules the filing date is not
determined until after all other computations. Because a more recent
staff decision interpreted the rule differently and incorrectly added
the extra three days from the date the filing date would have been if
service was by hand rather than from the end of the filing period, see
Falcon Cablevision, 10 FCC Rcd 10409 n.3 (Cable Serv. Bur. 1995), we
are amending the rule to be more explicit by adding an illustrative
example setting out the correct interpretation of the rule.
5. We also amend Section 1.4(h) to provide that when one party is
served by mail and the response period is 10 days or less, all parties
should get the additional three days. This approach is most equitable
because it avoids the possibility that some parties in multi-party
litigation may be required to file their pleadings before others,
giving others an opportunity to ``preview'' their arguments before
filing their own pleading. We will therefore amend Section 1.4(h) to
specify that if one party is served by mail and the response period is
10 days or less, all parties will be given the additional three days.
[[Page 11749]]
6. Finally, we amend Section 1.4(h) to treat service by facsimile
machine the same as hand service. See 47 CFR 1.773(a)(4) (treating
delivery by facsimile machine like hand service in the tariff context).
See also SEC v. Stratton Oakmont, Inc., 1995 WL 46559 (D.D.C. 1995).
Because service by facsimile, like hand delivery, is essentially
instantaneous, we believe that this treatment is warranted generally.
7. Because the rule amendments involve rules of agency
organization, procedure, or practice, the notice and comment and
effective date provisions of the Administrative Procedure Act are
inapplicable. 5 U.S.C. 553(b)(A), (d).
8. Accordingly, it is ordered, That pursuant to Sections 4(i),
4(j), and 303(r)of the Communications Act, 47 U.S.C. 154(i), 154(j),
and 303(r), 47 CFR part 1 is amended as set forth below, effective
March 22, 1996.
9. The text of this order is available for inspection and copying
during normal business hours in the FCC Reference Center (Room 239),
1919 M Street NW., Washington D.C. The text may also be purchased from
the Commission's copy contractor, International Transcription Service,
Inc., Suite 140, 2100 M Street NW., Washington, D.C. 20037.
List of Subjects in 47 CFR Part 1
Administrative practice and procedure, Radio, Telecommunications,
Television.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Part 1 of Title 47 of the Code of Federal Regulations is amended as
follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for Part 1 continues to read as follows:
Authority: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47
U.S.C. 154, 303.
2. Section 1.4 is amended in paragraph (h), by revising the text
preceding Example 11, in paragraphs (i) and (j) by redesignating
Examples 12 and 13 as Examples 13 and 14, respectively, and by adding
new Example 12 in paragraph (h) to read as follows:
Sec. 1.4 Computation of time.
* * * * *
(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 Sec. 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
(Sec. 1.4(h)) shall not apply to documents filed pursuant to Sec. 1.89,
Sec. 1.120(d), Sec. 1.315(b) or Sec. 1.316. For purposes of this
paragraph service by facsimile shall be deemed equivalent to hand
delivery.
* * * * *
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.
* * * * *
[FR Doc. 96-6658 Filed 3-21-96; 8:45 am]
BILLING CODE 6712-01-P
