action on its own motion, the Commission may in its discretion stay the effect of any such action until its review of the matters at issue has been completed. § 1.104 Preserving the right of review; deferred consideration of application for review.

(a) The provisions of this section apply to all final actions taken pursuant to delegated authority, including final decisions of the Review Board following review of an initial decision and final actions taken by members of the Commission's staff on non-hearing matters. They do not apply to interlocutory actions of the Review Board or the Chief Hearing Examiner in hearing proceedings. (See §§ 1.106 (a) and 1.115(e).)

(b) Any person desiring Commission consideration of a final action taken pursuant to delegated authority shall file either a petition for reconsideration or an application for review (but not both) within 30 days from the date of release of the document containing the full text of such action, or in case such document is not released, after release of a public notice announcing the action in question. The petition for reconsideration will in all cases be acted pon by the designated authority. The application for review will in all cases be acted upon by the Commission.

c) If in any matter one party files a petition for reconsideration and a second party files an application for reView, the Commission will withhold action on the application for review until hal action has been taken on the petition for reconsideration.

(d) Any person who has filed a petition for reconsideration may file an application for review within 30 days after final action on his petition. If a petition for reconsideration has been filed, any person who has filed an application for review may, within 30 days after fal action on the petition for reconceration, amend or withdraw his applicalon for review or substitute amended application therefor. 41.106 Petitions for reconsideration of final action taken by the Commission en bane or by a designated authority pursuant to a delegation.

an

a) Petitions requesting reconsideran of a final action taken pursuant to ated authority will be acted on by the designated authority. Petitions reCurating reconsideration of a final Com

mission action will be acted on by the Commission. Petitions requesting reconsideration of an interlocutory ruling made by the Commission, the Review Board or the Chief Hearing Examiner will not be entertained. See § 1.115(e) (2). For purposes of reconsideration, an order disposing of a petition to deny is not an interlocutory ruling. For provisions pertaining to reconsideration of an order designating a case for hearing, see § 1.111.

If

(b) Except where the Commission has denied an application for review without specifying reasons therefor, any party to the proceeding, or any other person aggrieved or whose interests are adversely affected by any action taken by the Commission or by the designated authority, may file a petition requesting reconsideration of the action taken. the petition is filed by a person who is not a party to the proceeding, it shall state with particularity the manner in which he is aggrieved or his interests are adversely affected by the action taken, and shall show good reason why it was not possible for him to participate in the earlier stages of the proceeding.

(c) A petition for reconsideration which relies on facts which have not previously been presented to the Commission or to the designated authority, as the case may be, will be granted only under the following circumstances:

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

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

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

(d) (1) The petition for reconsideration shall, where appropriate, cite the findings of fact and/or conclusions of law which petitioner believes to be erroneous, and shall state with particularity the respects in which he believes such findings and conclusions should be changed. The petition may request that additional findings of fact and conclusions of law be made.

(2) The petition shall state with particularity the respects in which peti

tioner believes the action taken by the designated authority should be changed.

(3) The petition shall state specifically the form of relief sought and, subject to this requirement, may contain alternative requests.

(e) Where a petition for reconsideration is based upon a claim of electrical interference, under appropriate rules in this chapter, to an existing station or a station for which a construction permit is outstanding, such petition, in addition to meeting the other requirements of this section, must be accompanied by an affidavit of a qualified radio engineer. Such affidavit shall show, either by following the procedures set forth in this chapter for determining interference in the absence of measurements, or by actual measurements made in accordance with the methods prescribed in this chapter, that electrical interference will be caused to the station within its normally protected contour.

(f) The petition for reconsideration and any supplement thereto shall be filed within 30 days from the date of release of the document containing the full text of the action taken or, in case such document is not released, after release of a public notice announcing the action in question, and shall be served upon parties to the proceeding. The petition for reconsideration shall not exceed 25 double spaced typewritten pages. No supplement or addition to a petition for reconsideration which has not been acted upon by the Commission or by the designated authority, filed after expiration of the 30 day period, will be considered except upon leave granted upon a separate pleading for leave to file, which shall state the grounds therefor.

(g) Oppositions to a petition for reconsideration shall be filed within 10 days after the petition is filed, and shall be served upon petitioner and parties to the proceeding. Oppositions shall not exceed 25 double spaced typewritten pages.

(h) Petitioner may reply to oppositions within seven days after the last day for filing oppositions, and any such reply shall be served upon parties to the proceeding. Replies shall not exceed 10 double spaced typewritten pages, and shall be limited to matters raised in the opposition.

(1) Petitions for reconsideration, oppositions, and replies shall conform to

1.52 and shall be submitted to the Secretary, Federal Communications Commission, Washington, D.C., 20554.

(j) The Commission or designated authority may grant the petition for reconsideration in whole or in part or may deny 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.

(k) (1) If the Commission or designated authority grants the petition for reconsideration in whole or in part, it may, in its order, rule on the merits of the petition.

(2) In the alternative, the Commission or designated authority may, in its order granting the petition, order such further procedure as may be useful to it in reaching a decision on the merits of the petition. In that event, its ruling on the merits will be deferred pending completion of such procedure.

(3) In ruling on the merits of the petition, the Commission or designated authority may affirm, reverse, modify or set aside its original action, or may remand the proceeding for such further action, including rehearing, as may be appropriate. Any order disposing of a petition for reconsideration which reverses, changes, or modifies the original order is subject to the same provisions with respect to reconsideration as the original order.

(1) No evidence other than newly dis covered evidence, evidence which ha become available only since the origina taking of evidence, or evidence which th Commission or the designated authorit believes should have been taken in th original proceeding shall be taken on an rehearing ordered pursuant to the pro visions of this section.

(m) The filing of a petition for recon sideration is not a condition preceder to judicial review of any action taken t the Commission or by the designated a thority, except where the person seekir such review was not a party to the pr ceeding resulting in the action, or reli on questions of fact or law upon whi the Commission or designated authori has been afforded no opportunity to pa (See § 1.115(e).) Persons in those cat gories who meet the requirements of th

view by filing a petition for reconsider

ation.

(n) Without special order of the Commission, the filing of a petition for reconsideration shall not excuse any person from complying with or obeying any decision, order, or requirement of the Commission, or operate in any manner to stay or postpone the enforcement thereof. However, upon good cause shown, the Commission will stay the effectiveness of its order or requirement pending a decision on the petition for reconsideration. (This paragraph applies only to actions of the Commission en banc. For provisions applicable to actions under delegated authority, see §1.102.)

NOTE: Petitions for reconsideration of Commission action in rule making proceedings conducted under section 4 of the Administrative Procedure Act need not be served on participants in the proceeding. When uch petitions are filed in proper form, pubAc notice of their filing will be given. Oppositions to such petitions may be filed within 10 days after such public notice is given and need be served only on the person who filled the petition. Replies to such oppositions need be served only on the person who filed the opposition.

(Sec. 405, 48 Stat. 1095, as amended; 47 USC 405) [28 F.R. 12415, Nov. 22, 1963, as amended at 30 F.R. 4479, Apr. 7, 1965; 30 FR. 8837, July 14, 1965]

The Commission may, on its own motion, set aside any action made or taken by it within 30 days after release of the document containing the full text of such action or, in case such a document is not released, after release of a "Public Notice" announcing the action in question.

11.110 Partial grants; rejection and designation for hearing.

Where the Commission without a heargrants any application in part, or with any privileges, terms, or conditions sther than those requested, or subject to 15 interference that may result to a sta

if designated application or applicaDocs are subsequently granted, the acLot of the Commission shall be considd as a grant of such application unless the applicant shall, within 30 days from 2 date on which such grant is made or from its effective date if a later date is

ed, file with the Commission a en request rejecting the grant as

5:494-66 -6

made. Upon receipt of such request, the Commission will vacate its original action upon the application and set the application for hearing in the same manner as other applications are set for hearing. § 1.111 Petitions for reconsideration of an order designating a case for hearing.

(a) A petition for reconsideration of an order designating a case for hearing will be entertained only in the following circumstances:

(1) Where the petition relates to an adverse ruling with respect to the petitioner's participation in the proceeding;

(2) Where the petition is filed by an applicant and asserts that his application should have been granted without hearing.

(b) A petition for reconsideration under paragraph (a) of this section will be acted upon by the Commission. All questions raised in the petition and relating to the designation order will be considered.

(Sec. 405, 48 Stat. 1095, as amended; 47 U.S.C. 405) [30 F.R. 8838, July 14, 1965]

§ 1.113

Action modified or set aside by person, panel, or board.

(a) Within 30 days after public notice has been given of any action taken pursuant to delegated authority, the person, panel, or board taking the action may modify or set it aside on its own motion.

(b) Withir 60 days after notice of any sanction imposed under delegated authority has been served on the person affected, the person, panel, or board which imposed the sanction may modify or set it aside on its own motion.

(c) Petitions for reconsideration and applications for review shall be directed to the actions as thus modified, and the time for filing such pleadings shall be computed from the date upon which public notice of the modified action is given or notice of the modified sanction is served on the person affected.

§ 1.115 Application for review of action taken pursuant to delegated authority.

(a) Any person aggrieved by any action taken pursuant to delegated authority may file an application requesting review of that action by the Commission. Any person filing an application for review who has not previously participated in the proceeding shall include with his application a statement de

scribing with particularity the manner in which he is aggrieved by the action taken and showing good reason why it was not possible for him to participate in the earlier stages of the proceeding. Any application for review which fails to make an adequate showing in this respect will be dismissed.

(b)(1) The application for review shall concisely and plainly state the questions presented for review with reference, where appropriate, to the findings of fact or conclusions of law.

(2) The application for review shall specify with particularity, from among the following, the factor(s) which warrant Commission consideration of the questions presented:

(i) The action taken pursuant to delegated authority is in conflict with statute, regulation, case precedent, or established Commission policy.

(ii) The action involves a question of law or policy which has not previously been resolved by the Commission.

(iii) The action involves application of a precedent or policy which should be overturned or revised.

(iv) An erroneous finding as to an important or material question of fact.

(v) Prejudicial procedural error. (3) The application for review shall state with particularity the respects in which the action taken by the designated authority should be changed.

(4) The application for review shall state the form of relief sought and, subject to this requirement, may contain alternative requests.

NOTE: If the Commission grants an application for review of a final decision of the Review Board, it will, as the usual practice, permit the parties to file briefs and present oral argument. The Commission will rarely dispose of the merits of a case upon the basis of the application for review and related pleadings. Thus, except where the matter is interlocutory in nature, the application for review should be prepared with the understanding that its purpose is not to obtain a Commission decision on the merits of the issues but rather to convince the Commission to review those issues.

(c) No application for review will be granted if it relies on questions of fact or law upon which the designated authority has been afforded no opportunity to pass.

NOTE: Subject to the requirements of § 1.106, new questions of fact or law may be presented to the designated authority in a petition for reconsideration.

(d) Except as provided in paragraph (e) of this section, the application for review and any supplement thereto shall be filed within 30 days from the date of release of the document containing the full text of such action, or in case such a document is not released, after release of a public notice announcing the action in question. Oppositions to the application shall be filed within 15 days after the application is filed. Replies to oppositions shall be filed within 10 days after the opposition is filed and shall be limited to matters raised in the opposition.

(e) (1) Applications for review of interlocutory rulings made by the Review Board or the Chief Hearing Examiner shall be filed within five days after the order is released or the ruling is made. Oppositions to such applications shall be filed within five days after the application is filed. Replies to such oppositions shall be filed within five days after the opposition is filed and shall be limited to matters raised in the opposition.

(2) The failure to file an application for review of an interlocutory ruling, or the denial of such application by the Commission, shall not preclude any party entitled to file exceptions to the initial decision from requesting review of the ruling at the time when exceptions are filed. Such requests will be considered in the same manner as exceptions are considered.

NOTE: Unless the ruling complained of is fundamental and affects the conduct of the entire proceeding, requests for review should be deferred until the time when exceptions are filed.

(f) Applications for review and oppositions shall conform to the requirements of §§ 1.49, 1.51, and 1.52, and shal be submitted to the Secretary, Federa Communications Commission, Washing ton, D.C., 20554. The application for re view shall be served upon the parties t the proceeding. Oppositions to the ap plication for review shall be served on th person seeking review and parties to th proceeding. Applications for review an oppositions shall not exceed 25 doubl spaced typewritten pages and, in th case of interlocutory matters, shall no exceed 10 double spaced typewritte pages. Replies to oppositions shall no exceed 10 double spaced typewritte pages.

(g) The Commission may grant th application for review in whole ori part, or may deny the application, wit

out specifying reasons for the action taken. No petition requesting reconsideration of an order which denies an application for review without specifying reasons therefor will be entertained.

(h) If the Commission grants the application for review, it may order such further procedure, including briefs and oral argument, as it may deem useful, or may stay the effect of the action taken pursuant to delegated authority pending its further consideration of the matters at issue. (See § 1.102.)

(D) With or without any such additional procedure, the Commission may either affirm, reverse, modify, or set aside the action taken, or remand the proceeding to the designated authority for reconsideration in accordance with its instructions. If an evidentiary hearing has been held, the Commission may remand the proceeding to the person(s) who conducted the hearing for rehearing on such issues and in accordance with such instructions as may be appropriate. An order of the Commission which reverses or modifies the action taken pursuant to delegated authority, or remands the matter for further proceedings, is subject to the same provisons with respect to reconsideration as an original action of the Commission.

() No evidence other than newly discovered evidence, evidence which has beme available only since the original taking of evidence, or evidence which The Commission believes should have been taken in the original proceeding tal be taken on any rehearing ordered Pursuant to the provisions of this section.

The filing of an application for review shall be a condition precedent to Fudicial review of any action taken purant to delegated authority.

firm, reverse, modify, or set aside the action taken, or remand the proceeding to the designated authority for reconsideration in accordance with its instructions. If an evidentiary hearing has been held, the Commission may remand the proceeding to the person(s) who conducted the hearing for rehcaring on such issues and in accordance with such instructions as may be appropriate. An order of the Commission which reverses or modifies the action taken pursuant to delegated authority, or remands the matter for further proceedings, is subject to the same provisions with respect to reconsideration as an original action of the Commission.

§ 1.120 Protests of grants without hearing.

(a) The provisions of this section shall not be applicable to any application: (1) Filed on or after December 12, 1960; (2) filed before December 12, 1960, but substantially amended (as defined in the applicable provisions of this chapter) on or after that date; or (3) filed before December 12, 1960, and not thereafter substantially amended, but with respect to which the rules in this chapter provide an opportunity for petitions to deny to be filed under section 309 of the Communications Act, as amended. See §§ 1.580 and 1.962.

(b) Where any instrument of authorization for a radio station, other than a license pursuant to a construction permit, has been granted without a hearing, any party in interest may file a protest directed to such grant and request a hearing on the application granted. Such protest shall be signed by the protestant and subscribed to under oath. Such protest must be filed with the Commission within 30 days after release of the document containing the full text of such action, or in case such a document is not released, after release of a "Public Notice" announcing the action in question and must separately set forth:

(1) Such allegations of fact as will show the protestant to be a party in interest, i.e., a person aggrieved or whose interests are adversely affected by the Commission's authorization, protest of which is sought. Each such allegation of fact shall be separately stated.

(2) Facts indicating the reasons why the grant was improperly made or would otherwise not be in the public interest.