Each such reason shall be separately stated, and facts in support thereof shall be specified in detail and shall not include general non-specific conclusory arguments and allegations.

(3) The specific issues upon which protestant wishes a hearing to be held, which issues must relate directly to a matter specified with particularity as part of subparagraph (2) of this paragraph.

(c) Arguments and citations of authority may be set forth in a brief accompanying the protest but must be excluded from the protest itself.

(d) Oppositions to protests and briefs in support thereof shall contain all material, including that pertinent to the determination referred to in paragraph (i) of this section, deemed appropriate to the Commission's resolution of the protest. Such oppositions and supporting briefs must be filed within 10 days after the filing of such protest, and any replies to such oppositions must be filed within 5 days after the filing of the oppositions.

(e) Protests, oppositions, and replies shall be filed with the Commission in original and 14 copies and shall be accompanied by proof of service upon the grantee or the protestant, as the case may be, and/or their respective attorneys.

(f) The Commission may upon consideration of a protest direct either the protestant or grantee or both to submit further statements of fact under oath relating to the matters raised in the protest.

(g) Within 30 days from the date of the filing of the protest, the Commission will enter findings as to whether such protest meets the requirements set forth in paragraphs (b) (1) and (2) of this section. If the Commission finds that one of these requirements is not met, it will dismiss the protest. If the Commission finds that these requirements are met, it will designate the application in question for hearing. As to issues which the Commission believes present no grounds for setting aside the grant, even if the facts alleged were to be proven, the Commission may designate such issues for oral argument only. The other issues will be designated for evidentiary hearing except that the Commission may redraft the issues in accordance with the facts or substantive matters alleged in the protest and may also specify such additional issues as it deema desirable. In any evidentiary hearing subsequently

held upon issues specified by the Commission, upon its own initiative or adopted by it, both the burden of proceeding with the introduction of evidence and the burden of proof shall be upon the grantee. With respect to issues resulting from facts set forth in the protest and not adopted or specified by the Commission on its own motion, both the burden of proceeding with the introduction of evidence and the burden of proof shall be upon the protestant.

(h) The procedure in such protest hearing shall be governed by the provisions of Subpart B of this part, except as otherwise provided in this section.

(i) Pending hearing and decision the effective date of the Commission's action to which protest is made shall be postponed to the effective date of the Commission's decision after hearing unless the authorization involved is nec essary to the maintenance or conduc of an existing service or unless the Commission affirmatively finds that th public interest requires that the gran remain in effect, in which event th Commission shall authorize the appli cant to utilize the facilities or authori zation in question pending the Commis sion's decision after hearing.

(Sec. 7, 66 Stat. 715, as amended. See, particular, sec. 4 (a) and (d), 74 Stat. 88 892; 47 U.S.C. 309) [28 FR. 12415, Nov. 1963, as amended at 28 F.R. 14503, Dec. 3 1963]

Subpart B-Hearing Proceedings SOURCE: The provisions of this Subpart appear at 28 F.R. 12425, Nov. 22, 1963, exce as otherwise noted.

This subpart shall be applicable to t following cases which have been desi nated for hearing:

(a) Adjudication (as defined by t Administrative Procedure Act); and

(b) Rule making proceedings whi are required by law to be made on record after opportunity for a Comm sion hearing.

NOTE: For special provisions relating consideration of standard broadcast appli tions in the light of the 1950 NARBA and US./Mexican Agreement, see § 1.570. §1.202 Official reporter; transcript.

The Commission will designate fr time to time an official reporter for recording and transcribing of hear

proceedings. No transcript of the testimony taken, or argument had, at any hearing will be furnished by the Commission, but will be open to inspection under $ 0.417 of this chapter. Copies of such transcript, if desired, may be obtained from the official reporter upon payment of the charges therefor.

Sec. 7(d), 60 Stat. 241; 5 U.S.C. 1006(d)) $1.203 The record.

The transcript of testimony and exhabits, together with all papers and requests filed in the proceeding, shall constitute the exclusive record for decision. Where any decision rests on official notice of a material fact not appearing in the record, any party shall on timely request be afforded an opportunity to show the contrary.

Sec. 7(d), 60 Stat. 241; 5 U.S.C. 1006(d)) 1.204 Pleadings; definition.

As used in this subpart, the term Reading" means any written notice, tion, petition, request, opposition, re2 brief, proposed findings, exceptions,

morandum of law, or other paper filed with the Commission in a hearing proseeding. It does not include exhibits documents offered in evidence. See 1:356.

SPR 8219, June 30, 1964]

1.205 Continuances and extensions. Continuances of any proceeding or earing and extensions of time for makany filing or performing any act reand or allowed to be done within a fed time may be granted by the mission or the presiding officer upon on for good cause shown, unless the Se for performance or filing is limited statute.

§ 1.221

PRELIMINARY PROCEDURES

Notice of hearing; appearances. (a) Upon designation of an application for hearing, the Commission issues an order containing the following:

(1) A statement as to the reasons for the Commission's action.

(2) A statement as to the matters of fact and law involved, and the issues upon which the application will be heard.

(3) A statement as to the time, place, and nature of the hearing. (If the time and place are not specified, the order will indicate that the time and place will be specified at a later date.)

(4) A statement as to the legal authority and jurisdiction under which the hearing is to be held.

(b) The order designating an application for hearing is mailed to the applicant by the Secretary of the Commission and is published in the FEDERAL REGISTER. Reasonable notice of hearing will be given to the parties in all proceedings; and, whenever possible, the Commission will give at least 60 days notice of comparative hearings.

(c) In order to avail himself of the opportunity to be heard, the applicant, in person or by his attorney, shall, within 20 days of the mailing of the notice of designation for hearing by the Secretary, file with the Commission, in triplicate, a written appearance stating that he will appear on the date fixed for hearing and present evidence on the

issues specified in the order. Where an applicant fails to file such a written appearance within the time specified, or has not filed prior to the expiration of that time a petition to dismiss without prejudice, or a petition to accept, for good cause shown, such written appearance beyond expiration of said 20 days, the application will be dismissed with prejudice for failure to prosecute.

(d) The Commission will on its own motion name as parties to the hearing any person found to be a party in interest.

(e) In order to avail himself of the opportunity to be heard, any person named as a party pursuant to paragraph (d) of this section shall, within 20 days of the mailing of the notice of his designation as a party, file with the Commission, in person or by attorney, a written appearance in triplicate, stating that he will appear at the hearing. Any person so named who fails to file this written statement within the time specified, shall, unless good cause for such failure is shown, forfeit his hearing rights. (Sec. 5(a), 60 Stat. 239; 5 U.S.C. 1004(a). Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)

§ 1.223

Petitions to intervene.

(a) Where, in cases involving applications for construction permits and station licenses, or modifications or renewals thereof, the Commission has failed to notify and name as a party to the hearing any person who qualifies as a party in interest, such person may acquire the status of a party by filing, under oath and not more than 30 days after the publication in the FEDERAL REGISTER of the hearing issues or any substantial amendment thereto, a petition for intervention showing the basis of its interest. Where such person's interest is based upon a claim that a grant of the application would cause objectionable interference under applicable provisions of this chapter to such person as a licensee or permittee of an existing or authorized station, the petition to intervene must be accompanied by an affidavit of a qualified radio engineer which shall show, either by following the procedures prescribed 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, the extent of such interference. Where the person's status

as a party in interest is established, the petition to intervene will be granted.

(b) Any other person desiring to participate as a party in any hearing may file a petition for leave to intervene not later than 30 days after the publication in the FEDERAL REGISTER of the hearing issues or any substantial amendment thereto. The petition must set forth the interest of petitioner in the proceedings, must show how such petitioner's participation will assist the Commission in the determination of the issues in question, and must be accompanied by the affidavit of a person with knowledge as to the facts set forth in the petition. The presiding officer, in his discretion, may grant or deny such petition or may permit intervention by such persons limited to particular issues or to a particular stage of the proceeding.

(c) The granting of any petition to intervene shall not have the effect of changing or enlarging the issues specified in the Commission's notice of hearing unless the Commission shall on motion amend the same.

(d) Any person desiring to file a petition for leave to intervene later than 30 days after the publication in the FEDERAL REGISTER of the hearing issues or any substantial amendment thereto shall set forth the interest of petitioner in the proceedings, show how such petitioner's participation will assist the Commission in the determination of the issues in question, and set forth reasons why i was not possible to file a petition within the time prescribed by paragraphs (a) and (b) of this section. Such petition shall be accompanied by the affidavit o a person with knowledge of the facts se forth in the petition, and where peti tioner claims that a grant of the appli cation would cause objectionable inter ference under applicable provisions o this chapter, the petition for leave to in tervene must be accompanied by th affidavit of a qualified radio engine showing the extent of such alleged inter ference according to the methods pr scribed in paragraph (a) of this sectio If, in the opinion of the presiding office good cause is shown for the delay in fi ing, he may in his discretion grant su petition or may permit interventi limited to particular issues or to a pa ticular stage of the proceeding.

(Sec. 309, 48 Stat. 1085, as amended; 47 U.S 309) [28 F.R. 12425, Nov. 22, 1963, amended at 29 F.R. 7821, June 19, 1964]

$1.225 Participation by non-parties; consideration of communications.

(a) Any person who wishes to appear and give evidence on any matter, and who so advises the Secretary, will be notified by the Secretary if that matter is designated for hearing. In the case of requests bearing more than one signature, notice of hearing will be given to the person first signing unless the request indicates that such notice should be sent to someone other than such person.

(b) No person shall be precluded from giving any relevant, material, and competent testimony at a hearing because he lacks a sufficient interest to justify his intervention as a party in the matter.

(c) When a hearing is held, no communication will be considered in determining the merits of any matter unless It has been received into evidence. The admissibility of any communication shall be governed by the applicable rules of evidence, and no communication shall be admissible on the basis of a stipulaCon unless Commission counsel as well as counsel for all of the parties shall Join in such stipulation.

1.227 Consolidations.

(a) The Commission, upon motion or apon its own motion, will, where such action will best conduce to the proper dspatch of business and to the ends of Justice, consolidate for hearing:

(1) Any cases which involve the same applicant or involve substantially the mame issues, or

2) Any applications which present condicting claims.

(b) (1) In broadcast cases, no applicadon will be consolidated for hearing with previously filed application or applicaons unless such application, or such application as amended if amended so to require a new file number, is subCantially complete and tendered for

by whichever date is earlier: (i) The close of business on the day precedthe day the previously filed applicaon or one of the previously filed #plications is designated for hearing;

the close of business on the day Preceding the day designated by public uce published in the FEDERAL REGISTER the day any one of the previously filed cations is available and ready for processing.

Boy Subdivision (11) of this subparaapplies only to standard broadcast

applications for new stations or for major changes in the facilities of authorized stations. See also 1.571 (c) and (h) and § 1.591(a).

(2) In non-broadcast cases other than common carrier cases, any application that is mutually exclusive with another application or applications already designated for hearing will be consolidated for hearing with such other application or applications only if the later application in question has been filed within 5 days after public notice has been given in the FEDERAL REGISTER of the Commission's order which first designated for hearing the prior application or applications with which such application is in conflict.

(3) In common carrier cases, any application that is mutually exclusive with another previously filed application will be considered with such prior filed application only if the later filed application is substantially complete and tendered for filing prior to the close of business on the day preceding the day the earlier filed application is designated for hearing.

(4) Any mutually exclusive application filed after the date prescribed in subparagraphs (1), (2), or (3) of this paragraph will be dismissed without prejudice and will be eligible for refilling only after a final decision is rendered by the Commission with respect to the prior application or applications or after such application or applications are dismissed or removed from the hearing docket. § 1.229 Motions to enlarge, change, or delete issues.

(a) A motion to enlarge, change or delete the issues may be filed by any party to a hearing.

(b) Such motions must be filed with the Commission not later than 15 days after the issues in the hearing have first been published in the FEDERAL REGISTER. Any person desiring to file a motion to enlarge, change, or delete the issues after the expiration of such 15 days must set forth the reason why it was not possible to file the petition within the prescribed 15 days. Unless good cause is shown for delay in filing, the motion will not be granted.

(c) Such motions, oppositions thereto, and replies to oppositions shall contain specific allegations of fact sufficient to support the action requested. Such allegations of fact, except for those of

which official notice may be taken, shall be supported by affidavits of a person or persons having personal knowledge thereof.

PRESIDING OFFICER

AUTHORITY: 1.241, 1.243, and 1245 issued under sec. 7, 60 Stat. 241; 5 U.S.C. 1006.

1.241 Designation of presiding officer.

(a) Hearings will be conducted by the Commission, by one or more commissioners, or by an examiner designated pursuant to section 11 of the Administrative Procedure Act. If a presiding officer becomes unavailable to the Commission prior to the taking of testimony. another presiding officer will be designated.

(b) Unless the Commission determines that due and timely execution of its functions requires otherwise, presiding officers shall be designated, and notice thereof released to the public, at least 10 days prior to the date set for hearing. § 1.243 Authority of presiding officer.

From the time he is designated to preside until issuance of his decision or the transfer of the proceeding to the Commission or to another presiding officer, the presiding officer shall have such authority as is vested in him by law and by the provisions of this chapter, including authority to:

(a) Administer oaths and affirma. tions;

(b) Issue subpenas;

(c) Examine witnesses;

(d) Rule upon questions of evidence; (e) Take or cause depositions to be taken;

(f) Regulate the course of the hearing maintain decorum, and exclude from the hearing any person engaging in contemptuous conduct or otherwise disrupt. ing the proceedings;

(g) Require the filing of memoranda of law and the presentation of oral argument with respect to any question of law upon which he is required to rule during the course of the hearing;

(h) Hold conferences for the settlement or simplification of the issues by consent of the parties;

(i) Dispose of procedural requests or similar matters, as provided for in § 0.341 of this chapter;

(j) Take actions and make decisions or recommend decisions in conformity with the Administrative Procedure Act.

§1.245 Disqualification of presiding of. ficer.

(a) In the event that a presiding officer deems himself disqualified and desires to withdraw from the case, he shall notify the Commission of his withdrawal at least 7 days prior to the date set for hearing.

(b) Any party may request the presiding officer to withdraw on the grounds of personal bias or other disqualification.

(1) The person seeking disqualification shall file with the presiding officer an affidavit setting forth in detail the facts alleged to constitute grounds for disqualification. Such affidavit shall be filed not later than 5 days before the commencement of the hearing unless, for good cause shown, additional time is necessary.

(2) The presiding officer may file a response to the affidavit; and if he believes himself not disqualified, shall so rule and proceed with the hearing.

(3) The person seeking disqualification may except to a ruling of non-disqualification and, in that event, shall do so at the time the ruling is made. Unless exception is taken to the ruling at this time, the right to request withdrawal of the presiding officer shall be deemed waived.

(4) If exception to the ruling is taken, the presiding officer shall certify the question, together with the affidavit and any response filed in connection therewith, to the Commission. The hearing shall be suspended pending a ruling on the question by the Commission.

(5) The Commission may rule on the question without hearing, or it may require testimony or argument on the is sues raised.

(6) The affidavit, response, testimony or argument thereon, and the Commis sion's decision shall be part of the recor in the case.

PROCEEDINGS BEFORE THE PRESIDING
OFFICER