Designation for hearing.

1.384 Procedure when case is designated for hearing.

1.385 Petitions to intervene.

party to the proceedings shall file with the Commission proposed findings of fact and conclusions which shall be served upon all parties participating in the hearing in the manner provided in § 1.141. Failure to file proposed findings of fact and conclusions by any such party within the time so required, shall be deemed a waiver by such party of any right of further participation in the proceeding, including oral argument if any is held. [Paragraph (d) amended Mar. 7, 1946, 11 F.R. 2714]

REHEARINGS

§ 1.271 Petitions; contents.

CODIFICATION: The following note was added to § 1.271 by Order, Commission, Jan. 16, 1946, 11 F.R. 890:

NOTE: For specific rules regarding petitions for rehearing in connection with applications under Title III, see § 1.387.

SPECIAL PROVISIONS RELATING TO RADIO

ACTION ON APPLICATIONS

AUTHORITY: §§ 1.381 to 1.388, inclusive, issued under sec. 4 (1), 48 Stat. 1068, sec. 303 (r), 50 Stat. 191; 47 U.S.C. 154 (1), 303 (r).

SOURCE: §§ 1.381 to 1.388; inclusive, contained in Regulations, Commission, Jan. 16, 1946, 11 F.R. 890, except as noted following provision affected.

CODIFICATION: Former §§ 1.381 Partial grants and 1.382 Designation for hearing were revoked, Jan. 16, 1946, 11 F.R. 890.

§ 1.381 Grants without a hearing. Where an application for radio facilities is proper upon its face, and where it appears from an examination of the application and supporting data that: (1) The applicant is legally, technically and financially qualified; (2) a grant of the application would not involve modification, revocation, or non-renewal of any existing license or outstanding construction permit; (3) a grant of the application would not cause electrical interference to an existing station or station for which a construction permit is outstanding within its normally protected contour as prescribed by the applicable rules and regulations; (4) a grant of the application would not preclude the grant of any mutually exclusive applica

tion; and (5) a grant of the application would be in the public interest, the Commission will grant the application without a hearing.

§ 1.382 Partial grants. Where the Commission without a hearing grants any application in part, or with any privileges, terms, or conditions other than those requested, the action of the Commission shall be considered as a grant of such application unless the applicant shall, within 20 days from the date on which public announcement of such grant is made, or from its effective date if a later date is specified; file with the Commission a written request for a hearing with respect to the part, or with respect to the privileges, terms, or conditions, not granted. 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.

§ 1.383 Designation for hearing. Applications will be designated for hearing in the following cases:

(a) Where it does not appear from an examination of the application that the applicant is legally, technically or financially qualified; or

(b) Where a grant of the application would require the modification, revocation, or nonrenewal of license of an existing station or of any outstanding construction permit; or (c) Where a grant of the application would cause electrical interference to an existing station or station for which a construction permit is outstanding within its normally protected contour as prescribed by the applicable rules and regulations; or

(d) Where it does not appear from an examination of the application that a grant of the application will be in the public interest.

(e) Where a grant of the application would preclude the grant of an application or applications mutually exclusive with it. However, the Commission may, if public interest will be served thereby, make a conditional grant of one of the applications and designate all of the mutually exclusive applications for hearing. Such conditional grant will be made upon the express condition that such grant is subject to being withdrawn if at the hearing it is shown that public interest will be better served by a grant of one of the other applications. Such conditional grants will be issued only where it appears:

(1) That some or all of the applications were not filled in good faith but were filled for the purpose of delaying or hindering the grant of another application; or

(2) That public interest requires the prompt establishment of radio service in a particular community or area; or

(3) That a grant of one or more applications would be in the public interest and that a delay in making a grant to any applicant until after the conclusion of a hear

72333847-SUPP. IX-BK. 5- -63

ing on all applications might jeopardize the rights of the United States under the provisions of international agreement to the use of the frequency in question; or

(4) That a grant of one application would be in the public interest and that it appears from an examination of the remaining applications that they cannot be granted because they are in violation of provisions of the Communications Act, or of other statutes, or of the Commission's rules and regulations.

$ 1.384 Procedure when case is designated for hearing. (a) When an application has been designated for hearing, the Secretary of the Commission will mail a written notice to the applicant setting forth the action of the Commission designating the application for hearing, together with such statement of the Commission's reasons therefor as shall be appropriate to the nature of the application. In order to avail himself of the opportunity to be heard, the applicant, in person or by his attorney, shall, within 15 days of the mailing of the notice of designation for hearing by the Secretary, file with the Commission a written appearance stating that he will appear and present evidence on the issues specified in the statement of reasons furnished by the Commission on such date as may be fixed for the hearing. In cases involving applications for facilities other than AM broadcast, FM broadcast, international broadcast, or television, the applicant shall submit with his appearance an additional copy of his application and supporting documents.

(b) The Commission will on its own motion name as parties to the hearing:

(1) Any existing licensee or holder of an outstanding construction permit who, if the application were granted, would suffer electrical interference within his normally protected contour as prescribed by the Commission's rules and regulations.

(2) Any existing licensee or holder of an outstanding construction permit whose license or construction permit would have to be modified or revoked, or whose application for renewal of license would have to be denied, if the application in question were granted.

(3) Any person who, prior to the time the application in question was designated for hearing, had filed with the Commission a mutually exclusive application. Persons filing mutually exclusive applications after the application in question has been designated for hearing will be named as parties only if the Commission in its discretion deems such action advisable.

§ 1.385 Petitions to intervene. (a) Where the Commission has failed on its own motion to name as parties to a hearing any person specified in § 1.384 (b), such person will be permitted to participate in the proceeding by filing a petition to intervene showing that he comes within the provisions of § 1.384 (b). Where the petition to inter

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vene is based upon a claim that a grant of the application would cause electrical interference to an existing station or a station for which a construction permit is outstanding within its normally protected contour as prescribed by the applicable rules and regulations, the petition must be accompanied by an affidavit of a qualified radio engineer which shall show either by reference to the Commission's Standards of Good Engineering Practice or to actual measurements made in accordance with the methods prescribed by the Commission's Standards of Good Engineering Practice that electrical interference will be caused to the existing station or station for which a construction permit is outstanding within the normally protected contour of the station.

(b) Any other person desiring to participate in the hearing may file a petition to intervene. The petititon must set forth the interest of the petitioner in the proceedings and must show how such person's participation will assist the Commission in the determination of the issues in question. The Commission in its 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) Petitions to intervene under this section 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 petition to intervene 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 petition will not be granted.

§ 1.386 Motions to enlarge or change the issues. Motions to enlarge or change the issues may be filed by any party to a hearing. 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 or change 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.

§ 1.387 Petitions for reconsideration or for rehearing. (a) Where an application has been granted without a hearing, any person aggrieved or whose interests would be adversely affected thereby may file a petition for reconsideration of such action. Such petition must be filed with the Commission within 20 days after public notice is given of the Commission's action in granting the

application. Such petition will be granted if the petitioner shows that:

(1) Petitioner is an existing licensee or permittee and a grant of the application would require the modification, revocation, or non-renewal of his license or construction permit; or

(2) That petitioner is an existing licensee or permittee and a grant of the application would cause interference to his station within the normally protected contour as prescribed by applicable rules and regulations; or

(3) At the time the application was granted, petitioner had a mutually exclusive application pending before the Commission;

or

(4) A grant of the application is not in the public interest.

(b) Where an application has been granted or denied after hearing, petitions for rehearing may be filed within 20 days after public notice is given of the Commission's action in granting or denying the application. Petitions for rehearing by persons not parties to the Commission's hearing will not be granted unless good cause is shown as to why it was not possible for such person to participate earlier in the Commission's proceeding.

(c) Where a petition for reconsideration or for rehearing is based upon a claim of electrical interference within the normally protected contour of an existing station or a station for which a construction permit is outstanding, such petition must be accompanied by an affidavit of a qualified radio engineer which shall show either by reference to the Commission's Standards of Good Engineering Practice or to actual measurements made in accordance with the methods prescribed by the Commission's Standards of Good Engineering Practice that electrical interference will be caused to the station within its normally protected contour. If the claim of interference is not based upon actual measurements made in accordance with the Standards of Good Engineering Practice, it may be controverted by affdavit containing results of actual measurements made in accordance with the Standards of Good Engineering Practice.

(d) Each petition for reconsideration or rehearing shall be subscribed as provided in § 1.122 and served upon all parties participating in the hearing in the manner provided in § 1.141. In the case of a petition for reconsideration of a decision, order, or requirement made without a hearing, the party filing the petition shall serve the same in the manner provided in § 1.141 upon the party or parties to whom such decision, order, or requirement was directed.

(e) Any opposition to a petition for reconsideration or rehearing may be filed within 10 days after the filing of such petition.

(f) Petitions for reconsideration or rehearing filed under this section may request: (1) Reconsideration, either in cases decided after hearing or in cases of applications granted without hearing; (2) reargument; (3) re

opening of the proceeding; (4) amendment of any finding; or (5) such other relief as may be appropriate. Such petition shall state specifically the form of relief sought and, subject to this requirement, may contain alternative requests. Each such petition shall state with particularity in what respect the decision, order, or requirement or any matter determined therein is claimed to be unjust, unwarranted, or erroneous, and with respect to any finding of fact must specify the pages of record relied on. Where the petition is based upon a claim of newly discovered evidence, it must be accompanied by a verified statement of the facts relied upon, together with the facts relied on to show that the petitioner, with due diligence, could not have known or discovered such facts at the time of the hearing.

§ 1.388 Assignment and transfer of control. (a) Applications for consent to the assignment of a construction permit or license for an AM, FM, television or other broadcast station or for consent to the transfer of control of a corporation holding such a construction permit or license shall be filed with the Commission on Form F.C.C. No. 314 (Assignment of License) or F.C.C. No. 315 (Transfer of Control). Each application shall be accompanied by a copy of a proposed notice in a form prescribed by the Commission which notice the licensee or permittee shall cause to be published at least twice a week for the 3 weeks immediately following the filing of such application in a daily newspaper of general circulation published in the community in which the station is located. The notice shall state the terms and conditions of the proposed assignment or transfer, the name of the proposed assignee or transferee, and, further, that any other person desiring to purchase the facilities upon the same terms and conditions may file an application to this effect with the Federal Communications Commission within 60 days from the date of the first publication of the notice, which date shall be expressly set forth therein. Upon receipt of the application, the Commission itself will issue a similar public notice stating the terms and conditions of the proposed sale and stating that others may file competing applications for the same facilities upon the same terms and conditions.

(b) No action on any such application will be taken by the Commission for a period of 60 days from the date of first publication, during which time any person desiring to purchase the facilities upon the same terms and conditions may file a competing application. In the case of such competing application, it shall be necessary for the applicant to execute only so much of the application form as relates to the proposed assignee or transferee-F.C.C. Form No. 314, Part II, and Form No. 315, Part III.

(c) If no competing application is filed during this 60-day period, the Commission will consider the original application upon its merits and will grant it if it appears from an examination of the application and sup

porting data that public interest will be served thereby; otherwise it will be designated for hearing. If, during such 60-day period, any other application is filed, all such applications will then be considered simultaneously upon their merits, and if, upon such consideration, it appears that the proposed assignee or transferee selected by the licensee is the best qualified and that the transfer would otherwise be in the public interest, the Commission will grant the original application without a hearing. If the Commission is unable to make such a determination upon consideration of the several applications, the original application and all competing applications will be designated for hearing, to be heard in a consolidated proceeding, to determine among other things which of the applicants is best qualified to operate the station in the public interest.

(d) If, at the conclusion of such hearing, the Commission is of the opinion that the proposed assignee or transferee selected by the licensee is the best qualified and that the transfer is otherwise in the public interest, an order will be entered granting the original application. However, if the Commission is of the opinion that one of the other applicants is the best qualified and that a transfer is otherwise in the public interest, an order will be entered denying the original application and stating that the Commission's consent to an assignment of the license or construction permit or to the transfer of control of the corporate licensee or permittee to such competing applicant will be given provided the licensee or permittee and such competing applicant enter into and file with the Commission within 30 days from the date of such order a contract for the assignment of the license or construction permit, or the transfer of control of the licensee or permittee, to such competing applicant upon the same terms and conditions as stated in the original application or upon such other terms and conditions as the parties may agree upon and which new terms and conditions the Commission shall find to be in the public interest.

(e) The provisions of this section shall not apply to the following cases.

(1) Where there is a reorganization of a corporation holding a license or construction permit which involves no change in the beneficial ownership of that corporation;

(2) Where there is an assignment from an individual or individuals to a corporation owned and controlled by such individual or individuals without any change in their respective interests or from a corporation to the individual stockholders controlling such corporation when there is no change in their respective interests;

(3) Where there is an assignment or transfer by way of gift or testamentary disposition of a license or construction permit or of a controlling interest in a corporate licensee or permittee, or an assignment or transfer of a license, permit or interest to effect such testamentary disposition. This section shall,