Goto Section: 76.6 | 76.8 | Table of Contents
Revised as of December 4, 2012
Goto Year:2011 |
§ 76.7 General special relief, waiver, enforcement, complaint, show cause,
forfeiture, and declaratory ruling procedures.
(a) Initiating pleadings. In addition to the general pleading
requirements, initiating pleadings must adhere to the following
(1) Petitions. On petition by any interested party, cable television
system operator, a multichannel video programming distributor, local
franchising authority, or an applicant, permittee, or licensee of a
television broadcast or translator station, the Commission may waive
any provision of this part 76, impose additional or different
requirements, issue a ruling on a complaint or disputed question, issue
a show cause order, revoke the certification of the local franchising
authority, or initiate a forfeiture proceeding. Petitions may be
submitted informally by letter.
(2) Complaints. Complaints shall conform to the relevant rule section
under which the complaint is being filed.
(3) Certificate of service. Petitions and Complaints shall be
accompanied by a certificate of service on any cable television system
operator, franchising authority, station licensee, permittee, or
applicant, or other interested person who is likely to be directly
affected if the relief requested is granted.
(4) Statement of relief requested. (i) The petition or complaint shall
state the relief requested. It shall state fully and precisely all
pertinent facts and considerations relied on to demonstrate the need
for the relief requested and to support a determination that a grant of
such relief would serve the public interest.
(ii) The petition or complaint shall set forth all steps taken by the
parties to resolve the problem, except where the only relief sought is
a clarification or interpretation of the rules.
(iii) A petition or complaint may, on request of the filing party, be
dismissed without prejudice as a matter of right prior to the adoption
date of any final action taken by the Commission with respect to the
petition or complaint. A request for the return of an initiating
document will be regarded as a request for dismissal.
(5) Failure to prosecute. Failure to prosecute petition or complaint,
or failure to respond to official correspondence or request for
additional information, will be cause for dismissal. Such dismissal
will be without prejudice if it occurs prior to the adoption date of
any final action taken by the Commission with respect to the initiating
(b) Responsive pleadings. In addition to the general pleading
requirements, responsive pleadings must adhere to the following
(1) Comments/oppositions to petitions. Unless otherwise directed by the
Commission, interested persons may submit comments or oppositions
within twenty (20) days after the date of public notice of the filing
of such petition. Comments or oppositions shall be served on the
petitioner and on all persons listed in petitioner's certificate of
service, and shall contain a detailed full showing, supported by
affidavit, of any facts or considerations relied on.
(2) Answers to complaints. (i) Unless otherwise directed by the
Commission, any party who is served with a complaint shall file an
answer in accordance with the following, and the relevant rule section
under which the complaint is being filed.
(ii) The answer shall be filed within 20 days of service of the
complaint, unless another period is set forth in the relevant rule
(iii) The answer shall advise the parties and the Commission fully and
completely of the nature of any and all defenses, and shall respond
specifically to all material allegations of the complaint. Collateral
or immaterial issues shall be avoided in answers and every effort
should be made to narrow the issues. Any party against whom a complaint
is filed failing to file and serve an answer within the time and in the
manner prescribed by these rules may be deemed in default and an order
may be entered against defendant in accordance with the allegations
contained in the complaint.
(iv) The answer shall admit or deny the averments on which the adverse
party relies. If the defendant is without knowledge or information
sufficient to form a belief as to the truth of an averment, the
defendant shall so state and this has the effect of a denial. When a
defendant intends in good faith to deny only part of an averment, the
answer shall specify so much of it as is true and shall deny only the
remainder. The defendant may make its denials as specific denials of
designated averments or paragraphs, or may generally deny all the
averments except such designated averments or paragraphs as the
defendant expressly admits. When the defendant intends to controvert
all averments, the defendant may do so by general denial.
(v) Averments in a complaint are deemed to be admitted when not denied
in the answer.
(c) Reply. In addition to the general pleading requirements, reply
comments and replies must adhere to the following requirements:
(1) The petitioner or complainant may file a reply to a responsive
pleading which shall be served on all persons who have filed pleadings
and shall also contain a detailed full showing, supported by affidavit,
of any additional facts or considerations relied on. Unless expressly
permitted by the Commission, reply comments and replies to an answer
shall not contain new matters.
(2) Failure to reply will not be deemed an admission of any allegations
contained in the responsive pleading, except with respect to any
affirmative defense set forth therein.
(3) Unless otherwise directed by the Commission or the relevant rule
section, comments and replies to answers must be filed within ten (10)
days after submission of the responsive pleading.
(d) Motions. Except as provided in this section, or upon a showing of
extraordinary circumstances, additional motions or pleadings by any
party will not be accepted.
(e) Additional procedures and written submissions. (1) The Commission
may specify other procedures, such as oral argument or evidentiary
hearing directed to particular aspects, as it deems appropriate. In the
event that an evidentiary hearing is required, the Commission will
determine, on the basis of the pleadings and such other procedures as
it may specify, whether temporary relief should be afforded any party
pending the hearing and the nature of any such temporary relief.
(2) The Commission may require the parties to submit any additional
information it deems appropriate for a full, fair, and expeditious
resolution of the proceeding, including copies of all contracts and
documents reflecting arrangements and understandings alleged to violate
the requirements set forth in the Communications Act and in this part,
as well as affidavits and exhibits.
(3) The Commission may, in its discretion, require the parties to file
briefs summarizing the facts and issues presented in the pleadings and
other record evidence.
(i) These briefs shall contain the findings of fact and conclusions of
law which that party is urging the Commission to adopt, with specific
citations to the record, and supported by relevant authority and
(ii) Any briefs submitted shall be filed concurrently by both the
complainant and defendant at such time as is designated by the staff.
Such briefs shall not exceed fifty (50) pages.
(iii) Reply briefs may be submitted by either party within twenty (20)
days from the date initial briefs are due. Reply briefs shall not
exceed thirty (30) pages.
(f) Discovery. (1) The Commission staff may in its discretion order
discovery limited to the issues specified by the Commission. Such
discovery may include answers to written interrogatories, depositions
or document production.
(2) The Commission staff may in its discretion direct the parties to
submit discovery proposals, together with a memorandum in support of
the discovery requested. Such discovery requests may include answers to
written interrogatories, document production or depositions. The
Commission staff may hold a status conference with the parties,
pursuant to § 76.8 of this part, to determine the scope of discovery,
or direct the parties regarding the scope of discovery. If the
Commission staff determines that extensive discovery is required or
that depositions are warranted, the staff may advise the parties that
the proceeding will be referred to an administrative law judge in
accordance with paragraph (g) of this section.
(g) Referral to administrative law judge. (1) After reviewing the
pleadings, and at any stage of the proceeding thereafter, the
Commission staff may, in its discretion, designate any proceeding or
discrete issues arising out of any proceeding for an adjudicatory
hearing before an administrative law judge.
(2) Before designation for hearing, the staff shall notify, either
orally or in writing, the parties to the proceeding of its intent to so
designate, and the parties shall be given a period of ten (10) days to
elect to resolve the dispute through alternative dispute resolution
procedures, or to proceed with an adjudicatory hearing. Such election
shall be submitted in writing to the Commission and the Chief
Administrative Law Judge.
(3) Unless otherwise directed by the Commission, or upon motion by the
Media Bureau Chief, the Media Bureau Chief shall not be deemed to be a
party to a proceeding designated for a hearing before an administrative
law judge pursuant to this paragraph (g).
(h) System community units outside the Contiguous States. On a finding
that the public interest so requires, the Commission may determine that
a system community unit operating or proposing to operate in a
community located outside of the 48 contiguous states shall comply with
provisions of subparts D, F, and G of this part in addition to the
provisions thereof otherwise applicable.
(i) Commission ruling. The Commission, after consideration of the
pleadings, may determine whether the public interest would be served by
the grant, in whole or in part, or denial of the request, or may issue
a ruling on the complaint or dispute, issue an order to show cause, or
initiate a forfeiture proceeding.
Note 1 to § 76.7: After issuance of an order to show cause pursuant to
this section, the rules of procedure in Title 47, part 1, subpart A,
§ § 1.91-1.95 of this chapter shall apply.
Note 2 to § 76.7: Nothing in this section is intended to prevent the
Commission from initiating show cause or forfeiture proceedings on its
own motion; Provided, however, that show cause proceedings and
forfeiture proceedings pursuant to § 1.80(g) of this chapter will not
be initiated by such motion until the affected parties are given an
opportunity to respond to the Commission's charges.
Note 3 to § 76.7: Forfeiture proceedings are generally nonhearing
matters conducted pursuant to the provisions of § 1.80(f) of this
chapter (Notice of Apparent Liability). Petitioners who contend that
the alternative hearing procedures of § 1.80(g) of this chapter should
be followed in a particular case must support this contention with a
specific showing of the facts and considerations relied on.
Note 4 to § 76.7: To the extent a conflict is perceived between the
general pleading requirements of this section, and the procedural
requirements of a specific section, the procedural requirements of the
specific section should be followed.
[ 64 FR 6569 , Feb. 10, 1999, as amended at 67 FR 13234 , Mar. 21, 2002;
76 FR 60673 , Sept. 29, 2011]
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Goto Section: 76.6 | 76.8
Goto Year: 2011 |
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