FCC 1.251 Revised as of October 1, 2014
Goto Year:2013 |
§ 1.251 Summary decision.
(a)(1) Any party to an adjudicatory proceeding may move for summary
decision of all or any of the issues set for hearing. The motion shall
be filed at least 20 days prior to the date set for commencement of the
hearing. The party filing the motion may not rest upon mere allegations
or denials but must show, by affidavit or by other materials subject to
consideration by the presiding officer, that there is no genuine issue
of material fact for determination at the hearing.
(2) With the permission of the presiding officer, or upon his
invitation, a motion for summary decision may be filed at any time
before or after the commencement of the hearing. No appeal from an
order granting or denying a request for permission to file a motion for
summary decision shall be allowed. If the presiding officer authorizes
a motion for summary decision after the commencement of the hearing,
proposed findings of fact and conclusions of law on those issues which
the moving party believes can be resolved shall be attached to the
motion, and any other party may file findings of fact and conclusions
of law as an attachment to pleadings filed by him pursuant to paragraph
(b) of this section.
(b) Within 14 days after a motion for summary decision is filed, any
other party to the proceeding may file an opposition or a countermotion
for summary decision. A party opposing the motion may not rest upon
mere allegations or denials but must show, by affidavit or by other
materials subject to consideration by the presiding officer, that there
is a genuine issue of material fact for determination at the hearing,
that he cannot, for good cause, present by affidavit or otherwise facts
essential to justify his opposition, or that summary decision is
(c) Affidavits shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters
(d) The presiding officer may, in his discretion, set the matter for
argument and call for the submission of proposed findings, conclusions,
briefs or memoranda of law. The presiding officer, giving appropriate
weight to the nature of the proceeding, the issue or issues, the proof,
and to the need for cross-examination, may grant a motion for summary
decision to the extent that the pleadings, affidavits, materials
obtained by discovery or otherwise, admissions, or matters officially
noticed, show that there is no genuine issue as to any material fact
and that a party is otherwise entitled to summary decision. If it
appears from the affidavits of a party opposing the motion that he
cannot, for good cause shown, present by affidavit or otherwise facts
essential to justify his opposition, the presiding officer may deny the
motion, may order a continuance to permit affidavits to be obtained or
discovery to be had, or make such other order as is just.
(e) If all of the issues (or a dispositive issue) are determined on a
motion for summary decision no hearing (or further hearing) will be
held. The presiding officer will issue a Summary Decision, which is
subject to appeal or review in the same manner as an Initial Decision.
See § § 1.271 through 1.282. If some of the issues only (including no
dispositive issue) are decided on a motion for summary decision, or if
the motion is denied, the presiding officer will issue a memorandum
opinion and order, interlocutory in character, and the hearing will
proceed on the remaining issues. Appeal from interlocutory rulings is
governed by § 1.301.
(f) The presiding officer may take any action deemed necessary to
assure that summary decision procedures are not abused. He may rule in
advance of a motion that the proceeding is not appropriate for summary
decision, and may take such other measures as are necessary to prevent
any unwarranted delay.
(1) Should it appear to the satisfaction of the presiding officer that
a motion for summary decision has been presented in bad faith or solely
for the purpose of delay, or that such a motion is patently frivolous,
he will enter a determination to that effect upon the record.
(2) If, on making such determination, the presiding officer concludes
that the facts warrant disciplinary action against an attorney, he will
certify the matter to the Commission with his findings and
recommendations, for consideration under § 1.24.
(3) If, on making such determination, the presiding officer concludes
that the facts warrant a finding of bad faith on the part of a party to
the proceeding, he will certify the matter to the Commission, with his
findings and recommendations, for a determination as to whether the
facts warrant addition of an issue as to the character qualifications
of that party.
[ 37 FR 7507 , Apr. 15, 1972, as amended at 42 FR 56508 , Oct. 26, 1977]
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