Sec.  22.935   Procedures for comparative renewal proceedings.

   The procedures in this section apply to comparative renewal proceedings in
   the Cellular Radiotelephone Service.

   (a) If one or more of the applications competing with an application for
   renewal of a cellular authorization are filed, the renewal applicant must
   file  with  the  Commission  its  original  renewal expectancy showing
   electronically via the ULS. This filing must be submitted no later than 60
   days after the date of the Public Notice listing as acceptable for filing
   the renewal application and the competing applications.

   (b)  Interested parties may file petitions to deny any of the mutually
   exclusive applications. Any such petitions to deny must be filed no later
   than 30 days after the date that the renewal applicant submitted its renewal
   expectancy showing. Applicants may file replies to any petitions to deny
   applications that are filed. Any such replies must be filed no later than 15
   days after the date that the petition(s) to deny was filed. No further
   pleadings will be accepted.

   (c)  In  most  instances,  the  renewal  application and any competing
   applications will be designated for a two-step procedure. An Administrative
   Law Judge (Presiding Judge) will conduct a threshold hearing (step one), in
   which both the licensee and the competing applicants will be parties, to
   determine whether the renewal applicant deserves a renewal expectancy. If
   the order designating the applications for hearing specifies any basic
   qualifying issues against the licensee, those issues will be tried in this
   threshold  hearing. If the Presiding Judge determines that the renewal
   applicant is basically qualified and due a renewal expectancy, the competing
   applicants will be found ineligible for further consideration and their
   applications will be denied. If the Presiding Judge determines that the
   renewal applicant does not merit a renewal expectancy but is otherwise
   qualified, then all of the applications will be considered in a comparative
   hearing (step two).

   (d) Any competing applicant may request a waiver of the threshold hearing
   (step one), if such applicant demonstrates that its proposal so far exceeds
   the service already being provided that there would be no purpose in making
   a threshold determination as to whether the renewal applicant deserved a
   renewal expectancy vis-a-vis such a competing applicant. Any such waiver
   request must be filed at the time the requestor's application is filed.
   Petitions opposing such waiver requests may be filed. Any such petitions
   must  be  filed  no later than 30 days after the date that the renewal
   applicant submitted its renewal expectancy showing. Replies to any petitions
   opposing such waiver requests may be filed. Any such replies must be filed
   no later than 15 days after the date that the petition(s) were filed. No
   further pleadings will be accepted. Any waiver request submitted pursuant to
   this paragraph will be acted upon prior to designating the applications for
   hearing. If a request to waive the threshold hearing (step one) is granted,
   the renewal expectancy issue will be designated as part of the comparative
   hearing (step two), and will remain the most important comparative factor in
   deciding the case, as provided in  Sec. 22.940(a).

   (e) If the Presiding Judge issues a ruling in the threshold (step one) that
   denies the licensee a renewal expectancy, all of the applicants involved in
   the proceeding will be allowed to file direct cases no later than 90 days
   after the release date of the Presiding Judge's ruling. Rebuttal cases must
   be filed no later than 30 days after the date that the direct cases were
   filed.

   (f)  The  Presiding  Judge  shall use the expedited hearing procedures
   delineated in this paragraph in both threshold (step one) and comparative
   (step two) hearings conducted in comparative cellular renewal proceedings.

   (1) The Presiding Judge will schedule a first hearing session as soon as
   practicable after the date for filing rebuttal evidence. This first session
   will  be an evidentiary admission session at which each applicant will
   identify and offer its previously circulated direct and rebuttal exhibits,
   and each party will have an opportunity to lodge objections.

   (2) After accepting the exhibits into evidence, the Presiding Judge will
   entertain motions to cross-examine and rule whether any sponsoring witness
   needs to be produced for cross-examination.

   Determination of what, if any, cross-examination is necessary is within the
   sound judicial discretion of the Presiding Judge, the prevailing standard
   being whether the person requesting cross-examination has persuasively
   demonstrated that written evidence is ineffectual to develop proof. If
   cross-examination is necessary, the Presiding Judge will specify a date for
   the appearance of all witnesses. In addition, if the designation order
   points out an area where additional underlying data is needed, the Presiding
   Judge  will  have the authority to permit the limited use of discovery
   procedures. Finally, the Presiding Judge may find that certain additional
   testimony or cross-examination is needed to provide a complete record for
   the FCC. If so, the Presiding Judge may schedule a further session.

   (3) After the hearing record is closed, the Presiding Judge may request
   Proposed Findings of Fact and Conclusions of Law to be filed no later than
   30 days after the final hearing session. Replies are not permitted except in
   unusual cases and then only with respect to the specific issues named by the
   Presiding Judge.

   (4) The Presiding Judge will then issue an Initial Decision, preferably
   within 60 days of receipt of the last pleadings. If mutually exclusive
   applications  are before the Presiding Judge, the Presiding Judge will
   determine which applicant is best qualified. The Presiding Judge may also
   rank the applicants in order of merit if there are more than two.

   (5) Parties will have 30 days in which to file exceptions to the Initial
   Decision.

   [ 59 FR 59507 , Nov. 17, 1994, as amended at  62 FR 4172 , Jan. 29, 1997;  63 FR 68951 , Dec. 14, 1998]