§  1.115   Application for review of action taken pursuant to delegated
authority.

   (a) Any person aggrieved by any action taken pursuant to delegated
   authority may file an application requesting review of that action by
   the Commission. Any person filing an application for review who has not
   previously participated in the proceeding shall include with his
   application a statement describing with particularity the manner in
   which he is aggrieved by the action taken and showing good reason why
   it was not possible for him to participate in the earlier stages of the
   proceeding. Any application for review which fails to make an adequate
   showing in this respect will be dismissed.

   (b)(1) The application for review shall concisely and plainly state the
   questions presented for review with reference, where appropriate, to
   the findings of fact or conclusions of law.

   (2) Except as provided in paragraph (b)(5) of this section, the
   application for review shall specify with particularity, from among the
   following, the factor(s) which warrant Commission consideration of the
   questions presented:

   (i) The action taken pursuant to delegated authority is in conflict
   with statute, regulation, case precedent, or established Commission
   policy.

   (ii) The action involves a question of law or policy which has not
   previously been resolved by the Commission.

   (iii) The action involves application of a precedent or policy which
   should be overturned or revised.

   (iv) An erroneous finding as to an important or material question of
   fact.

   (v) Prejudicial procedural error.

   (3) The application for review shall state with particularity the
   respects in which the action taken by the designated authority should
   be changed.

   (4) The application for review shall state the form of relief sought
   and, subject to this requirement, may contain alternative requests.

   (c) No application for review will be granted if it relies on questions
   of fact or law upon which the designated authority has been afforded no
   opportunity to pass.

   Note: Subject to the requirements of § 1.106, new questions of fact or
   law may be presented to the designated authority in a petition for
   reconsideration.

   (d) Except as provided in paragraph (e) of this section, the
   application for review and any supplemental thereto shall be filed
   within 30 days of public notice of such action, as that date is defined
   in section 1.4(b). Opposition to the application shall be filed within
   15 days after the application for review is filed. Except as provided
   in paragraph (e)(3) of this section, replies to oppositions shall be
   filed within 10 days after the opposition is filed and shall be limited
   to matters raised in the opposition.

   (e)(1) Applications for review of interlocutory rulings made by the
   Chief Administrative Law Judge (see § 0.351) shall be deferred until the
   time when exceptions are filed unless the Chief Judge certifies the
   matter to the Commission for review. A matter shall be certified to the
   Commission only if the Chief Judge determines that it presents a new or
   novel question of law or policy and that the ruling is such that error
   would be likely to require remand should the appeal be deferred and
   raised as an exception. The request to certify the matter to the
   Commission shall be filed within 5 days after the ruling is made. The
   application for review shall be filed within 5 days after the order
   certifying the matter to the Commission is released or such ruling is
   made. Oppositions shall be filed within 5 days after the application is
   filed. Replies to oppositions shall be filed only if they are requested
   by the Commission. Replies (if allowed) shall be filed within 5 days
   after they are requested. A ruling certifying or not certifying a
   matter to the Commission is final: Provided, however, That the
   Commission may, on its own motion, dismiss the application for review
   on the ground that objections to the ruling should be deferred and
   raised as an exception.

   (2) The failure to file an application for review of an interlocutory
   ruling made by the Chief Administrative Law Judge or the denial of such
   application by the Commission, shall not preclude any party entitled to
   file exceptions to the initial decision from requesting review of the
   ruling at the time when exceptions are filed. Such requests will be
   considered in the same manner as exceptions are considered.

   (3) Applications for review of a hearing designation order issued under
   delegated authority shall be deferred until exceptions to the initial
   decision in the case are filed, unless the presiding Administrative Law
   Judge certifies such an application for review to the Commission. A
   matter shall be certified to the Commission only if the presiding
   Administrative Law Judge determines that the matter involves a
   controlling question of law as to which there is substantial ground for
   difference of opinion and that immediate consideration of the question
   would materially expedite the ultimate resolution of the litigation. A
   ruling refusing to certify a matter to the Commission is not
   appealable. In addition, the Commission may dismiss, without stating
   reasons, an application for review that has been certified, and direct
   that the objections to the hearing designation order be deferred and
   raised when exceptions in the initial decision in the case are filed. A
   request to certify a matter to the Commission shall be filed with the
   presiding Administrative Law Judge within 5 days after the designation
   order is released. Any application for review authorized by the
   Administrative Law Judge shall be filed within 5 days after the order
   certifying the matter to the Commission is released or such a ruling is
   made. Oppositions shall be filed within 5 days after the application
   for review is filed. Replies to oppositions shall be filed only if they
   are requested by the Commission. Replies (if allowed) shall be filed
   within 5 days after they are requested.

   (4) Applications for review of final staff decisions issued on
   delegated authority in formal complaint proceedings on the Enforcement
   Bureau's Accelerated Docket (see, e.g., § 1.730) shall be filed within
   15 days of public notice of the decision, as that date is defined in
   § 1.4(b). These applications for review oppositions and replies in
   Accelerated Docket proceedings shall be served on parties to the
   proceeding by hand or facsimile transmission.

   (f) Applications for review, oppositions, and replies shall conform to
   the requirements of § § 1.49, 1.51, and 1.52, and shall be submitted to
   the Secretary, Federal Communications Commission, Washington, DC 20554.
   Except as provided below, applications for review and oppositions
   thereto shall not exceed 25 double-space typewritten pages.
   Applications for review of interlocutory actions in hearing proceedings
   (including designation orders) and oppositions thereto shall not exceed
   5 double-spaced typewritten pages. When permitted (see paragraph (e)(3)
   of this section), reply pleadings shall not exceed 5 double-spaced
   typewritten pages. The application for review shall be served upon the
   parties to the proceeding. Oppositions to the application for review
   shall be served on the person seeking review and on parties to the
   proceeding. When permitted (see paragraph (e)(3) of this section),
   replies to the opposition(s) to the application for review shall be
   served on the person(s) opposing the application for review and on
   parties to the proceeding.

   (g) The Commission may grant the application for review in whole or in
   part, or it may deny the application with or without specifying reasons
   therefor. A petition requesting reconsideration of a ruling which
   denies an application for review will be entertained only if one or
   more of the following circumstances is present:

   (1) The petition relies on facts which related to events which have
   occurred or circumstances which have changed since the last opportunity
   to present such matters; or

   (2) The petition relies on facts unknown to petitioner until after his
   last opportunity to present such matters which could not, through the
   exercise of ordinary diligence, have been learned prior to such
   opportunity.

   (h)(1) If the Commission grants the application for review in whole or
   in part, it may, in its decision:

   (i) Simultaneously reverse or modify the order from which review is
   sought;

   (ii) Remand the matter to the designated authority for reconsideration
   in accordance with its instructions, and, if an evidentiary hearing has
   been held, the remand may be to the person(s) who conducted the
   hearing; or

   (iii) Order such other proceedings, including briefs and oral argument,
   as may be necessary or appropriate.

   (2) In the event the Commission orders further proceedings, it may stay
   the effect of the order from which review is sought. (See § 1.102.)
   Following the completion of such further proceedings the Commission may
   affirm, reverse or modify the order from which review is sought, or it
   may set aside the order and remand the matter to the designated
   authority for reconsideration in accordance with its instructions. If
   an evidentiary hearing has been held, the Commission may remand the
   matter to the person(s) who conducted the hearing for rehearing on such
   issues and in accordance with such instructions as may be appropriate.

   Note: For purposes of this section, the word “order” refers to that
   portion of its action wherein the Commission announces its judgment.
   This should be distinguished from the “memorandum opinion” or other
   material which often accompany and explain the order.

   (i) An order of the Commission which reverses or modifies the action
   taken pursuant to delegated authority is subject to the same provisions
   with respect to reconsideration as an original order of the Commission.
   In no event, however, shall a ruling which denies an application for
   review be considered a modification of the action taken pursuant to
   delegated authority.

   (j) No evidence other than newly discovered evidence, evidence which
   has become available only since the original taking of evidence, or
   evidence which the Commission believes should have been taken in the
   original proceeding shall be taken on any rehearing ordered pursuant to
   the provisions of this section.

   (k) The filing of an application for review shall be a condition
   precedent to judicial review of any action taken pursuant to delegated
   authority.

   (Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C.
   154, 303, 307)

   [ 28 FR 12415 , Nov. 22, 1963, as amended at  41 FR 14871 , Apr. 8, 1976;
    44 FR 60295 , Oct. 19, 1979;  46 FR 18556 , Mar. 25, 1981;  48 FR 12719 ,
   Mar. 28, 1983;  50 FR 39000 , Sept. 26, 1985;  54 FR 40392 , Oct. 2, 1989;
    55 FR 36641 , Sept. 6, 1990;  57 FR 19387 , May 6, 1992;  62 FR 4170 , Jan.
   29, 1997;  63 FR 41446 , Aug. 4, 1998;  67 FR 13223 , Mar. 21, 2002]