Sec.  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  Sec. 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  Sec. 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 applicaton 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.,  Sec. 1.730) shall be filed within 15 days of
   public notice of the decision, as that date is defined in  Sec. 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  Sec.  Sec. 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  Sec. 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]