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]