09/13/2019

The FCC is asking for public comments on procedural changes that, if adopted, would streamline many administrative hearings under the Communications Act of 1934, as amended.

"Currently, these hearings typically are conducted like trials in civil litigation and include, among other things, live testimony before an administrative law judge, cross-examination of witnesses, and an initial decision by the administrative law judge that is subject to review by the Commission," the FCC said in a Notice of Proposed Rulemaking (NPRM[1]) in EB Docket 19-214. The FCC said its proposals "are designed to supplement the Commission's current administrative law judge referral process and promote more efficient resolution of hearings."

If adopted, the proposals would:


o Codify and expand the use of a process that would rely on written testimony and documentary evidence in lieu of live testimony and cross-examination.
o Enable Commission staff to act as a case manager that would supervise development of the written hearing record when the Commission designates itself as the presiding officer at a hearing.
o Dispense with the preparation of an intermediate opinion, whenever the record of a proceeding can be certified to the Commission for final decision.

According to the FCC, the proposed procedures would expedite its hearing processes, consistent with the requirements of the Communications Act and the Administrative Procedure Act (APA) while ensuring transparency and procedural fairness.

The FCC's current hearing rules provide that "any hearing upon an application shall be a full hearing in which the applicant and all other parties in interest shall be permitted to participate." The FCC noted that it has, on numerous occasions, curtailed the use of oral testimony and cross-examination in particular proceedings, in order to expedite the hearing process.

"In our experience, disputes in Commission proceedings typically involve criticisms by one party of the evidence proffered by another party or the legal significance of that evidence, not actual conflicts in testimony between two witnesses concerning outcome-determinative facts," the FCC said.

"We contemplate codifying and expanding the use of a written hearing process that can be used in most adjudicative proceedings, including those conducted by an administrative law judge. In particular, we propose to authorize the presiding officer to conduct a written hearing whenever factual disputes can be adequately resolved on a written record."

Among other proposed changes, the FCC would prohibit staff members who have taken an active part in investigating, prosecuting, or advocating in a case from serving as a case manager and from advising or assisting the case manager in the same case.


[1] https://docs.fcc.gov/public/attachments/FCC-19-86A1.pdf

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