NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** FCC 96-92 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Implementation of Section 403(c) of ) the Telecommunications Act of 1996 ) ) ) ITFS Processing Issues ) ORDER Adopted: March 7, 1996 Released: March 8, 1996 By the Commission: 1. On February 8, 1996, President Clinton signed into law the Telecommunications Act of 1996 (the "Telecom Act"). Section 403(c) of the Telecom Act authorizes the Commission to delegate to the staff the authority to process and grant from among mutually exclusive applications for Instructional Television Fixed Service (ITFS) facilities. By this Order, we exercise this option and delegate such authority to the staff. 2. Statutory Authority to Delegate. Mutually exclusive applications for new ITFS facilities currently are resolved by the full Commission in a paper hearing by means of a point accumulation system. After calculating each applicant's score based on information submitted with the application, the Commission determines which applicant is the most qualified to serve the public interest. Because this is considered a comparative hearing, the processing staff has been statutorily barred from granting or denying any of the applications. Pursuant to the Administrative Procedure Act ("APA"), the Commission itself must preside in the taking of evidence in a comparative hearing, or it may delegate this function to either (1) one or more members of the Commission, or (2) one or more administrative law judges. However, the APA adds that these limitations do not supersede agency delegation authority that is designated under statute. 3. The Telecom Act authorizes such a delegation with regard to the processing of ITFS applications, expressly superseding the APA's restrictions. Specifically, Section 403(c) of the Telecom Act amends the Communications Act of 1934 by deleting the last sentence of Section 5(c)(1) and replacing it with the following: Except for cases involving the authorization of service in the instructional television fixed service, or as otherwise provided in this Act, nothing in this paragraph shall authorize the Commission to provide for the conduct, by any person or persons other than persons referred to in paragraph (2) or (3) of section 556(b) of title 5, United States Code [the APA], of any hearing to which such section applies. In expressly carving out an exception to the APA restrictions for ITFS applications, Congress has granted delegation authority to the Commission. 4. Exercise of the Commission's Delegation Authority. The Telecom Act permits, but does not require, the Commission to delegate hearing authority for ITFS applications to the staff. We believe that delegation to the staff of ITFS processing authority clearly is in the public interest. It will speed the processing of ITFS applications, complementing recent rule changes designed to increase ITFS processing efficiency. Moreover, the Commission has conducted a substantial number of hearings for ITFS facilities over the past several years and has developed a large body of case law addressing a variety of issues. Educational applicants, their wireless cable lessees, and Commission staff have become familiar with the many legal and technical issues involved in applying for ITFS facilities. Thus, we believe that delegation will increase processing efficiency and allow more rapid authorization and initiation of service to the public. 5. Administrative Matters. Because this action involves rules of agency organization and procedure, the notice and comment requirements of the APA are inapplicable. 6. Ordering Clauses. Therefore, IT IS ORDERED that the authority to conduct a hearing and to select from among mutually exclusive applications in the Instructional Television Fixed Service IS DELEGATED to the staff. 7. IT IS FURTHER ORDERED that, pursuant to authority contained in Sections 4(i) and 303 of the Communications Act of 1934, as amended, Sections 0.151 and 0.283 of the Commission's Rules, 47 C.F.R.  0.151, 0.283, ARE AMENDED as set forth in the Appendix. 8. Because this involves an internal procedural matter not affecting the substantive rights of any entity, and in order to expedite the processing of ITFS applications, IT IS FURTHER ORDERED that for good cause shown pursuant to the provisions of 5 U.S.C.  553(d)(3), this Order shall become effective immediately upon publication in the Federal Register. 9. IT IS FURTHER ORDERED that this proceeding IS TERMINATED. 10. Authority for the adoption of the foregoing revision is contained in Sections 5(b), 5(c)(1), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.  155(b), 155(c)(1), and 303(r). 11. Additional Information. For additional information on this Order, please contact Paul Gordon (202-418-2130), Mass Media Bureau. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary Appendix Part 0 of Title 47 of the Code of Federal Regulations is amended to read as follows: PART 0 - COMMISSION ORGANIZATION 1. The authority citation for Part 0 continues to read as follows: AUTHORITY: Secs. 5, 48 Stat. 1068, as amended, 47 U.S.C.  155, 225, unless otherwise noted. 2. Section 0.151 is amended by revising the second sentence and adding a new final sentence to read as follows:  0.151 Functions of the Office * * * It is responsible for hearing and conducting all adjudicatory cases designated for any evidentiary adjudicatory hearing other than those designated to be heard by the Commission en banc, those designated to be heard by one or more members of the Commission, and those involving the authorization of service in the Instructional Television Fixed Service. The Office of Administrative Law Judges is also responsible for conducting such other hearings as the Commission may assign. 3. Section 0.283 is amended by revising paragraph (a)(9)(i) to read as follows:  0.283 Authority Delegated (a) * * * (9)* * * (i) Mutually exclusive applications not in the Instructional Television Fixed Service, including renewal and construction permit applications, involving non-routine hearing issues. * * * * *