47 U.S.C. § 409 — Hearings

Page 257 TITLE 47—TELECOMMUNICATIONS § 409 1 See References in Text note below. is classified principally to this chapter. For complete classification of this Act to the Code, see section 609 of this title and Tables. AMENDMENTS 1982—Pub. L. 97–259 substituted provision that all or- ders of the Commission but for payment of money shall take effect thirty calendar days from the date upon which public notice of the order is given, unless the Commission designates a different effective date, and that such orders shall continue in force for the period of time specified in the order or until the Commission or a court of competent jurisdiction issues a super- seding order, for provision that such orders would take effect within such reasonable time, not less than thirty days after service of the order, and would continue in force until its further order, or for a specified period of time, as prescribed in the order, unless the same were suspended or modified or set aside by the Commission, or suspended or set aside by a court of competent juris- diction. § 409. Hearings (a) Filing of initial decisions; exceptions In every case of adjudication (as defined in section 551 of title 5) which has been designated by the Commission for hearing, the person or persons conducting the hearing shall prepare and file an initial, tentative, or recommended decision, except where such person or persons become unavailable to the Commission or where the Commission finds upon the record that due and timely execution of its functions impera- tively and unavoidably require that the record be certified to the Commission for initial or final decision. (b) Exceptions to initial decisions; memoranda; determination of Commission or authority within Commission; prohibition against con- sideration of own decision In every case of adjudication (as defined in section 551 of title 5) which has been designated by the Commission for hearing, any party to the proceeding shall be permitted to file exceptions and memoranda in support thereof to the initial, tentative, or recommended decision, which shall be passed upon by the Commission or by the au- thority within the Commission, if any, to whom the function of passing upon the exceptions is delegated under section 155(d)(1) 1 of this title: Provided, however, That such authority shall not be the same authority which made the decision to which the exception is taken. (c) Notice and opportunity for participation by parties; applicability of administrative proce- dure provisions (1) In any case of adjudication (as defined in section 551 of title 5) which has been designated by the Commission for a hearing, no person who has participated in the presentation or prepara- tion for presentation of such case at the hearing or upon review shall (except to the extent re- quired for the disposition of ex parte matters as authorized by law) directly or indirectly make any additional presentation respecting such case to the hearing officer or officers or to the Com- mission, or to any authority within the Commis- sion to whom, in such case, review functions have been delegated by the Commission under section 155(d)(1) 1 of this title, unless upon notice and opportunity for all parties to participate. (2) The provision in section 554(d) of title 5 which states that such subsection shall not apply in determining applications for initial li- censes, shall not be applicable hereafter in the case of applications for initial licenses before the Federal Communications Commission. (d) Applicability of administrative procedure provisions To the extent that the foregoing provisions of this section and section 155(d) 1 of this title are in conflict with the provisions of subchapter II of chapter 5, and chapter 7, of title 5, such provi- sions of this section and section 155(d) 1 of this title shall be held to supersede and modify the provisions of subchapter II of chapter 5, and chapter 7, of title 5. (e) Subpenas; witnesses; production of docu- ments; fees and mileage For the purposes of this chapter the Commis- sion shall have the power to require by subpena the attendance and testimony of witnesses and the production of all books, papers, schedules of charges, contracts, agreements, and documents relating to any matter under investigation. Wit- nesses summoned before the Commission shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. (f) Designated place of hearing; aid in enforce- ment of orders Such attendance of witnesses, and the produc- tion of such documentary evidence, may be re- quired from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpena the Commission, or any party to a proceeding before the Commis- sion, may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents under the provi- sions of this section. (g) Contempts Any of the district courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpena issued to any common carrier or licensee or other person, issue an order re- quiring such common carrier, licensee, or other person to appear before the Commission (and produce books and papers if so ordered) and give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt there- of. (h) Depositions The testimony of any witness may be taken, at the instance of a party, in any proceeding or investigation pending before the Commission, by deposition, at any time after a cause or pro- ceeding is at issue on petition and answer. The Commission may also order testimony to be taken by deposition in any proceeding or inves- tigation pending before it, at any stage of such proceeding or investigation. Such depositions may be taken before any judge of any court of the United States, or any United States mag- istrate judge, or any clerk of a district court, or Page 258 TITLE 47—TELECOMMUNICATIONS § 409 any chancellor, justice, or judge of a supreme or superior court, mayor, or chief magistrate of a city, judge of a county court, or court of com- mon pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the proceeding or investigation. Rea- sonable notice must first be given in writing by the party or his attorney proposing to take such deposition to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition. Any person may be compelled to appear and depose, and to produce documentary evidence, in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the Commission, as hereinbefore provided. (i) Oaths; testimony in writing Every person deposing as herein provided shall be cautioned and sworn (or affirm, if he so re- quest) to testify the whole truth, and shall be carefully examined. His testimony shall be re- duced to writing by the magistrate taking the deposition, or under his direction, and shall, after it has been reduced to writing, be sub- scribed by the deponent. (j) Foreign depositions If a witness whose testimony may be desired to be taken by deposition be in a foreign coun- try, the deposition may be taken before an offi- cer or person designated by the Commission, or agreed upon by the parties by stipulation in writing to be filed with the Commission. All depositions must be promptly filed with the Commission. (k) Deposition fees Witnesses whose depositions are taken as au- thorized in this chapter, and the magistrate or other officer taking the same, shall severally be entitled to the same fees as are paid for like services in the courts of the United States. (l) Repealed. Pub. L. 91–452, title II, § 242, Oct. 15, 1970, 84 Stat. 930 (m) Penalties Any person who shall neglect or refuse to at- tend and testify, or to answer any lawful in- quiry, or to produce books, papers, schedules of charges, contracts, agreements, and documents, if in his power to do so, in obedience to the sub- pena or lawful requirement of the Commission, shall be guilty of a misdemeanor and upon con- viction thereof by a court of competent jurisdic- tion shall be punished by a fine of not less than $100 nor more than $5,000, or by imprisonment for not more than one year, or by both such fine and imprisonment. (June 19, 1934, ch. 652, title IV, § 409, 48 Stat. 1096; July 16, 1952, ch. 879, § 16, 66 Stat. 721; Pub. L. 87–192, § 4, Aug. 31, 1961, 75 Stat. 422; Pub. L. 90–578, title IV, § 402(b)(2), Oct. 17, 1968, 82 Stat. 1118; Pub. L. 91–452, title II, § 242, Oct. 15, 1970, 84 Stat. 930; Pub. L. 101–650, title III, § 321, Dec. 1, 1990, 104 Stat. 5117.) Editorial Notes REFERENCES IN TEXT Section 155(d) of this title, referred to in subsecs. (b), (c), and (d), was redesignated section 155(c) of this title by Pub. L. 97–259, title I, § 105(b), Sept. 13, 1982, 96 Stat. 1091. This chapter, referred to in subsecs. (e) and (k), was in the original ‘‘this Act’’, meaning act June 19, 1934, ch. 652, 48 Stat. 1064, known as the Communications Act of 1934, which is classified principally to this chapter. For complete classification of this Act to the Code, see section 609 of this title and Tables. CODIFICATION In subsecs. (a), (b), and (c)(1), ‘‘adjudication (as de- fined in section 551 of title 5)’’ substituted for ‘‘adju- dication (as defined in the Administrative Procedure Act)’’, in subsec. (c)(2) ‘‘section 554(d) of title 5’’ sub- stituted for ‘‘subsection (c) of section 5 of the Adminis- trative Procedure Act’’, and in subsec. (d) ‘‘subchapter II of chapter 5, and chapter 7, of title 5’’ substituted for ‘‘the Administrative Procedure Act’’ and ‘‘that Act’’, respectively, on authority of Pub. L. 89–554, § 7(b), Sept. 6, 1966, 80 Stat. 631, the first section of which enacted Title 5, Government Organization and Employees. AMENDMENTS 1970—Subsec. (l). Pub. L. 91–452 struck out subsec. (l) which related to the immunity from prosecution of any individual compelled to testify or produce evidence, documentary or otherwise, after claiming his privilege against self-incrimination. 1961—Subsec. (a). Pub. L. 87–192 substituted provision for filing of initial decisions, with stated exceptions, formerly contained in first sentence of subsec. (b) of this section but amplified to include tentative or rec- ommended decisions, for provision relating to assign- ment of cases to examiners. Subsec. (b). Pub. L. 87–192 provided for filing of memoranda in support of exceptions to initial, ten- tative, or recommended decisions, to be passed upon by the Commission or the designated authority within the Commission, and eliminated provisions for oral argu- ment on the exceptions, filing of initial decisions, with stated exceptions, incorporated in subsec. (a) of this section, and making all decisions part of the record and requiring the decisions to include a statement of find- ings, and conclusions upon all material issues of fact, law, or discretion and the appropriate decision, order, or requirement. See section 557 of Title 5, Government Organization and Employees. Subsec. (c). Pub. L. 87–192 continued requirement of notice and opportunity for participation by all parties when person seeks to make any additional presentation of case, having previously participated in the presen- tation of or preparation for presentation of the case, made applicable provisions of section 554(d) of Title 5 to applications for initial licenses and eliminated provi- sions for separation of functions of examiners from the investigative and prosecutory functions of persons en- gaged in performance of such functions, prohibition against consultation with Commission or any member or employee thereof with respect to initial decisions or exceptions taken to findings, rulings or recommenda- tions, prohibition against members of Office of The General Counsel, Office of the Chief Engineer or the Of- fice of the Chief Accountant from making any presen- tations respecting a case, and prohibition against per- sons engaged in performance of investigative or pros- ecuting functions for the Commission from consulting in any case of adjudication. Subsec. (d). Pub. L. 87–192 inserted references to sec- tion 155(d) of this title. 1952—Act July 16, 1952, amended section generally, in- serting subsecs. (a) to (d) and redesignating former sub- secs. (b) to (j) as (e) to (m), respectively. Page 259 TITLE 47—TELECOMMUNICATIONS § 410 Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘United States magistrate judge’’ substituted for ‘‘United States magistrate’’ in subsec. (h) pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of Title 28, Judiciary and Judicial Proce- dure. Previously, ‘‘United States magistrate’’ sub- stituted for ‘‘United States commissioner’’ pursuant to Pub. L. 90–578. See chapter 43 (§ 631 et seq.) of Title 28. EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91–452 effective on sixtieth day following Oct. 15, 1970, and not to affect any immu- nity to which any individual is entitled under this sec- tion by reason of any testimony given before sixtieth day following Oct. 15, 1970, see section 260 of Pub. L. 91–452, set out as an Effective Date; Savings Provisions note under section 6001 of Title 18, Crimes and Criminal Procedure. SAVINGS PROVISION Pub. L. 87–192, § 5, Aug. 31, 1961, 75 Stat. 422, provided that: ‘‘Notwithstanding the foregoing provisions of this Act [amending this section and sections 155 and 405 of this title], the second sentence of subsection (b) of sec- tion 409 of the Communications Act of 1934 [subsec. (b) of this section] (which relates to the filing of excep- tions and the presentation of oral argument), as in force at the time of the enactment of this Act [Aug. 31, 1961], shall continue to be applicable with respect to any case of adjudication (as defined in the Administra- tive Procedure Act) [see sections 551 et seq. and 701 et seq. of Title 5, Government Organization and Employ- ees] designated by the Federal Communications Com- mission for hearing by a notice of hearing issued prior to the date of the enactment of this Act.’’ § 410. Joint boards and commissions (a) State joint boards; reference of communica- tion matters; composition; jurisdiction, pow- ers, duties, and obligations; conduct of pro- ceedings; force and effect of joint board ac- tion; members: nomination, appointment, and rejection; allowances for expenses Except as provided in section 409 of this title, the Commission may refer any matter arising in the administration of this chapter to a joint board to be composed of a member, or of an equal number of members, as determined by the Commission, from each of the States in which the wire or radio communication affected by or involved in the proceeding takes place or is pro- posed. For purposes of acting upon such matter any such board shall have all the jurisdiction and powers conferred by law upon an examiner provided for in section 3105 of title 5, designated by the Commission, and shall be subject to the same duties and obligations. The action of a joint board shall have such force and effect and its proceedings shall be conducted in such man- ner as the Commission shall by regulations pre- scribe. The joint board member or members for each State shall be nominated by the State com- mission of the State or by the Governor if there is no State commission, and appointed by the Federal Communications Commission. The Com- mission shall have discretion to reject any nominee. Joint board members shall receive such allowances for expenses as the Commission shall provide. (b) State commissions; conferences with Commis- sion regarding matters of carriers subject to their jurisdiction; joint hearings; cooperation with Commission The Commission may confer with any State commission having regulatory jurisdiction with respect to carriers, regarding the relationship between rate structures, accounts, charges, practices, classifications, and regulations of car- riers subject to the jurisdiction of such State commission and of the Commission; and the Commission is authorized under such rules and regulations as it shall prescribe to hold joint hearings with any State commission in connec- tion with any matter with respect to which the Commission is authorized to act. The Commis- sion is authorized in the administration of this chapter to avail itself of such cooperation, serv- ices, records, and facilities as may be afforded by any State commission. (c) Federal-State Joint Board; reference of pro- ceedings regarding jurisdictional separation of common carrier property and expenses be- tween interstate and intrastate operations and other matters relating to common car- rier communications of joint concern; juris- diction, powers, duties, and obligations; rec- ommendation of decisions; State members; presence at oral arguments and nonvoting participation in deliberations; composition; Chairman The Commission shall refer any proceeding re- garding the jurisdictional separation of common carrier property and expenses between inter- state and intrastate operations, which it insti- tutes pursuant to a notice of proposed rule- making and, except as provided in section 409 of this title, may refer any other matter, relating to common carrier communications of joint Federal-State concern, to a Federal-State Joint Board. The Joint Board shall possess the same jurisdiction, powers, duties, and obligations as a joint board established under subsection (a) of this section, and shall prepare a recommended decision for prompt review and action by the Commission. In addition, the State members of the Joint Board shall sit with the Commission en banc at any oral argument that may be scheduled in the proceeding. The Commission shall also afford the State members of the Joint Board an opportunity to participate in its delib- erations, but not vote, when it has under consid- eration the recommended decision of the Joint Board or any further decisional action that may be required in the proceeding. The Joint Board shall be composed of three Commissioners of the Commission and of four State commissioners nominated by the national organization of the State commissions and approved by the Com- mission. The Chairman of the Commission, or another Commissioner designated by the Com- mission, shall serve as Chairman of the Joint Board. (June 19, 1934, ch. 652, title IV, § 410, 48 Stat. 1098; July 16, 1952, ch. 879, § 17, 66 Stat. 722; Aug. 2, 1956, ch. 874, § 4, 70 Stat. 932; Pub. L. 92–131, § 2, Sept. 30, 1971, 85 Stat. 363; Pub. L. 103–414, title III, § 303(a)(21), Oct. 25, 1994, 108 Stat. 4295.)