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 96-88 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In re the Matter of ) ) Amendment of Section 1.4 of ) the Commission's Rules Relating to ) Computation of Time ) MEMORANDUM OPINION AND ORDER Adopted: March 5, 1996 ; Released: March 15, 1996 By the Commission: 1. In this order we make three minor amendments to the Commission's computation of time rule, 47 C.F.R.  1.4. First, we add an illustrative example to the rules to make more explicit that the three extra days added for service by mail where a response period is 10 days or less are calculated from the end of the filing period regardless of whether the last day of the filing period is a business day or a holiday. Second, we provide that where any party is served by mail, and the response period is 10 days or less, the filing period for all parties (not just the ones served by mail) shall be extended the additional three days. Third, we provide that service by facsimile machine shall be treated as hand delivery, not service by mail. 2. Section 1.4(h) addresses the filing period for responding to pleadings that have been served on a party by mail. The rule states: If a document is required to be served upon other parties by statute or Commission regulation and the document is in fact served by mail . . . and the filing period for a response is 10 days or less, an additional 3 days (excluding holidays) will be allowed for filing a response. . . . 3. Section 1.4(j) governs the filing date for pleadings that would otherwise be due on a holiday (when the Commission is closed for business). It provides that: If, after making all the computations provided for in this section, the filing date falls on a holiday, the document shall be filed on the next business day. . . . 4. Because section 1.4(h) indicates that the three extra days for a response to a pleading served by mail where the response period is 10 days or less is based on the "filing period," not the "filing date," and because section 1.4(j) says that the "filing date" is not calculated until after all other computations are made, the additional three days for service by mail are added without regard to whether the last day of the filing period is a holiday and would therefore not be the filing date if service were by hand. Thus, the first day to be counted for the extra three days is the first business day after the end of the filing period whether the filing period ends on a business day or a holiday. How the rule applies is demonstrated in Summit Communications, Inc., 9 FCC Rcd 4833, n.1 (Cable Serv. Bur. 1994). In that case, a party filed a petition for reconsideration of a franchising authority's certification (47 C.F.R.  76.911) on Thursday, October 28, 1993. The filing period for oppositions was 10 days (47 C.F.R.  1.106(g)), so the filing period ended on Sunday, November 7. Service was made by mail, an additional three days were added following the end of the filing period on Sunday, November 7, and the opposition was due Wednesday, November 10. The fact that the "filing date" would have been moved forward from Sunday to Monday if there had not been mail service was irrelevant, since under the rules the filing date is not determined until after all other computations. Because a more recent staff decision interpreted the rule differently and incorrectly added the extra three days from the date the filing date would have been if service was by hand rather than from the end of the filing period, see Falcon Cablevision, 10 FCC Rcd 10409 n.3 (Cable Serv. Bur. 1995), we are amending the rule to be more explicit by adding an illustrative example setting out the correct interpretation of the rule. 5. We also amend section 4(h) to provide that when one party is served by mail and the response period is 10 days or less, all parties should get the additional three days. This approach is most equitable because it avoids the possibility that some parties in multi-party litigation may be required to file their pleadings before others, giving others an opportunity to "preview" their arguments before filing their own pleading. We will therefore amend section 4(h) to specify that if one party is served by mail and the response period is 10 days or less, all parties will given the additional three days. 6. Finally, we amend section 1.4(h) to treat service by facsimile machine the same as hand service. See 47 C.F.R.  1.773(a)(4) (treating delivery by facsimile machine like hand service in the tariff context). See also SEC v. Stratton Oakmont, Inc., 1995 WL 46559 (D.D.C. 1995). Because service by facsimile, like hand delivery, is essentially instantaneous, we believe that this treatment is warranted generally. 7. Because the rule amendments involve rules of agency organization, procedure, or practice, the notice and comment and effective date provisions of the Administrative Procedure Act are inapplicable. 5 U.S.C.  553(b)(A), (d). 8. ACCORDINGLY, IT IS ORDERED, That pursuant to section 4(i), 4(j), and 303(r)of the Communications Act, 47 U.S.C.  154(i), 154(j), and 303(r), 47 C.F.R. Part I IS AMENDED as set forth below, effective upon publication in the Federal Register. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary APPENDIX Part I of Title 47 of the Code of Federal Regulations is amended to read as follows: 1. The authority citation for Part I continues to read as follows: AUTHORITY: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303. 2. Subsection (h) of section 1.4 is amended by deleting the existing subsection and amending it to read as follows and by adding new Example 12: (h) If a document is required to be served upon other parties by statute or Commission regulation and the document is in fact served by mail (see  1.47(f)), and the filing period for a response is 10 days or less, an additional 3 days (excluding holidays) will be allowed to all parties in the proceeding for filing a response. This paragraph ( 1.4(h)) shall not apply to documents filed pursuant to  1.89,  1.120(d),  1.315(b) or  1.316. For purposes of this subsection service by facsimile shall be deemed equivalent to hand delivery. . . . . Example 12: Assume that oppositions to a petition in a particular proceeding are due 10 days after the petition is filed and must be served on the parties to the proceeding. If the petition is filed on October 28, 1993, the last day of the filing period for oppositions is Sunday, November 7. If service is made by mail, the opposition is due three days after November 7, or Wednesday, November 10. 3. Subsection (i) and subsection (j) of section 1.4 are amended to renumber Examples 12 and 13 as Examples 13 and 14.