********************************************************
NOTICE
********************************************************
This document was converted from
WordPerfect to ASCII Text format.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
WordPerfect version or Adobe Acrobat version, if available.
*****************************************************************
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
) GC Docket No. 97-113
Electronic Filing of Documents )
in Rulemaking Proceedings )
REPORT AND ORDER
Adopted: April 2, 1998 Released: April 6, 1998
By the Commission: Commissioner Tristani dissenting in part and issuing a statement.
I. INTRODUCTION
A In this Order, we amend Parts 0 and 1 of our Rules to allow parties to file comments
and other pleadings electronically via the Internet in FCC informal notice and comment
rulemaking proceedings conducted under section 553 of the Administrative Procedure Act,
except for broadcast allotment proceedings. We will also permit the electronic filing of all
pleadings and comments in proceedings involving petitions for rulemaking (except in broadcast
allotment proceedings) and Notice of Inquiry proceedings (NOIs). We will evaluate the new
rules and assess the operation of the system as we gain experience to determine whether there
is any need to make modifications, and whether it is feasible to expand further the applicability
of the system beyond rulemaking-related proceedings and possibly ultimately to require
electronic filing. The electronic comment filing system (ECFS) is now operational and can be
used to file comments electronically in individual proceedings designated by the Commission.
When the rule changes adopted in this order go into effect, the ECFS may be used for
electronic filing of comments as specified in this order. It is anticipated that the transition to
the ECFS as the official system of record will be completed by July 1998. A Public Notice
will be issued at that time.
II. BACKGROUND
B The electronic comment filing initiative was launched in early 1996, building upon
prior information technology efforts such as the FCC Internet site on the World Wide Web,
. As we described in the Notice, the Commission is committed to
taking advantage of new information technologies to serve the public. The goal of the
initiative is to implement a new ECFS that will replace the Commission's Record Image
Processing System (RIPS) for maintaining public pleadings in rulemaking proceedings. The
ECFS will allow members of the public to file, review, and print documents on-line through
the Internet, rather than having to rely on paper copies accessible through the FCC reference
room or copy contractor. The ECFS will accept electronically filed comments in rulemaking
proceedings; scan in paper documents; and locate, retrieve, download and print any documents
in the system. RIPS data and images from 1992 onward will be transferred to the ECFS, as
urged by one commenter.
C Since the beginning of the ECFS initiative, several Bureaus and Offices have pursued
other electronic filing projects. For example, the Common Carrier Bureau (CCB) has initiated
an electronic tariff filing system, and the Wireless Telecommunications Bureau (WTB) is
implementing a uniform electronic licensing system. Other Bureaus are actively involved in
creating electronic filing systems. Adoption of the rules permitting electronic comment filing
in many rulemaking and related proceedings is yet another step in the Commission's ongoing
efforts to improve the services it provides to the public in the information age and make it
easier for the public to interact with the Commission.
III. DISCUSSION
A. Formal Status of Electronically Filed Comments
D In the Notice, we tentatively concluded that allowing comments to be filed
electronically in all rulemaking proceedings (other than broadcast allotment proceedings)
would serve the public interest. We used the instant rulemaking proceeding as a test of the
ECFS system, and numerous comments were successfully filed using the model. Every
commenting party supported the concept of electronic filing of comments in rulemaking
proceedings. We believe that the electronic transmission of comments to the Commission will
make it easier for the public to participate in our proceedings, encouraging greater and more
diverse public input. This procedure may well reduce the cost of filing comments, because
parties will no longer have to file multiple paper copies and arrange for mailing or messenger
delivery if the party to be served agrees to be served electronically. The ECFS will
automatically catalogue all of the comments, making it easier to review comments. Electronic
comment filing will also make it easier for people with disabilities to participate in our
proceedings. As the National Association of the Deaf (NAD) observed, the deaf and hard of
hearing community relies on the Internet as an important form of communication, and the
various costs and complications of filing comments on paper has often prevented these
individuals from sharing their views with the Commission. Furthermore, this procedure will
allow for the on-line review of comments filed with the Commission by the staff and by the
public. We believe that increased public participation in our decision making process will
allow us to consider a broader range of opinions and input, improving our decision making
process. For all these reasons, we strongly encourage the public to use the ECFS system.
E We note that for now electronic filing procedures will be used in general rulemaking
proceedings. The procedure will not be available for rules of "particular applicability" (e.g.,
tariff investigations) unless the Commission has specifically permitted such filings in those
types of proceedings. Further, electronic filing may be used in general rulemaking
proceedings even when the Commission has dispensed with the use of notice and comment
procedures under the Administrative Procedure Act's exceptions. In such rulemaking
proceedings, electronic filing could be used for petitions for reconsideration, for example.
F The choice of the Internet as the filing mechanism generally was supported by the
commenting parties, although some commenters questioned whether bandwidth limitations
might affect the use of the Internet. Bandwidth is not an issue here because documents will
be transmitted to us electronically and even large documents will not be of a size to hamper
downloading. The National Council on Disability (NCD) urged that we ensure that those not
skilled in the Internet be able to use the system, and our technical staff is working to ensure
that the public easily be able to gain access to and use the ECFS. Some commenters made
specific suggestions for the electronic filing interface and recommended that changes to the
"quickstart" interface be made available for public testing. We are reviewing these
suggestions and the final ECFS instructions will explain the Commission's interface choices.
Input from the public and FCC staff on the ECFS interface is important, and we will
implement periodic reviews to consider changes to the system in the future.
G Some commenters express concern that the FCC will develop multiple incompatible
electronic filing systems. All FCC electronic filing systems are accessible through an
"electronic filing" link on the FCC home page, as well as links on Bureau World Wide Web
pages. However, in some instances, it may be necessary to utilize different types of filing
systems. For example, tariffs have specific legal and technical requirements not applicable to
rulemaking comments that may necessitate a different filing system. In any event,
Commission employees meet regularly to coordinate electronic filing efforts to ensure the
Commission's electronic filing systems are not incompatible.
H As we have noted, we strongly encourage the public to utilize the ECFS system to file
comments electronically. However, the public may continue to file comments by traditional
means, on paper. We will treat comments filed on paper and comments filed electronically
the same. If a party files its comments electronically, there is no need to file a paper version
of the document, and we discourage parties from filing both electronically and on paper. If
both electronic and paper versions are filed, we will treat the electronic version as the original,
official copy, and one paper copy should be filed. As we observed in the Notice, electronic
comments that are received before the applicable deadline and meet the necessary formalities
will be treated as formal filings, and comments that are received after the deadlines, or that
fail to meet the necessary formalities, will be treated as informal or ex parte filings.
I The amended rules are set forth in Appendix B. As suggested by some commenting
parties, and as explained in this decision, we will monitor this initiative and make such
adjustments as experience dictates.
B. Extension to Other Related Proceedings.
J The Notice proposed only to permit electronic filing of comments, reply comments,
and other documents filed in notice and comment rulemaking proceedings (other than
broadcast allotment proceedings) prior to the applicable deadline. We asked for comments on
whether electronic filing should be used for other pleadings and proceedings. We agree with
commenters that electronic filing should be permitted for petitions for rulemaking (except in
broadcast allotment proceedings), pleadings in NOIs, and petitions for reconsideration and all
responsive pleadings in the foregoing proceedings and rulemaking proceedings (except
broadcast allotment proceedings). We see no reason to phase in these additions to our
electronic comment filing initiative over time. We will amend our rules accordingly. In the
future, after the Commission and the public has had experience with the ECFS system, we
anticipate adding other types of pleadings and documents to the electronic filing system and
moving toward an all-electronic filing system.
K In the Notice, we observed that if we extended the ECFS to proceedings other than
rulemaking proceedings, we might have to amend the signature rule, 47 C.F.R. 1.52, which
requires that "[t]he original of all petitions, motions, pleadings, briefs, and other documents
filed" by counsel or by any party not represented by counsel must be signed. For example,
in rulemaking proceedings, petitions for reconsideration, oppositions, and replies must
conform to section 1.52. One commenter asserted that filing electronically results in the lack
of a traceable signature. The only other parties commenting on this question simply referred
to electronic signatures as part of their discussion of security measures.
L Sections 1.743(e) and 1.913(e) of our rules currently permit electronic signatures for
applications submitted to CCB and WTB, respectively. Under these rules, "the signature on
an electronically filed application will consist of the electronic equivalent of the typed name of
the individual." We believe these procedures can be applied to documents filed electronically
through the ECFS, and we will amend section 1.52 of our rules to define electronic signatures
similarly for documents filed in this manner.
M SBC Communications, Inc., et al. (SBC), suggested that we permit the electronic filing
of notices of ex parte contacts, and Bell Atlantic/NYNEX asked that we accept electronically
filed ex parte comments. We agree that the ECFS can be used for summaries of permissible
ex parte presentations in rulemaking proceedings (except broadcast allotment proceedings). If
a party is filing a notice for the record summarizing an oral ex parte meeting in a permit-but-
disclose rulemaking, it may do so electronically or on paper. In proceedings in which
electronic filing is permitted, paper filings will also be scanned into the system. The
summaries of ex parte presentations will be available to all Commissioners and Commission
staff via the FCC's Intranet. In addition, the ECFS will, on a daily basis, generate a listing of
all documents filed electronically or scanned into the ECFS which will be provided to the
Commissioners, Bureaus, and Offices. Thus, Commission employees involved in oral ex parte
presentations will receive notice of or and have immediate access to copies of the summaries of
oral ex parte presentations. In view of this, in proceedings in which electronic filing is
permitted, we are modifying the current requirement in Section 1.1206(b)(2) of our rules that
persons making oral ex parte presentations must submit copies of the summary of the
presentation to the Commissioner or Commission employee involved in the oral presentation.
Written ex parte presentations in these proceedings can be filed electronically, or, if filed on
paper, will be scanned into the system by Commission personnel. We note that we are
permitting electronic filings in NOIs and petition for rulemaking proceedings (except broadcast
allotment proceedings). These proceedings are exempt for purposes of ex parte filing rules.
In addition, ex parte comments will be able to be filed electronically in these proceedings, as
Bell Atlantic/NYNEX suggests. We will reassess the electronic filing of summaries of ex
parte presentations as we gain more experience with the ECFS system.
C. Implementation Issues
N Security. In the Notice we proposed not to require any special security measures for
electronically filed comments. The FCC's Internet servers are protected by a "firewall" that
prevents outside users from gaining access to our internal data. The ECFS has been designed
to work with the firewall to keep the master database of comments secure. The parties were
divided as to the need for security measures. The main concern expressed is that someone
could file a bogus comment, pretending to be another party. Parties concerned about security
suggested security measures such as use of an ID number system, so that all users would have
to register and receive a password before they could file comments with the Commission.
O Security measures make it more difficult for members of the public to use electronic
filing. A major goal of the ECFS is to make it easier to file information with, and retrieve
information from, the FCC. Unlike specialized FCC activities, rulemakings are open to all
members of the public. Currently, we have no special security checks for paper filings.
Anyone could mail or hand-deliver a set of paper comments claiming to be a certain party, and
the Commission would have to rely on the real party to identify the "imposter" comments.
The same standards should work just as well for electronic comments. We also note that in
proceedings in which electronic filing has been permitted thus far, we have encountered no
problems.
P Some parties commented that the ECFS may encourage abusive or frivolous filings.
In the Notice, we observed that we have adequate measures in place to deal with such
situations. We will not take further steps at this time, because we agree with commenting
parties that such instances can be addressed on a case-by-case basis.
Q Some parties suggested that we address issues arising from mass filings of electronic
mail comments. In several instances we have had literally hundreds of thousands of
electronic mail comments filed. The record in this proceeding does not permit us to consider
various methodologies for handling mass electronic mail comments, and we will consider
implementing a proceeding to consider this issue.
R Submission of materials through the ECFS will post them to the World Wide Web.
Ameritech and SBC questioned how confidential materials will be handled in the ECFS
system. We anticipate that parties submitting such materials (either those presumptively
confidential or those for which the party seeks confidentiality) will continue to do so on
paper. It is administratively difficult to deal with confidentiality requests in the rulemaking
context because of the large number of parties typically involved.
1. Filing Deadline Issues. In the Notice we proposed, at least initially, to keep the
same filing deadline (5:30 p.m. eastern time) for electronic comments as we currently have for
paper comments. Some commenters agree that we should retain the status quo. Other
commenters suggested that because the ECFS will be accessible 24 hours a day through the
Internet, the filing deadline should be pushed back until midnight. Other parties indicated
that the date and time electronic comments are received by the Commission, whenever that
occurred, should govern, that is, comments would be received at all times but if received
after 5:30 p.m. on a business day, would be deemed to be filed the next business day.
Electronic filing makes it technically possible for us to extend our filing deadline later in the
day, and we wish to encourage electronic filing. We will therefore permit electronic
comments filed via the ECFS to be made until midnight of the date due. Our rules will be
amended accordingly.
S Some parties encourage the Commission to include a time stamp mechanism so that the
filing date of each comment can be confirmed. This function has already been built into the
ECFS, along with automatic notification to the commenter of the official filing date and time.
T A number of commenting parties expressed concern that technical problems with the
ECFS or the Commission's Internet connection, as well as congestion if too many parties
attempt to submit their comments at the last possible moment before the deadline, could lead to
many comments being received late. Some of these parties suggest a streamlined process for
granting extensions in such cases.
We will amend our rules (47 C.F.R. 0.231(i)) to delegate to the Secretary authority to grant
requests for extensions of time based on operational or congestion problems in appropriate
circumstances. We will reassess these procedures after we have had some experience to
determine whether congestion and outages are likely to be a significant problem.
U Formatting and Copy Issues. Commenters raised a number of formatting issues in
response to our request for comments concerning the number of copies to be filed, page
numbering, file formats, citation form, and service on Commissioners, Bureaus, and Offices.
V Multiple browsers. A "quickstart" version of the ECFS was been available for public
testing in selected dockets for several months. Because an earlier version of Microsoft Internet
Explorer did not support a specific technical feature necessary for uploading files into the
FCC's database system, the quickstart system only allowed uploading using Netscape
Navigator. Several parties expressed concern about the system being limited to one company's
Internet browser. Microsoft has since added the necessary feature in the current version of
Internet Explorer (4.0), which is free to the public, so the final ECFS implementation will
support both the major browsers. We anticipate that other browsers will be able to use the
system, and will work to include necessary features as needed. Documentation for the ECFS
will provide users with additional information on compatible software.
W Electronic formats. Several commenting parties expressed concern about the format of
documents submitted electronically. The ECFS has been designed to accept filings created in
the following major word processing formats -- Microsoft Word, WordPerfect, Adobe
Acrobat, and ASCII text -- as well as Microsoft Excel for spreadsheets. These formats
represent the overwhelming majority of the market today, and virtually every other word
processor will export files in these formats. For viewing and printing, the ECFS will
automatically convert files into Adobe Acrobat Portable Document Format (PDF) so that users
can access the formatted files even if they do not have the word processor used to create the
document. The ECFS documentation and on-line help will specify the acceptable formats.
We encourage electronic filers to utilize sufficiently large fonts to ensure ease of reading
documents. Over time, as users' needs change and technology advances, we will consider
adding additional file formats if technically feasible.
X Bell Atlantic/NYNEX and U S West expressed concern about filing non-electronic
attachments to electronic filings. Should this occur, the non-electronic filing should be filed
the same day as the electronic filing. We encourage parties to scan their attachments as PDF
files and submit them electronically. If parties cannot do so, we will attempt to scan the non-
electronic portion of the filing into the ECFS. If it is not possible to scan the materials, the
party submitting such material should reference it in the pleading and the materials will be
included in the record.
Y We agree with SBC that documents filed electronically should be self-contained. No
hyperlinks to other sites on the Internet will be permitted in electronically-filed documents. To
allow hyperlinks would permit parties to expand, perhaps endlessly, the materials submitted to
us for consideration. It also could conceivably result in linkage to inappropriate sites. We
will, however, consider this issue as part of our evaluation of the ECFS.
Z We sought comment in the Notice as to whether we should permit the use of other
filing media such as CD-ROMs and bulletin board systems. Commenters generally supported
adoption of alternative media, although this option was not without objection. We prefer
that parties utilize the ECFS system, but paper filings can continue to be made accompanied by
diskettes. As the system matures, we will consider whether a bulletin board system should be
added and whether acceptance of CD-ROM is advisable.
AA Page limits. In response to our inquiry about whether we need to adjust our rules
concerning page limits, some commenting parties observed that the number of pages is a less
relevant measure when documents are filed electronically. Therefore, some parties suggest
that if the Commission imposes page limits on filings, it should express them in terms of other
measures such as file size or word count. The ECFS is designed to convert automatically all
filings into Adobe Acrobat (PDF) format. PDF preserves document formatting and pagination
when viewed on different systems, although in some cases there may be slight differences
between the paper and on-line version. Because there may be deviations from the paper and
on-line versions, a word limit makes sense, since all major word processors include a word
count feature. Also, this measurement is more consistent than file size, which may vary with
the word processor and may change during electronic transmission. One double-spaced page is
roughly 250 words. Therefore, we will modify our rules to allow either a maximum number
of pages or a maximum number of words (calculated at 250 words per page).
BB Paragraph numbering. Several commenters suggest that we mandate paragraph
numbering in comments filed electronically because pagination may change when comments
are viewed on different systems and with different fonts. On the other hand, as we observed
previously in this decision, the ECFS is designed to convert documents into PDF format,
which generally preserves formatting and pagination. Additionally, paragraph numbers would
make it easier for FCC staff to reference specific arguments in comments, especially when
filed electronically, and therefore it would make sense to ask parties to include them in all
comments. For this reason, we encourage parties filing on paper to number their paragraphs.
However, we will not require paragraph numbering and failure to include paragraph numbers
will not be a reason for us to disregard a comment.
CC Number of electronic copies. The Notice proposed that instead of the current
requirement that parties file five paper copies of formal comments, only one electronic copy be
required. Because electronic submissions will be available simultaneously to the staff via the
FCC Intranet, there is no need for filing multiple copies. Only one official copy of an
electronic filing is necessary, unless the Commission has specified that additional electronic
copies must be filed, and we will amend our rules accordingly. Commission staff will handle
internal distribution of documents if such distribution is required. However, we do not
anticipate this will be necessary because the ECFS provides all Commission staff, including
the Commissioners, with almost immediate access to pleadings filed electronically. As we
previously noted, the ECFS will also generate on a daily basis a listing of documents filed
electronically with or scanned into the system. This listing will be distributed to all
Commissioners, Bureaus, and Offices. The ECFS thus makes it unnecessary for parties to
provide courtesy copies of pleadings directly to Commissioners, Bureaus, and Offices.
Although we will not prohibit courtesy filings, we strongly discourage the filing of excessive
copies of documents. If a party wishes to make the additional effort and expenditure of
providing one courtesy copy of a pleading directly to a Commissioner, Bureau, or Office, they
may do so. Courtesy copies, however, may only be provided on paper. Parties must mark
such copies "Courtesy Copy" on the title page to avoid confusion as to whether a document is
an original or copy. We will continue regularly to reassess our internal distribution methods
as we gain more experience with this system.
DD Availability of copies. The ECFS was designed to allow an FCC staff person to verify
comments after they have been filed electronically and before they are made available for
viewing and downloading by the public through the Internet. This intermediate step is
designed to ensure that parties have provided essential information, such as the docket number.
Paper documents must still be scanned into the system, as with the current RIPS system, which
will take slightly longer for them to be available electronically. In addition, determinations
may need to be made as to whether a pleading is late filed, ex parte, confidential
correspondence, or filed within the Sunshine Period. Other than these processing steps,
electronically-submitted comments can be made available to the public immediately after
filing. It seems reasonable to commit to having comments available on-line through the FCC's
World Wide Web site for downloading the day after the filing deadline (except materials that
must be scanned into the ECFS or in extraordinary cases), and we will endeavor to do so.
Some parties ask that comments be available from the Commission's copy contractor by 8:30
a.m. following the filing deadline. This would seem to be an overly stringent standard. The
copy contractor will receive an electronic mail notification list of all filings at the same time as
the Bureaus and copies will be available as soon as they are processed by the Secretary's
Office.
EE Electronic Service. In some cases, parties must serve copies of their filings on all
other participants in a proceeding. Specifically, in rulemaking proceedings, oppositions to
petitions for reconsideration and replies to such oppositions must be served on certain parties.
The Notice proposed that, even when comments were filed electronically with the FCC,
service on other parties would have to be on paper unless those parties stated that they would
accept electronic service. Commenters generally agreed. A party must agree to accept
electronic service at their premises before service may be accomplished in that manner. We
are exploring adding a field on the ECFS to allow parties to check whether they will accept
electronic service. In the meantime, parties should indicate their willingness to accept
electronic filing in their pleadings. We may explore other approaches in the future, but it is
important to gain experience with the practice of electronic filing before attempting to do so.
FF Bell Atlantic/NYNEX urges that when a party has agreed to electronic service of a
document, the three-day mailing rule for computation of time purposes is inappropriate. We
agree. When parties agree to electronic service, service in that manner will be considered the
same as facsimile service. We will amend the rule accordingly.
D. Final Regulatory Flexibility Act Certification.
1. In the Notice, we certified that the proposed rules "[would] not, if promulgated,
have a significant economic impact on a substantial number of small entities." No comments
were received concerning this certification. Our purpose in granting electronically filed
comments comparable legal treatment to comments filed on paper is to simplify and clarify the
existing rules, and to give parties additional options for filing comments. The modifications
do not impose any additional compliance burden on persons dealing with the Commission,
including small entities. All parties will still be permitted to file comments on paper, exactly
as they do today. We anticipate that the revisions we adopt here will make it somewhat easier
for small entities as well as others that wish to file and review comments electronically to do
so. Accordingly, we certify that the rules will not have a significant economic impact on a
substantial number of small entities. In addition, the Office of Public Affairs, Reference
Operations Division, shall send a copy of this Report and Order, including this certification, to
the Chief Counsel for Advocacy of the Small Business Administration. A copy of this
certification will also be published in the Federal Register.
IV. CONCLUSION
2. We believe that allowing parties to file comments and all other pleadings and
submissions (including ex parte submissions) electronically in FCC notice and comment
rulemaking proceedings (other than broadcast allotments), NOIs, and petition for rulemaking
proceedings (other than in broadcast allotment proceedings), will enhance the public's ability
to participate in our proceedings and will serve the public interest. We amend our rules
accordingly.
V. ORDERING CLAUSES
3. Accordingly, IT IS ORDERED that pursuant to sections 4(i), 4(j), and 303(r) of
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), and 303(r), Parts
0 and 1 of the Commission's Rules are AMENDED as set forth in the Appendix.
4. IT IS FURTHER ORDERED that the Commission's Office of Public Affairs,
Reference Operations Division, SHALL SEND a copy of this Report and Order, including the
Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small
Business Administration.
5. IT IS FURTHER ORDERED that the rules adopted herein ARE EFFECTIVE
[60 days after publication in the Federal Register].
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary APPENDIX A
Parties Filing Comments:
Edgewood Senior High School Student Council (Edgewood)
National Exchange Carrier Association, Inc. (NECA)
Federal Communications Bar Association (FCBA)
BellSouth Corporation and BellSouth Telecommunications, Inc. (BellSouth)
Personal Communications Industry Association (PCIA)
Bell Atlantic/NYNEX
National Telephone Cooperative Association (NTCA)
Sprint Corporation (Sprint)
U S West, Inc. (U S West)
Consumer Electronics Manufacturers Association (CEMA)
Law Offices of Henry E. Crawford (Crawford)
National Council on Disability (NCD)
GTE Service Corporation (GTE)
Ameritech (Ameritech)
Ohio Consumers' Counsel (OCC)
AT&T Corp. (AT&T)
David B. Popkin (Popkin)
New Signals Press, Inc. (New Signals)
Eric J. White (White)
SBC Communications, Inc., Southwestern Bell Telephone Company, Pacific Bell
and Nevada Bell (SBC)
Cincinnati Bell Telephone Company (CBT)
Parties Filing Reply Comments:
National Association of the Deaf (NAD)
Law Offices of Henry E. Crawford (Crawford)
AT&T Corporation (AT&T)
GTE Service Corporation (GTE) APPENDIX B
AMENDMENT TO RULES(AMENDED SECTIONS HIGHLIGHTED)
Part 0 of Title 47 of the Code of Federal Regulations is amended as follows:
Part 0 -- COMMISSION ORGANIZATION
1. The authority citation for Part 0 continues to read as follows:
AUTHORITY: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, unless otherwise
noted.
47 CFR Part 0 is amended to read as follows:
2. Section 0.231 is amended by revising paragraph (i) to read as follows:
0.231 Authority Delegated
* * * * *
(i) The Secretary, acting under the supervision of the Managing Director, serves as
the official custodian of the Commission's documents and shall have authority to appoint a
deputy or deputies for the purposes of custody and certification of documents located in
Gettysburg, Pennsylvania or other established locations. The Secretary is delegated
authority to rule on requests for extensions of time based on operational problems
associated with the Commission's electronic comment filing system. See 1.46.
3. Section 0.401 is amended by adding (a)(1)(iii) to read as follows:
0.401 Location of Commission Offices.
* * * * *
(iii) Electronic filings, where permitted, must be transmitted as specified by the
Commission or relevant Bureau or Office.
* * * * *
Part 1 of Title 47 of the Code of Federal Regulations is amended as follows:
Part 1 -- PRACTICE AND PROCEDURE
4. The authority citation for Part 1 continues to read as follows:
AUTHORITY: 47 U.S.C. 151, 154, 207, 303 and 309(j) unless otherwise noted.
47 CFR Part 1 is amended to read as follows:
5. Section 1.4 is amended by revising paragraphs (f) and (h) to read as follows:
1.4 Computation of Time
* * * * *
(f) Except as provided in 0.401(b) of the Rules, all petitions, pleadings, tariffs or
other documents not required to be accompanies by a fee and which are hand-delivered must
be tendered for filing in complete form before 5:30 p.m. in the Office of the Secretary, wither
in Washington or Gettysburg, as directed by the Rules. The Secretary will determine whether
a tendered document meets the pre-5:30 deadline. Documents filed electronically pursuant
to 1.49(f) of the Rules must be received by the Commission's electronic comment filing
system before midnight.
(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 paragraph service by facsimile or by electronic means shall be deemed
equivalent to hand delivery.
6. Section 1.46 is amended by revising paragraphs (b) and (c) to read as follows:
1.46 Motions for extension of time.
* * * * *
(b) Motions for extension of time in which to file responses to petitions for
rulemaking, replies to such responses, comments filed in response to notice of proposed
rulemaking, replies to such comments and other filings in rulemaking proceedings conducted
under Subpart C of this part shall be filed at least 7 days before the filing date. If a timely
motion is denied, the responses and comments, replies thereto, or other filings need not be
filed until 2 business days after the Commission acts on the motion. In emergency situations,
the Commission will consider a late-filed motion for a brief extension of time related to the
duration of the emergency and will consider motions for acceptance of comments, reply
comments or other filings made after the filing date.
* * * * *
(c) If a motion for extension of time in which to make filings in proceedings other
than notice and comment rule making proceedings is filed less than 7 days prior to the filing
day, the party filing the motion shall (in addition to serving the motion on other parties) orally
notify other parties and Commission staff personnel responsible for acting on the motion that
the motion has been (or is being) filed.
* * * * *
7. Section 1.47 is amended by revising paragraph (d) to read as follows:
1.47 Service of documents and proof of service.
(d) Documents may be served upon a party, its attorney, or other duly constituted
agent by delivering a copy or by mailing a copy to the last known address. When a party is
represented by an attorney of record in a formal proceeding, service shall be made upon such
attorney. Documents that are required to be served must be served in paper form, even if
documents are filed in electronic form with the Commission, unless the party to be served
agrees to accept service in some other form.
* * * * *
8. Section 1.49 is amended by revising paragraph (a) and adding new paragraph (f)
to read as follows:
1.49 Specifications as to pleadings and documents.
(a) All pleadings and documents filed in paper form in any Commission proceeding
shall be typewritten or prepared by mechanical processing methods, and shall be filed on A4
(21 cm. x 29.7 cm.) or on 8 1/2 x 11 inch (21.6 cm. x 27.9 cm.) paper with the margins set
so that the printed material does not exceed 6 1/2 x 9 1/2 inches (16.5 cm. x 24.1 cm.). The
printed material may be in any typeface of at least 12-point (0.42333 cm. or 12/72 ") in
height. The body of the text must be double spaced with a minimum distance of 7/32 of an
inch (0.5556 cm.) between each line of text. Footnotes and long, indented quotations may be
single spaced, but must be in type that is 12-point or larger in height, with at least 1/16 of an
inch (0.158 cm.) between each line of text. Counsel are cautioned against employing extended
single spaced passages or excessive footnotes to evade prescribed pleading lengths. If
single-spaced passages or footnotes are used in this manner the pleading will, at the discretion
of the Commission, either be rejected as unacceptable for filing or dismissed with leave to be
refiled in proper form. Pleadings may be printed on both sides of the paper. Pleadings that
use only one side of the paper shall be stapled, or otherwise bound, in the upper left-hand
corner; those using both sides of the paper shall be stapled twice, or otherwise bound, along
the left-hand margin so that it opens like a book. The foregoing shall not apply to printed
briefs specifically requested by the Commission, official publications, charted or maps,
original documents (or admissible copies thereof) offered as exhibits, specially prepared
exhibits, or if otherwise specifically provided. All copies shall be clearly legible.
* * * * *
(f) In the following types of proceedings, all pleadings, including permissible ex
parte submissions, notices of ex parte presentations, comments, reply comments, and
petitions for reconsideration and replies thereto, may be filed in electronic format: (i)
general rulemaking proceedings other than broadcast allotment proceedings; (ii) notice of
inquiry proceedings; and (iii) petition for rulemaking proceedings (except broadcast
allotment proceedings). For purposes of section (b) and (c) of this section, and any
prescribed pleading lengths, the length of any document filed in electronic form shall be
equal to the length of the document if printed out and formatted according to the
specifications of section (a) of this section, or shall be no more that 250 words per page.
9. Section 1.51 is amended by changing paragraph (e) to read as follows:
1.51 Numbers of copies of pleadings, briefs and other papers.
* * * * *
(e) The parties to any proceeding may, on notice, be required to file additional
copies of any or all filings made in that proceeding.
10. Section 1.52 is amended to read as follows:
1.52 Subscription and verification.
The original of all petitions, motions, pleadings, briefs, and other documents filed by
any party represented by counsel shall be signed by at least one attorney of record in his
individual name, whose address shall be stated. A party who is not represented by an attorney
shall sign and verify the document and state his address. Either the original document, or an
electronic reproduction of such original document containing the facsimile signature of the
attorney or unrepresented party is acceptable for filing. If a facsimile copy of a document is
filed, the signatory shall retain the original until the Commission's decision is final and no
longer subject to judicial review. If pursuant to 1.429(h) a document is filed
electronically, a signature will be considered any symbol executed or adopted by the
party with the intent that such symbol be a signature, including symbols formed by
computer-generated electronic impulses. Except when otherwise specifically provided by
rule or statute, documents signed by the attorney for a party need not be verified or
accompanied by affidavit. The signature or electronic reproduction thereof by an attorney
constitutes a certificate by him that he has read the document; that to the best of his
knowledge, information, and belief there is good ground to support it; and that it is not
interposed for delay. If the original of a document is not signed or is signed with intent to
defeat the purpose of this section, or an electronic reproduction does not contain a facsimile
signature, it may be stricken as sham and false, and the matter may proceed as though the
document had not been filed. An attorney may be subjected to appropriate disciplinary action,
pursuant to 1.24, for a willful violation of this rule or if scandalous or indecent matter is
inserted.
11. Section 1.401 is amended by changing paragraph (b) to read as follows:
* * * * *
(b) The petition for rulemaking shall conform to the requirements of 1.49, 1.52
and 1.419(b) (or 1.420(e), if applicable), and shall be submitted or addressed to the
Secretary, Federal Communications Commission, Washington, DC 20554, or (except in
broadcast allotment proceedings) may be submitted electronically.
12. Section 1.403 is amended to read as follows:
1.403 Notice and availability
All petitions for rule making (other than petitions to amend the FM, Television, and
Air-Ground Tables of Assignments) meeting the requirements of s 1.401 will be given a file
number and, promptly thereafter, a "Public Notice" will be issued (by means of a Commission
release entitled "Petitions for Rule Making Filed") as to the petition, file number, nature of the
proposal, and date of filing. Petitions for rule making are available at the Commission's
Dockets Reference Center (1919 M Street NW., Room 239, Washington, DC), and may also
be available electronically over the Internet at .
13. Section 1.419 is amended by adding a new paragraphs (d) and (e) to read as
follows:
1.419 Form of comments and replies; number of copies.
* * * * *
(d) Participants that file comments and replies in electronic form need only
submit one copy of those comments, so long as the submission conforms to any
procedural or filing requirements established for formal electronic comments.
(e) Comments and replies filed in electronic form by a party represented by an
attorney shall include the name, street address, and telephone number of at least one
attorney of record. Parties not represented by an attorney that file comments and replies
in electronic form shall provide their name, street address, and telephone number.
* * * * *
14. Section 1.429 is amended by changing paragraphs (d), (e), (f), (g) and (h) to
read as follows:
1.429 Petitions for reconsideration
* * * * *
(d) The petition for reconsideration and any supplement thereto shall be filed within 30
days from the date of public notice of such action, as that date is defined in s 1.4(b) of these
rules. No supplement to a petition for reconsideration filed after expiration of the 30 day
period will be considered, except upon leave granted pursuant to a separate pleading stating the
grounds for acceptance of the supplement. The petition for reconsideration shall not exceed 25
double-spaced typewritten pages. See also 1.49(f).
(e) Except as provided in 1.420(f), petitions for reconsideration need not be served on
parties to the proceeding. (However, where the number of parties is relatively small, the
Commission encourages the service of petitions for reconsideration and other pleadings, and
agreements among parties to exchange copies of pleadings. See also 1.47(d) regarding
electronic service of documents.) When a petition for reconsideration is timely filed in
proper form, public notice of its filing is published in the Federal Register. The time for filing
oppositions to the petition runs from the date of public notice. See 1.4(b).
(f) Oppositions to a petition for reconsideration shall be filed within 15 days after the
date of public notice of the petition's filing and need be served only on the person who filed
the petition. See also 1.49(d). Oppositions shall not exceed 25 double-spaced typewritten
pages. See 1.49(f).
(g) Replies to an opposition shall be filed within 10 days after the time for filing
oppositions has expired and need be served only on the person who filed the opposition.
Replies shall not exceed 10 double-spaced typewritten pages. See also 1.49(d) and
1.49(f).
(h) Petitions for reconsideration, oppositions and replies shall conform to the
requirements of 1.49 and 1.52, except that they need not be verified. Except as provided in
1.420(e), an original and 11 copies shall be submitted to the Secretary, Federal
Communications Commission, Washington, D.C. 20554. Parties filing in electronic form
need only submit one copy.
15. Section 1.1206 is amended by changing paragraphs (b)(1) and (b)(2) to read as
follows:
1.1206 Permit-but-disclose proceedings.
* * * * *
(b) The following disclosure requirements apply to ex parte presentations in permit but
disclose proceedings:
(1) Written presentations. A person who makes a written ex parte presentation subject
to this section shall, no later than the next business day after the presentation, submit two
copies of the presentation to the Commission's secretary under separate cover for inclusion in
the public record. The presentation (and cover letter) shall clearly identify the proceeding to
which it relates, including the docket number, if any, shall indicate that two copies have been
submitted to the Secretary, and must be labeled as an ex parte presentation. If the presentation
relates to more than one proceeding, two copies shall be filed for each proceeding.
Alternatively, in rulemaking proceedings governed by 1.49(f), the person making the
presentation may file one copy of the presentation electronically; no additional paper
copies need to be filed.
(2) Oral presentations. A person who makes an oral ex parte presentation subject to
this section that presents data or arguments not already reflected in that person's written
comments, memoranda or other filings in that proceeding shall, no later than the next business
day after the presentation, submit to the Commission's Secretary, an original and one copy of
a memorandum which summarizes the new data or arguments. Except in proceedings subject
to 1.49(f) in which pleadings are filed electronically, a copy of the memorandum must
also be submitted to the Commissioners or Commission employees involved in the oral
presentation. In proceedings governed by 1.49(f), the person making the presentation
may, alternatively, electronically file one copy of the memorandum, which will be
available to Commissioners and Commission employees involved in the presentation
through the Commission's electronic comment filing system. Memoranda must contain a
summary of the substance of the ex parte presentation and not merely a listing of the subjects
discussed. More than a one or two sentence description of the views and arguments presented
is generally required. The memorandum (and cover letter) shall clearly identify the
proceeding to which it relates, including the docket number, if any, shall indicate that an
original and one copy have been submitted to the Secretary or that one copy has been filed
electronically, and must be labeled as an ex parte presentation. If the presentation relates to
more than one proceeding, two copies of the memorandum (or an original and one copy) shall
be filed for each proceeding.
* * * * *
PARTIAL DISSENT OF COMMISSIONER GLORIA TRISTANI
In the Matter of Electronic Filing of Documents in Rulemaking Proceedings
(GC Docket No. 97-113)
I strongly support the thrust of today's action to permit parties to file documents with
the Commission electronically. Electronic filing should make our processes more open and
accessible and enhance the public's ability to actively participate in rulemaking proceedings.
There is one aspect of today's Order, however, that I cannot support. The Order
establishes a midnight deadline for electronic filings rather than the 5:30 p.m. deadline that
applies to paper filings. This six and a half hour extension will give electronic filers an
advantage over paper filers. Indeed, the Order (at para. 19) states that it is adopting a
midnight deadline because it "wish[es] to encourage electronic filing." To the extent that a
midnight deadline provides an incentive for parties to file electronically who otherwise would
file on paper, the extra filing time must provide them with a clear benefit.
Moreover, the advantage for electronic filers could be far more substantial than simply
the additional time involved. Under current Commission practice, paper filers may provide
courtesy copies to ITS, the Commission's transcription service, when they file with the
Secretary's office. Outside parties can obtain copies of these documents from ITS that same
evening. Also, it is not uncommon (at least it has not been up to now) for parties to serve
courtesy copies directly on other parties at the time they file their comments with the
Commission. Thus, it is quite possible that electronic filers will be able to obtain copies of
paper filings by early evening and incorporate responses by the midnight deadline.
Essentially, this would give electronic filers an additional reply opportunity, permitting them
to address arguments raised by the paper filers that they had not anticipated.
Were electronic filing an option available to everyone, these concerns may not be
significant. But millions of Americans do not have Internet access. These are the people who
will be most disadvantaged by the midnight filing deadline. Meanwhile, those with the
resources to file electronically, and especially those Washington insiders who know how to
quickly obtain copies of paper filings, will be the biggest winners. It is already difficult
enough for average citizens to make their voices heard at the Commission. I believe that
today's decision establishing different deadlines for electronic and paper filings only increases
that difficulty. I therefore dissent from this aspect of the Order.