§ 409. — Hearings.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 47USC409]
TITLE 47--TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
CHAPTER 5--WIRE OR RADIO COMMUNICATION
SUBCHAPTER IV--PROCEDURAL AND ADMINISTRATIVE PROVISIONS
Sec. 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 imperatively
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
consideration 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 authority 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.
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\1\ See References in Text note below.
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(c) Notice and opportunity for participation by parties; applicability
of administrative procedure 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 preparation for presentation
of such case at the hearing or upon review shall (except to the extent
required 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 Commission, or to any
authority within the Commission 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
licenses, 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 provisions
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 documents; fees and mileage
For the purposes of this chapter the Commission 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.
Witnesses 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 enforcement of orders
Such attendance of witnesses, and the production of such documentary
evidence, may be required 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 Commission, 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 provisions 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 requiring 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 thereof.
(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 proceeding is at issue on
petition and answer. The Commission may also order testimony to be taken
by deposition in any proceeding or investigation 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 magistrate judge, or any clerk of a district court, or 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 common
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. Reasonable 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 request) to testify the whole truth, and
shall be carefully examined. His testimony shall be reduced to writing
by the magistrate taking the deposition, or under his direction, and
shall, after it has been reduced to writing, be subscribed by the
deponent.
(j) Foreign depositions
If a witness whose testimony may be desired to be taken by
deposition be in a foreign country, the deposition may be taken before
an officer 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 authorized 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, Sec. 242, Oct. 15, 1970, 84
Stat. 930
(m) Penalties
Any person who shall neglect or refuse to attend and testify, or to
answer any lawful inquiry, or to produce books, papers, schedules of
charges, contracts, agreements, and documents, if in his power to do so,
in obedience to the subpena or lawful requirement of the Commission,
shall be guilty of a misdemeanor and upon conviction thereof by a court
of competent jurisdiction 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, Sec. 409, 48 Stat. 1096; July 16,
1952, ch. 879, Sec. 16, 66 Stat. 721; Pub. L. 87-192, Sec. 4, Aug. 31,
1961, 75 Stat. 422; Pub. L. 90-578, title IV, Sec. 402(b)(2), Oct. 17,
1968, 82 Stat. 1118; Pub. L. 91-452, title II, Sec. 242, Oct. 15, 1970,
84 Stat. 930; Pub. L. 101-650, title III, Sec. 321, Dec. 1, 1990, 104
Stat. 5117.)
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, Sec. 105(b), Sept. 13, 1982, 96 Stat. 1091.
Codification
In subsecs. (a), (b), and (c)(1), ``adjudication (as defined in
section 551 of title 5)'' substituted for ``adjudication (as defined in
the Administrative Procedure Act)'', in subsec. (c)(2) ``section 554(d)
of title 5'' substituted for ``subsection (c) of section 5 of the
Administrative 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, Sec. 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 recommended decisions, for provision relating to assignment
of cases to examiners.
Subsec. (b). Pub. L. 87-192 provided for filing of memoranda in
support of exceptions to initial, tentative, or recommended decisions,
to be passed upon by the Commission or the designated authority within
the Commission, and eliminated provisions for oral argument 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
findings, 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 presentation 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 provisions for separation of functions
of examiners from the investigative and prosecutory functions of persons
engaged 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
recommendations, prohibition against members of Office of The General
Counsel, Office of the Chief Engineer or the Office of the Chief
Accountant from making any presentations respecting a case, and
prohibition against persons engaged in performance of investigative or
prosecuting functions for the Commission from consulting in any case of
adjudication.
Subsec. (d). Pub. L. 87-192 inserted references to section 155(d) of
this title.
1952--Act July 16, 1952, amended section generally, inserting
subsecs. (a) to (d) and redesignating former subsecs. (b) to (j) as (e)
to (m), respectively.
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
Procedure. Previously, ``United States magistrate'' substituted for
``United States commissioner'' pursuant to Pub. L. 90-578. See chapter
43 (Sec. 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 immunity to which any individual is
entitled under this section 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
Section 5 of Pub. L. 87-192 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 section
409 of the Communications Act of 1934 [subsec. (b) of this section]
(which relates to the filing of exceptions 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 Administrative Procedure Act) [see
sections 551 et seq. and 701 et seq. of Title 5, Government Organization
and Employees] designated by the Federal Communications Commission for
hearing by a notice of hearing issued prior to the date of the enactment
of this Act.''
Section Referred to in Other Sections
This section is referred to in section 410 of this title; title 21
sections 467d, 677, 1051.
