Appeal from presiding officer's interlocutory ruling; effective date of ruling.
(a) Interlocutory rulings which are appealable as a matter of right.
Rulings listed in this paragraph are appealable as a matter of right. An appeal from such a ruling may not be deferred and raised as an exception to the initial decision.
If the presiding officer's ruling denies or terminates the right of any person to participate as a party to a hearing proceeding, such person, as a matter of right, may file an appeal from that ruling.
If the presiding officer's ruling requires testimony or the production of documents, over objection based on a claim of privilege, the ruling on the claim of privilege is appealable as a matter of right.
If the presiding officer's ruling denies a motion to disqualify the presiding judge, the ruling is appealable as a matter of right.
Rulings granting a joint request filed under § 1.525 without terminating the proceeding are appealable by any party as a matter of right.
A ruling removing counsel from the hearing is appealable as a matter of right, by counsel on his own behalf or by his client. (In the event of such ruling, the presiding officer will adjourn the hearing for such period as is reasonably necessary for the client to secure new counsel and for counsel to familiarize himself with the case).
(b) Other interlocutory rulings.
Except as provided in paragraph (a) of this section, appeals from interlocutory rulings of the presiding officer shall be filed only if allowed by the presiding officer. Any party desiring to file an appeal shall first file a request for permission to file appeal. The request shall be filed within 5 days after the order is released or (if no written order) after the ruling is made. Pleadings responsive to the request shall be filed only if they are requested by the presiding officer. The request shall contain a showing that the appeal presents a new or novel question of law or policy and that the ruling is such that error would be likely to require remand should the appeal be deferred and raised as an exception. The presiding officer shall determine whether the showing is such as to justify an interlocutory appeal and, in accordance with his determination, will either allow or disallow the appeal or modify the ruling. If the presiding officer allows or disallows the appeal, his ruling is final: Provided, however, That the Commission may, on its own motion, dismiss an appeal allowed by the presiding officer on the ground that objection to the ruling should be deferred and raised as an exception. In the discretion of the presiding officer, the request for permission to file appeal may be made orally, on the record of the proceeding. The request may be disposed of orally.
If an appeal is not allowed, or is dismissed by the Commission, or if permission to file an appeal is not requested, objection to the ruling may be raised on review of the initial decision.
If an appeal is allowed and is considered on its merits, the disposition on appeal is final. Objection to the ruling or to the action on appeal may not be raised on review of the initial decision.
If the presiding officer modifies the ruling, any party adversely affected by the modified ruling may file a request for permission to file appeal, pursuant to the provisions of this paragraph.
(c) Procedures, effective date.
Unless the presiding officer orders otherwise, rulings made by him shall be effective when the order is released or (if no written order) when the ruling is made. The Commission may stay the effect of any ruling which comes before it for consideration on appeal.
Appeals filed under paragraph (a) of this section shall be filed within 5 days after the order is released or (if no written order) after the ruling is made. Appeals filed under paragraph (b) of this section shall be filed within 5 days after the appeal is allowed.
The appeal shall conform with the specifications set out in § 1.49 and shall be subscribed and verified as provided in § 1.52.
The appeal shall be served on parties to the proceeding (see §§ 1.47 and 1.211 ), and shall be filed with the Secretary, Federal Communications Commission, Washington, D.C. 20554.
The appeal shall not exceed 5 double-spaced typewritten pages.
Appeals are acted on by the Commission.
Oppositions and replies shall be served and filed in the same manner as appeals and shall be served on appellant if he is not a party to the proceeding. Oppositions shall be filed within 5 days after the appeal is filed. Replies shall not be permitted, unless the Commission specifically requests them. Oppositions shall not exceed 5 double-spaced typewritten pages. Replies shall not exceed 5 double-spaced typewritten pages.
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083;
47 U.S.C. 154, 303, 307
[35 FR 17333, Nov. 11, 1970, as amended at 40 FR 39509, Aug. 28, 1975; 41 FR 14874, Apr. 8, 1976; 41 FR 28789, July 13, 1976; 46 FR 58682, Dec. 3, 1981; 55 FR 36641, Sept. 6, 1990; 62 FR 4171, Jan. 29, 1997]