FCC Streamlines Administrative Hearings

The FCC changed its rules for administrative hearings to streamline the process and facilitate more hearings being conducted on entirely paper, said an order Monday. “Trial-type hearings are costly and impose significant burdens and delays on both applicants and the agency that may not be necessary.” The rules will allow the presiding officer -- which under the revised rules could be an administrative law judge, the commission or a commissioner -- to designate matters for hearing on a written record whenever a dispute can be solved that way. “Alternatively, the Commission will order a hearing with live testimony and/or cross-examination when it is appropriate,” the order said. Parties can request live hearings, but the decision is up to the presiding officer. The FCC will determine in each hearing designation order whether a case will be overseen by an ALJ or the commission. Having the FCC preside could ameliorate case backlogs due to the agency's having only one ALJ, the order said. “We reject any claim that the independence and objectivity of the presiding officer can be assured only if an administrative law judge serves as the presiding officer.” Commissioners must recuse themselves from matters in which they aren’t impartial, and ALJ decisions are ultimately subject to FCC review, the order said. When the FCC is the presiding officer, it can delegate authority to a commission-appointed case manager to perform some presiding officer functions, including ruling on discovery options “and other interlocutory matters,” the order said. The new rules include a new, more lenient evidence standard for such hearings, based on the Administrative Procedure Act. The previous evidence rules had been based on the federal rules of evidence.