Implementation of the Equal Acess to Justice Act in Agency Proceedings

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[FCC 96-306]

Implementation of the Equal Acess to Justice Act in Agency

Proceedings

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission has amended its rules implementing the Equal

Access to Justice Act to conform to and carry out the intent of recent

amendments of that Act to permit recovery, in conjunction with

adversary adjudications commenced on or after March 29, 1996, of

attorney fees, not exceeding $125.00 per hour, and other expenses. In

addition, such an award is permitted when the demand of the Commission

for relief is substantially in excess of the decision in an adversary

adjudication and is unreasonable when compared with such decision,

under the facts and circumstances of the case, unless the party has

committed a willful violation of law or otherwise acted in bad faith,

or special circumstances make an award unjust. Finally, a small entity

as defined in 5 U.S.C. 601 is declared to be an eligible party for such

relief.

EFFECTIVE DATE: July 31, 1996.

FOR FURTHER INFORMATION CONTACT: John I. Riffer, Office of General

Counsel, (202) 418-1756.

SUPPLEMENTARY INFORMATION:

Adopted: July 15, 1996.

Released: July 18, 1996.

1. By this Order, we amend our rules implementing the Equal Access

to Justice Act (EAJA) for Commission proceedings in conformance with

recent amendments of that Act adopted as part of the Contract with

America Advancement Act of 1996, Pub. L. 104-121, 110 Stat. 847 (1996).

2. The pertinent provisions of the Contract with America

Advancement Act of 1996 amend the EAJA to permit recovery, in

conjunction with adversary adjudications commenced on or after March

29, 1996, of attorney fees, not exceeding $125.00 per hour, and other

expenses. In addition, the legislation provides for such an award when

the demand of the Commission for relief is substantially in excess of

the decision in an adversary adjudication and is unreasonable when

compared with such decision, under the facts and circumstances of the

case, unless the party has committed a willful violation of law or

otherwise acted in bad faith, or special circumstances make an award

unjust. Finally, the statute establishes that a small entity as defined

in 5 U.S.C. 601 is an eligible party for such relief. The revised

rules, as set forth below, simply incorporate the changes in the EAJA

and make those changes applicable to Commission proceedings. These

changes merely reiterate the specific terms of the statute and do not

involve any discretionary action. Under these circumstances, this

action comes within the ``good cause'' exemptions of the Administrative

Procedure Act, 5 U.S.C. 553(b)(B) and 553(d), and the notice and

comment and effective date provisions of the Administrative Procedure

Act are inapplicable.

3. Accordingly, it is ordered, That, effective July 31, 1996, part

1 is amended as set forth below.

List of Subjects in 47 CFR Part 1

Administrative practice and procedure, Federal Communications

Commission.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Rule Changes

Part 1 of Chapter I of Title 47 of the Code of Federal Regulations

is amended as follows:

PART 1--PRACTICE AND PROCEDURE

1. The authority citation for part 1 continues to read as follows:

Authority: 47 U.S.C. 151, 154, 303, and 309(j) unless otherwise

noted.

2. The second sentence of Sec. 1.1501 is revised to read as

follows:

Sec. 1.1501 Purpose of these rules.

* * * An eligible party may receive an award when it prevails over

the Commission, unless the Commission's position in the proceeding was

substantially justified or special circumstances make an award unjust,

or when the demand of the Commission is substantially in excess of the

decision in the adversary adjudication and is unreasonable when

compared with such decision, under the facts and circumstances of the

case, unless the party has committed a willful violation of law or

otherwise acted in bad faith, or special circumstances make an award

unjust. * * *

3. Section 1.1502 is revised to read as follows:

Sec. 1.1502 When the EAJA applies.

The EAJA applies to any adversary adjudication pending or commenced

before the Commission on or after August 5, 1985. The provisions of

Sec. 1.1505(b) apply to any adversary adjudications commenced on or

after March 29, 1996.

4. Section 1.1504 is amended by removing the period at the end of

paragraph (b)(5), adding in its place a semicolon, and adding a new

paragraph (b)(6) to read as follows:

Sec. 1.1504 Eligibility of applicants.

* * * * *

(6) For purposes of Sec. 1.1505(b), a small entity as defined in 5

U.S.C. 601.

* * * * *

[[Page 39899]]

5. Section 1.1505 is revised to read as follows:

Sec. 1.1505 Standards for awards.

(a) A prevailing party may receive an award for fees and expenses

incurred in connection either with an adversary adjudication, or with a

significant and discrete substantive portion of an adversary

adjudication in which the party has prevailed over the position of the

Commission.

(1) The position of the Commission includes, in addition to the

position taken by the Commission in the adversary adjudication, the

action or failure to act by the agency upon which the adversary

adjudication is based.

(2) An award will be reduced or denied if the Commission's position

was substantially justified in law and fact, if special circumstances

make an award unjust, or if the prevailing party unduly or unreasonably

protracted the adversary adjudication.

(b) If, in an adversary adjudication arising from a Commission

action to enforce a party's compliance with a statutory or regulatory

requirement, the demand of the Commission is substantially in excess of

the decision in the adversary adjudication and is unreasonable when

compared with that decision, under the facts and circumstances of the

case, the party shall be awarded the fees and other expenses related to

defending against the excessive demand, unless the party has committed

a willful violation of law or otherwise acted in bad faith, or special

circumstances make an award unjust. The ``demand'' of the Commission

means the express demand which led to the adversary adjudication, but

it does not include a recitation by the Commission of the maximum

statutory penalty in the administrative complaint, or elsewhere when

accompanied by an express demand for a lesser amount.

(c) The burden of proof that an award should not be made is on the

appropriate Bureau (see Sec. 1.21) whose representative shall be called

``Bureau counsel'' in this subpart K.

6. The first sentence of Sec. 1.1506(b) is revised to read as

follows:

Sec. 1.1506 Allowable fees and expenses.

* * * * *

(b) No award for the fee of an attorney or agent under these rules

may exceed $75.00, or for adversary adjudications commenced on or after

March 29, 1996, $125.00, per hour. * * *

* * * * *

Sec. 1.1507 [Amended]

7. The first sentence of Sec. 1.1507(a) is amended by removing the

word ``attorney's'' and adding in its place the word ``attorneys'' and

by removing ``$75'' and adding in its place ``$125.00.''

Sec. 1.1508 [Amended]

8. The first sentence of Sec. 1.1508 is revised by removing the

word ``for'' and adding in its place the word ``or.''

9. Section 1.1511 is amended by revising paragraph (a) and the

introductory text of paragraph (b) to read as follows:

Sec. 1.1511 Contents of application.

(a) An application for an award of fees and expenses under EAJA

shall identify the applicant and the proceeding for which an award is

sought. Unless the applicant is an individual, the application shall

state the number of employees of the applicant and describe briefly the

type and purpose of its organization or business. The application shall

also:

(1) Show that the applicant has prevailed and identify the position

of an agency or agencies in the proceeding that the applicant alleges

was not substantially justified; or

(2) Show that the demand by the agency or agencies in the

proceeding was substantially in excess of, and was unreasonable when

compared with, the decision in the proceeding.

(b) The application shall also include a declaration that the

applicant is a small entity as defined in 5 U.S.C. 601 or a statement

that the applicant's net worth does not exceed $2 million (if an

individual) or $7 million (for all other applicants, including their

affiliates). However, an applicant may omit the statement concerning

its net worth if:

* * * * *

10. The first and second sentence of Sec. 1.1513 are revised to

read as follows:

Sec. 1.1513 Documentation of fees and expenses.

The application shall be accompanied by full documentation of the

fees and expenses, including the cost of any study, analysis,

engineering report, test, project or similar matter, for which an award

is sought. A separate itemized statement shall be submitted for each

professional firm or individual whose services are covered by the

application, showing hours spent in connection with the proceeding by

each individual, a description of the specific services performed, the

rate at which each fee has been computed, any expenses for which

reimbursement is sought, the total amount claimed, and the total amount

paid or payable by the applicant or by any other person or entity for

the services provided. * * *

11. Section 1.1514 is amended by revising paragraphs (a) and (c) to

read as follows:

Sec. 1.1514 When an application may be filed.

(a) An application may be filed whenever the applicant has

prevailed in the proceeding or in a significant and discrete

substantive portion of the proceeding, or when the demand of the

Commission is substantially in excess of the decision in the

proceeding, but in no case later than 30 days after the Commission's

final disposition of the proceeding.

* * * * *

(c) For purposes of this rule, final disposition means the later of

(1) The date on which an initial decision or other recommended

disposition of the merits of the proceeding by an Administrative Law

Judge becomes administratively final;

(2) Issuance of an order disposing of any petitions for

reconsideration of the Commission's order in the proceeding;

(3) If no petition for reconsideration is filed, the last date on

which such petition could have been filed;

(4) Issuance of a final order by the Commission or any other final

resolution of a proceeding, such as settlement or voluntary dismissal,

which is not subject to a petition for reconsideration, or to a

petition for judicial review; or

(5) Completion of judicial action on the underlying controversy and

any subsequent Commission action pursuant to judicial mandate.

Sec. 1.1524 [Amended]

12. The first sentence of Sec. 1.1524 is amended by removing the

word ``often'' and adding in its place the word ``after.''

13. Section 1.1526(a) is revised to read as follows:

Sec. 1.1526 Further proceedings.

(a) Ordinarily, the determination of an award will be made on the

basis of the written record. However, on request of either the

applicant or Bureau counsel, or on his or her own initiative, the

Administrative Law Judge may order further proceedings, such as an

informal conference, oral argument, additional written submissions or,

as to issues other than excessive demand or substantial justification,

an evidentiary hearing. Such further proceedings shall be held only

when necessary for full and fair resolution of the issues arising from

the application, and shall be conducted as promptly as possible.

Whether or not the position of the

[[Page 39900]]

agency embodied an excessive demand or was substantially justified

shall be determined on the basis of the administrative record, as a

whole, which is made in the adversary adjudication for which fees and

other expenses are sought.

* * * * *

14. Section 1.1527 is revised to read as follows:

Sec. 1.1527 Decision.

The Administrative Law Judge shall issue an initial decision on the

application as soon as possible after completion of proceedings on the

application. The decision shall include written findings and

conclusions regarding the applicant's eligibility and whether the

applicant was a prevailing party or whether the demand by the agency or

agencies in the proceeding was substantially in excess of, and was

unreasonable when compared with, the decision in the adversary

adjudication, and an explanation of the reasons for any difference

between the amount requested and the amount awarded. The decision shall

also include, if at issue, findings on whether the Commission's

position substantially justified, whether the applicant unduly

protracted the proceedings, committed a willful violation of law, or

otherwise acted in bad faith, or whether special circumstances make an

award unjust. If the applicant has sought an award against more than

one agency, the decision shall allocate responsibility for payment of

any award made among the agencies, and shall explain the reasons for

the allocation made.

Sec. 1.1528 [Amended]

15. The first sentence of Sec. 1.1528 is amended by removing the

word ``fee.''

[FR Doc. 96-19500 Filed 7-30-96; 8:45 am]

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