Appendix A to Part 1 - A Plan of Cooperative Procedure in Matters and Cases Under the Provisions of Section 410 of the Communications Act of 1934
47:1.0.1.1.2.30.207.9.1 : Appendix A
Appendix A to Part 1 - A Plan of Cooperative Procedure in Matters
and Cases Under the Provisions of Section 410 of the Communications
Act of 1934
(Approved by the Federal Communications Commission October 25,
1938, and approved by the National Association of Railroad and
Utilities Commissioners on November 17, 1938.)
preliminary statement concerning the purpose and effect of the plan
Section 410 of the Communications Act of 1934 authorizes
cooperation between the Federal Communications Commission,
hereinafter called the Federal Commission, and the State
commissions of the several States, in the administration of said
Act. Subsection (a) authorizes the reference of any matter arising
in the administration of said Act to a board to be composed of a
member or members from each of the States in which the wire, or
radio communication affected by or involved in the proceeding takes
place, or is proposed. Subsection (b) authorizes conferences by the
Federal Commission with State commissions regarding the
relationship between rate structures, accounts, charges, practices,
classifications, and regulations of carriers subject to the
jurisdiction of such State commissions and of said Federal
Commission and joint hearings with State commissions in connection
with any matter with respect to which the Federal Commission is
authorized to act.
Obviously, it is impossible to determine in advance what matters
should be the subject of a conference, what matters should be
referred to a board, and what matters should be heard at a joint
hearing of State commissions and the Federal Commission. It is
understood, therefore, that the Federal Commission or any State
commission will freely suggest cooperation with respect to any
proceedings or matter affecting any carrier subject to the
jurisdiction of said Federal Commission and of a State commission,
and concerning which it is believed that cooperation will be in the
public interest.
To enable this to be done, whenever a proceeding shall be
instituted before any commission, Federal or State, in which
another commission is believed to be interested, notice should be
promptly given each such interested commission by the commission
before which the proceeding has been instituted. Inasmuch, however,
as failure to give notice as contemplated by the provisions of this
plan will sometimes occur purely through inadvertence, any such
failure should not operate to deter any commission from suggesting
that any such proceeding be made the subject matter of cooperative
action, if cooperation therein is deemed desirable.
It is understood that each commission whether or not represented
in the National Association of Railroad and Utilities
Commissioners, must determine its own course of action with respect
to any proceeding in the light of the law under which, at any given
time, it is called upon to act, and must be guided by its own views
of public policy; and that no action taken by such Association can
in any respect prejudice such freedom of action. The approval by
the Association of this plan of cooperative procedure, which was
jointly prepared by the Association's standing Committee on
Cooperation between Federal and State commissions and said Federal
Commission, is accordingly recommendatory only; but such plan is
designed to be, and it is believed that it will be, a helpful step
in the promotion of cooperative relations between the State
commissions and said Federal Commission.
notice of institution of proceeding
Whenever there shall be instituted before the Federal Commission
any proceeding involving the rates of any telephone or telegraph
carrier, the State commissions of the States affected thereby will
be notified immediately thereof by the Federal Commission, and each
notice given a State commission will advise such commission that,
if it deems the proceeding one which should be considered under the
cooperative provisions of the Act, it should either directly or
through the National Association of Railroad and Utilities
Commissioners, notify the Federal Commission as to the nature of
its interest in said matter and request a conference, the creation
of a joint board, or a joint hearing as may be desired, indicating
its preference and the reasons therefor. Upon receipt of such
request the Federal Commission will consider the same and may
confer with the commission making the request and with other
interested commission, or with representatives of the National
Association of Railroad and Utilities Commissioners, in such manner
as may be most suitable; and if cooperation shall appear to be
practicable and desirable, shall so advise each interested State
commission, directly, when such cooperation will be by joint
conference or by reference to a joint board appointed under said
sec. 410 (a), and, as hereinafter provided, when such cooperation
will be by a joint hearing under said sec. 410(b).
Each State commission should in like manner notify the Federal
Commission of any proceeding instituted before it involving the
toll telephone rates or the telegraph rates of any carrier subject
to the jurisdiction of the Federal Commission.
procedure governing joint conferences
The Federal Commission, in accordance with the indicated
procedure, will confer with any State commission regarding any
matter relating to the regulation of public utilities subject to
the jurisdiction of either commission. The commission desiring a
conference upon any such matter should notify the other without
delay, and thereupon the Federal Commission will promptly arrange
for a conference in which all interested State commissions will be
invited to be present.
procedure governing matters referred to a board
Whenever the Federal Commission, either upon its own motion or
upon the suggestion of a State commission, or at the request of any
interested party, shall determine that it is desirable to refer a
matter arising in the administration of the Communications Act of
1934 to a board to be composed of a member or members from the
State or States affected or to be affected by such matter, the
procedure shall be as follows:
The Federal Commission will send a request to each interested
State commission to nominate a specified number of members to serve
on such board.
The representation of each State concerned shall be equal,
unless one or more of the States affected chooses to waive such
right of equal representation. When the member or members of any
board have been nominated and appointed, in accordance with the
provisions of the Communications Act of 1934, the Federal
Commission will make an order referring the particular matter to
such board, and such order shall fix the time and place of hearing,
define the force and effect the action of the board shall have, and
the manner in which its proceedings shall be conducted. The rules
of practice and procedure, as from time to time adopted or
prescribed by the Federal Commission, shall govern such board, as
far as applicable.
procedure governing joint hearings
Whenever the Federal Commission, either upon its own motion or
upon suggestions made by or on behalf of any interested State
commission or commissions, shall determine that a joint hearing
under said sec. 410(b) is desirable in connection with any matter
pending before said Federal Commission, the procedure shall be as
follows:
(a) The Federal Commission will notify the general solicitor of
the National Association of Railroad and Utilities Commissioners
that said Association, or, if not more than eight States are within
the territory affected by the proceeding, the State commissions
interested, are invited to name Cooperating Commissioners to sit
with the Federal Commission for the hearing and consideration of
said proceeding.
(b) Upon receipt of any notice from said Federal Commission
inviting cooperation, if not more than eight States are involved,
the general solicitor shall at once advise the State commissions of
said States, they being represented in the membership of the
association, of the receipt of such notice, and shall request each
such commission to give advice to him in writing, before a date to
be indicated by him in his communication requesting such advice (1)
whether such commission will cooperate in said proceeding, (2) if
it will, by what commissioner it will be represented therein.
(c) Upon the basis of replies received, the general solicitor
shall advise the Federal Commission what States, if any, are
desirous of making the proceeding cooperative and by what
commissioners they will be represented, and he shall give like
advice to each State commission interested therein.
(d) If more than eight States are interested in the proceeding,
because within territory for which rates will be under
consideration therein, the general solicitor shall advise the
president of the association that the association is invited to
name a cooperating committee of State commissioners representing
the States interested in said proceeding.
The president of the association shall thereupon advise the
general solicitor in writing (1) whether the invitation is accepted
on behalf of the association, and (2) the names of commissioners
selected to sit as a cooperating committee. The president of the
association shall have the authority to accept or to decline said
invitation for the association, and to determine the number of
commissioners who shall be named on the cooperating committee,
provided that his action shall be concurred in by the chairman of
the association's executive committee. In the event of any failure
of the president of the association and chairman of its executive
committee to agree, the second vice president of the association
(or the chairman of its committee on cooperation between State and
Federal commissions, if there shall be no second vice president)
shall be consulted, and the majority opinion of the three shall
prevail. Consultations and expressions of opinion may be by mail or
telegraph.
(e) If any proceeding, involving more than eight States, is
pending before the Federal Commission, in which cooperation has not
been invited by that Commission, which the association's president
and the first and second vice presidents, or any two of them,
consider should be made a cooperating proceeding, they may instruct
the general solicitor to suggest to the Federal Commission that the
proceeding be made a cooperative proceeding; and any State
commission considering that said proceeding should be made
cooperative may request the president of the association or the
chairman of its executive committee to make such suggestion after
consideration with the executive officers above named. If said
Federal Commission shall assent to the suggestion, made as
aforesaid, the president of the association shall have the same
authority to proceed, and shall proceed in the appointment of a
cooperating committee, as is provided in other cases involving more
than eight States, wherein the Federal Commission has invited
cooperation, and the invitation has been accepted.
(f) Whenever any case is pending before the Federal Commission
involving eight States or less, which a commission of any of said
States considers should be made cooperative, such commission,
either directly or through the general solicitor of the
association, may suggest to the Federal Commission that the
proceeding be made cooperative. If said Federal Commission accedes
to such suggestion, it will notify the general solicitor of the
association to that effect and thereupon the general solicitor
shall proceed as is provided in such case when the invitation has
been made by the Federal Commission without State commission
suggestion.
appointment of cooperating commissioners by the president
In the appointment of any cooperating committee, the president
of the association shall make appointments only from commissions of
the States interested in the particular proceeding in which the
committee is to serve. He shall exercise his best judgment to
select cooperating commissioners who are especially qualified to
serve upon cooperating committees by reason of their ability and
fitness; and in no case shall he appoint a commissioner upon a
cooperating committee until he shall have been advised by such
commissioner that it will be practicable for him to attend the
hearings in the proceeding in which the committee is to serve,
including the arguments therein, and the cooperative conferences,
which may be held following the submission of the proceeding, to an
extent that will reasonably enable him to be informed upon the
issues in the proceeding and to form a reasonable judgment in the
matters to be determined.
tenure of cooperators
(a) No State commissioner shall sit in a cooperative proceeding
under this plan except a commissioner who has been selected by his
commission to represent it in a proceeding involving eight States
or less, or has been selected by the president of the association
to sit in a case involving more than eight States, in the manner
hereinbefore provided.
(b) A commissioner who has been selected, as hereinbefore
provided, to serve as a member of a cooperating committee in any
proceeding, shall without further appointment, and without regard
to the duration of time involved, continue to serve in said
proceeding until the final disposition thereof, including hearings
and conferences after any order or reopening, provided that he
shall continue to be a State commissioner.
(c) No member of a cooperating committee shall have any right or
authority to designate another commissioner to serve in his place
at any hearing or conference in any proceeding in which he has been
appointed to serve.
(d) Should a vacancy occur upon any cooperating committee, in a
proceeding involving more than eight States, by reason of the death
of any cooperating commissioner, or of his ceasing to be a State
commissioner, or of other inability to serve, it shall be the duty
of the president of the association to fill the vacancy by
appointment, if, after communication with the chairman of the
cooperating committee, it be deemed necessary to fill such
vacancy.
(e) In the event of any such vacancy occurring upon a
cooperating committee involving not more than eight States, the
vacancy shall be filled by the commission from which the vacancy
occurs.
cooperating committee to determine respecting any report of
statement of its attitude
(a) Whenever a cooperating committee shall have concluded its
work, or shall deem such course advisable, the committee shall
consider whether it is necessary and desirable to make a report to
the interested State commissions, and, if it shall determine to
make a report, it shall cause the same to be distributed through
the secretary of the association, or through the general solicitor
to all interested commissions.
(b) If a report of the Federal Commission will accompany any
order to be made in said proceeding, the Federal Commission will
state therein the concurrence or nonconcurrence of said cooperating
committee in the decision or order of said Federal Commission.
construction hereof in certain respects expressly provided
It is understood and provided that no State or States shall be
deprived of the right of participation and cooperation as
hereinbefore provided because of nonmembership in the association.
With respect to any such State or States, all negotiations herein
specified to be carried on between the Federal Commission and any
officer of such association shall be conducted by the Federal
Commission directly with the chairman of the commission of such
State or States.
[28 FR 12462, Nov. 22, 1963, as amended at 29 FR 4801, Apr. 4,
1964]