Before the

Federal Communications Commission

**Washington, D.C. 20554**

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**ORDER**

**Adopted: January 24, 2006 Released: January 26, 2006**

By the Commission:

1\. By this order, we amend 47 C.F.R. § 1.13(a)(2) to eliminate an
inconsistency with the Federal Rules of Appellate Procedure (Federal
Rules) that arose as a result of the 2002 amendments to the Federal
Rules. Section 1.13 of the Commission's Rules implements the provisions
of 28 U.S.C. § 2112. That statutory provision, in relevant part, is
applicable to situations where different parties seeking review of the
same agency order file petitions for review in different courts of
appeals. Under 28 U.S.C. § 2112(a), if, "within ten days after issuance
of the order," an agency receives two or more petitions for review filed
with different courts of appeals, that agency is required to notify the
judicial panel on multidistrict litigation, which then randomly selects
one of those courts of appeals to consider the petitions for review.
Section 1.13(a)(1) of the Commission's Rules implements this provision
by specifying that a party wishing to avail itself of these procedures
must, within ten days after issuance of an order, file with the
Commission's Office of General Counsel (OGC) a copy of its petition for
review as filed and date-stamped by the court of appeals with which it
was filed.

2\. The inconsistency which we correct by this order concerns the manner
in which the ten-day period for filing petitions with OGC is computed.
Section 1.13(a)(2) of the Commission's Rules provides that
"\[c\]omputation of time of the ten-day period for filing copies of
petitions for review shall be governed by § 1.4 of the Commission's
Rules." Section 1.4(g), in turn, sets forth the general Commission rule
that, unless otherwise provided, intermediate holidays shall not be
counted only in determining filing periods of less than seven days. The
term holidays is defined to include Saturdays, Sundays, other recognized
federal legal holidays, and other days on which the Commission's offices
are closed. 47 C.F.R. § 1.4(e).

3\. Because the period for filing petitions for review with OGC pursuant
to section 2112(a) for invoking the random selection process is not less
than seven days, weekends and holidays would appear to be counted in
determining the ten-day period under existing section 1.13. Such a
determination, however, conflicts with current Federal Rule of Appellate
Procedure 26(a)(2). That rule applies "in computing any period of time
specified in these rules or in any local court rule, court order, or
applicable statute," and now states that computations must "\[e\]xclude
intermediate Saturdays, Sundays, and legal holidays when the period is
less than 11 days, unless stated in calendar days."[^1] Thus, Rule
26(a)(2), in contrast to existing 47 C.F.R. § 1.13, excludes weekends
and holidays in making the relevant ten-day computation under 28 U.S.C.
§ 2112. Because the Commission's Rules should be consistent with, rather
than conflict with, the Federal Rules of Appellate Procedure, we will
amend section 1.13(a)(2) to replace the reference to section 1.4 of the
Commission's Rules with a reference to Rule 26 of the Federal Rules of
Appellate Procedure, thus making clear that the ten-day period under
section 1.13 excludes weekends and holidays.[^2]

3\. Authority for this rulemaking is contained in 47 U.S.C. §§ 154(i)
and 154(j) and 28 U.S.C. § 2112.

4\. ACCORDINGLY, IT IS ORDERED, That 47 C.F.R. § 1.13 IS AMENDED as set
forth in the attached Appendix effective 30 days subsequent to
publication in the Federal Register.[^3]

5\. For further information, contact David S. Senzel, (202) 418-1720,
Office of General Counsel.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

> Secretary

**APPENDIX**

Part 1 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\. Section 1.13 is amended by revising paragraph (a)(2) to read as
follows:

§ 1.13 Filing of petitions for review and notices of appeals of
Commission orders.

(a)(1) \* \* \* \*

\(2\) Computation of time of the ten-day period for filing copies of
petitions for review of a Commission order shall be governed by Rule 26
of the Federal Rules of Appellate Procedure. The date of issuance of a
Commission order for purposes of filing copies of petitions for review
shall be the date of public notice as defined in § 1.4(b) of the
Commission's Rules, 47 CFR 1.4(b).

\* \* \* \*

[^1]: Prior to amendments made in 2002, Rule 26(a)(2), consistent with
    existing section 1.13, provided that weekends and holidays would be
    excluded when "the period is less than 7 days, unless stated in
    calendar days."

[^2]: We note that Rule 26(a)(4) defines legal holidays to mean New
    Year's Day, Martin Luther King's Birthday, President's Day, Memorial
    Day, Independence Day, Labor Day, Columbus Day, Veterans' Day,
    Thanksgiving Day, or other various government-declared holidays. It
    does not, however, define other days that the court is closed as
    "holidays." Rather, if the act to be done is filing a paper in
    court, Rule 26(a)(3) excludes from being counted as a day the last
    day of the filing period when the weather or other conditions makes
    the clerk's office inaccessible. We will apply the same rule when
    the Commission is closed on the last day of the filing period. In
    those cases, the petition must be filed the next business day on
    which the Commission is open.

[^3]: Notice and comment is not required to amend a procedural rule.
    [See]{.underline} 5 U.S.C. § 553(b).