**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 1.4 of )

the Commission\'s Rules Relating to )

Computation of Time )

**MEMORANDUM OPINION AND ORDER**

Adopted: May 17, 2000; Released: June 2, 2000

By the Commission:

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level71. In this order we make minor amendments to the
Commission\'s computation of time rule, 47 C.F.R. § 1.4, to clarify the
rule. We clarify that the date of \"public notice\" for all rulemaking
documents required by the Administrative Procedure Act (APA), 5 U.S.C. §
552(a), 553, to be published in the Federal Register, is the date of
publication in the Federal Register. We also clarify the date of
\"public notice\" for Commission determinations in section 271
proceedings, 47 U.S.C. § 271.

2\. Section 1.4 establishes the method for computing the amount of time
within which persons or entities must act in response to deadlines
established by the Commission. It also applies to computation of time
for seeking both reconsideration and judicial review of Commission
decisions. Section 1.4(b) provides that unless otherwise indicated, the
first day to be counted when a time period begins with an action taken
by the Commission is the day after the day on which \"public notice\" of
the action is given. Section 1.4(b)(1) defines the term \"public
notice\" for documents in \"notice and comment rulemaking proceedings\"
as the date of publication in the Federal Register, and section
1.4(b)(2) defines \"public notice\" for non-rulemaking documents as the
release date, whether or not the document is published in the Federal
Register.

3\. The existing rules do not indicate specifically what the date of
\"public notice\" should be for rulemaking documents required to be
published in the Federal Register, [see]{.underline} 5 U.S.C. §§
552(a)(C)-(E), 553(b), but that are adopted without notice and comment
in accordance with the exceptions provided in the APA. Such rulemakings
include rules involving a military or foreign affairs function,
interpretive rules, rules of agency organization procedure or practice,
general statements of policy, or rules adopted when the agency for good
cause finds that notice and comment are impracticable, unnecessary or
contrary to the public interest. 5 U.S.C. § 553(a),(b)(A), (B). In order
to make clear what the \"public notice\" date is for these non-notice
and comment rulemaking proceedings, we are amending section 1.4(b)(1).
The rule will now indicate that the date of publication in the Federal
Register is the date of \"public notice\" for all notice and comment
rulemakings and for all rulemaking documents required by the APA to be
published in the Federal Register. We note that interlocutory procedural
rulings in rulemaking proceedings, such as orders granting extensions of
time or other miscellaneous procedural orders that directly pertain to a
rulemaking itself, are governed by amended section 1.4(b)(1), because
these procedural orders in rulemaking dockets are required to be
published in the Federal Register.

4\. We also clarify that proceedings that do not fall within the class
of rulemaking decisions that must be published in the Federal Register,
such as adjudicatory matters, e.g. individual licensing decisions and
waivers as to specific parties, do not come within the scope of section
1.4(b)(1), even if the decisions happen to be related to, or issued in,
an on-going rule making docket. In so doing, we expressly depart from
the interpretation of our computation of time rule that was announced in
[Adams Telcom, Inc. v. FCC]{.underline}, 997 F.2d 955 (D.C. Cir. 1993).
The date of public notice for decisions in such non-rulemaking matters
is the release date of the document that contains the Commission\'s
decision, not the date of publication in the Federal Register.

5\. Finally, we are amending section 1.4(b)(2) to make clear that
\"public notice\" for section 271 determinations is the date of release
of the Commission\'s decision. Section 271(d)(5) of the Communications
Act, 47 U.S.C. § 271(d)(5), adopted as part of the Telecommunications
Act of 1996, requires the Commission, not later than 10 days after
issuing a determination approving or denying an authorization request
from a Bell Operating Company to provide interLATA services pursuant to
section 271, to publish a brief description of its written determination
in the Federal Register. Although the statute requires their publication
in the Federal Register, decisions with respect to section 271
applications are adjudications, not rulemakings. The brief summaries of
the Commission\'s section 271 determinations thus appear in the notices
category of the Federal Register, not the rules category. Consistent
with their adjudicatory status, the date of public notice for section
271 decisions is properly the date of release, and the rules are amended
to state this explicitly.

6\. The rule amendments adopted herein involve rules of agency
organization, procedure, or practice, and the notice and comment and
effective date provisions of the Administrative Procedure Act are
therefore inapplicable. 5 U.S.C. § 553(b)(A), (d).

7\. Because members of the public relied on the prior interpretation of
our rules announced in [Adams Telcom, Inc.]{.underline}, the amended
rule as it applies with respect to these adjudicatory decisions (and
which is explained in a new note to amended section 1.4(b)(1)), applies
only to Commission decisions released on or after the effective date of
the amended rule. The other clarifications to the computation of time
rules contained in this order are, however, applicable to all Commission
decisions, whether released before or after the effective date of the
new rules, as they merely codify existing interpretations and practice.

8\. ACCORDINGLY, IT IS ORDERED, That pursuant to sections 4(i), 4(j),
303(r), 47 U.S.C. §§ 4(i), 4(j), 303(r), 47 C.F.R. Part I IS AMENDED as
set forth below, effective upon publication in the Federal Register.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**APPENDIX**

Part I of Title 47 of the Code of Federal Regulations is amended to read
as follows:

1\. The authority citation for Part I continues to read as follows:

**AUTHORITY: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47 U.S.C.
154, 303.**

2\. Subsections (b)(1) and (b)(2) of section 1.4 are amended by deleting
the existing sentences and substituting the following:

\*\*\*\*\*\*

§ 1.4(b)

\*\*\*

> \(1\) For all documents in notice and comment and non-notice and
> comment rulemaking proceedings required by the Administrative
> Procedure Act, 5 U.S.C. §§ 552, 553, to be published in the Federal
> Register, including summaries thereof, the date of publication in the
> Federal Register.
>
> \*\*\*
>
> Note: licensing and other adjudicatory decisions with respect to
> specific parties that may be associated with or contained in
> rulemaking documents are governed by the provisions of section
> 1.4(b)(2).
>
> \(2\) For non-rulemaking documents released by the Commission or
> staff, including the Commission\'s section 271 determinations, 47
> U.S.C. § 271, the release date.

\*\*\*\*\*