Subject: [NEXTEL-1] Puzzle of the CFR

From: [email-masked]
Date: Thu, 20 Nov 2003 17:57:30 -0500

FYI- 1//20/2003

-------- Original Message --------
From: "James H. Johnston" <[email-masked]>
Subject: Puzzle of the CFR

    Several of you were kind enough to email me off-list with questions and
suggestions in response to my question earlier this week on this subject.
In that email, I said I had come across two instances where the FCC had
amended its rules but CFR still had the old ones.  The off-list comments
cleared up one of those instances.  The rules had been moved from one part
to another part of the CFR by later action of the FCC.
    The other instance is not yet explained.  Some of you suggested that the
key is whether the FCC decision was ever published in the Federal Register.
It was.  I append the relevant information from the FCC Web site.
    Thus, the Commission changed the rules, in important ways dealing with
license eligibility for ITFS, and the Commission decision and new rules were
published in the Federal Register and the FCC Record.  This was a 1998
decision, but the rules have never been changed in CFR.  They read as they
did before the 1998 decision.
    To make this example stranger, this year the Commission issued a Notice
of Proposed Rulemaking on related matters.  The NPRM talks in terms of the
rules as amended by the FCC.  Apparently, staff didn't check CFR.  Nor did
many of the parties filing comments.  Those who participated in the 1998
decision presumably thought the rules had been changed and launched their
arguments accordingly.
    As a result, the comments that were filed were like the story of the
blind men feeling the elephant.  The one at the trunk described the elephant
as a snake; the one that felt the leg described it as a tree; the one at the
tail said the elephant was like a rope.  Lawyers were arguing from different
versions of the rules, as was Commission staff.
    The preface to CFR says it must be judicially notice and give prima
facie effect.  Thus, I conclude that ultimately the text of the rules as
adopted by the Commission prevails.  However, I also think that good faith
reliance on CFR is probably a defense to claims that someone violated the
rules.

Jim Johnston

Released Date: 09/25/1998
FCC / DA # FCC-98-231
Title: AMENDMENT OF PARTS 21 AND 74 TO ENABLE MULTIPOINT DISTRIBUTION
SERVICE AND INSTRUCTIONAL TELEVISION FIXED SERVICE LICENSES TO ENGAGE IN
FIXED TWO-WAY TRANSMISSIONS
Federal Register  Volume 63 Page  65087   Date:  01/25/1999
FCC Record 13   19112

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