Procedures To Be Followed When Formal Complaints Are Filed Against Common Carriers
Federal RegisterJan 7, 1998
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SUMMARY: The Commission adopted a Report and Order that changed the
rules for processing formal complaints filed against common carriers.
The Report and Order adopted rules that are necessary to implement
certain provisions contained in the 1996 Act that prescribe deadlines
ranging from 90 days to 5 months for resolution of certain types of
complaints against common carriers. The rules adopted in the Report and
Order require or encourage parties to engage in pre-filing activities,
change service requirements, modify the form and content of initial
pleadings, shorten filing deadlines, eliminate pleading opportunities
that were not useful or necessary, and modify the discovery process.
EFFECTIVE DATE: March 18, 1998.
FOR FURTHER INFORMATION CONTACT: Deena Shetler (202) 418-7296. For
additional information concerning the information collections contained
in this Report and Order contact Judy Boley at 202-418-0214, or via the
Internet at [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order in CC Docket No. 96-238, adopted and released on November 25,
1997. The full text of the Report and Order is available for inspection
and copying during normal business hours in the FCC Reference Center,
Room 239, 1919 M Street, N.W., Washington D.C. The complete text of
this decision may also be purchased from the Commission's duplicating
contractor, International Transcription Services, 1231 20th Street NW,
Washington D.C. 20036, (202) 857-3800.
This Report and Order contains new or modified information
collections subject to the Paperwork Reduction Act of 1995 (PRA). It
has been submitted to the Office of Management and Budget (OMB) for
review under the PRA. OMB, the general public, and other federal
agencies are invited to comment on the proposed or modified information
collections contained in this proceeding.
Paperwork Reduction Act
This Report and Order contains either a new or modified information
collection. The Commission, as part of its continuing effort to reduce
paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collections
contained in this Order, as required by the Paperwork Reduction Act of
1995, Pub. L. 104-12. Written comments by the public on the information
collections are due February 6, 1998. OMB notification of action is due
March 9, 1998. Comments should address: (1) whether the new or modified
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information
shall practical utility; (b) the accuracy of the Commission's burden
estimates; (c) ways to enhance the quality, utility, and clarity of the
information collected; and (d) ways to minimize the burden of the
collection of information on the respondents including the use of
automated collection techniques or other forms of information
technology.
OMB Approval Number: 3060-0411.
Title: Procedures for Formal Complaints Filed Against Common
Carriers.
Form No.: FCC Form 485.
Type of Review: Revision.
Respondents: Individuals or households; businesses or other for
profit, including small business; not-for-profit institutions; state,
local or tribal government.
------------------------------------------------------------------------
Total
No. of Est. time annual
Section/title respondents per burden
respondent (hours)
------------------------------------------------------------------------
a. Service.................. 760............ 1.0 760
b. Pleading Content 760............ 3.0 2,280
Requirements.
c. Discovery................ 380 2.25 855
(complainants).
380 1.5 570
(defendants).
Estimate for recordkeeping.. 760............ 0.5 380
d. Scanning................. 38............. 5.0 190
e. Damages.................. 380............ 1.0 380
f. Briefs................... 760............ 3.0 2,280
g. Directory of Service 4,965.......... 0.25 1,241.25
Agents.
h. Joint Statement of 760............ 2.0 1,520
Stipulated Facts and Status
Conferences.
i. Filing of Copies of 760............ 0.5 380
Proposed Orders on Disks.
j. FCC 485-Intake Form...... 380............ 0.5 190
------------------------------------------------------------------------
Total Annual Burden: 11,026.25 hours.
Estimated Costs Per Respondents: $150.00 for each respondent that
files a complaint against a common carrier, it is estimated that 380
complaints will be filed in the next year.
Needs and Uses: The information has been and is currently being
used by the FCC to determine the sufficiency of complaints and to
resolve the merits of disputes between the parties.
The Report and Order requires all complainants to personally serve
their formal complaint on the defendant, as well as serve copies of the
complaint with the Mellon Bank, the Secretary of the Commission, and
the responsible Bureau or Bureaus. This requirement will speed up the
proceeding by eliminating delays in the defendant receiving a copy of
the complaint.
Regarding changes to the pleading requirements, the Report and
Order concludes that complaints, answers, and any necessary replies
must contain complete statements of relevant facts and supporting
documentation; an inventory of all documents relevant to the complaint;
an identification of all individuals with information relevant to the
complaint; and a computation of any damages claimed. The Report and
Order concludes that each complaint must contain verification of
payment of the filing fee, a certificate of service, and certification
that each complainant has mailed a certified letter to each defendant
outlining the allegations that form the basis of the complaint it
anticipated filing with the Commission to the defendant carrier that
invited a response within a reasonable time
[[Page 991]]
period and a summary of all additional steps taken to resolve the
dispute prior to the filing of the complaints, or an explanation of why
no such steps were taken. The Report and Order concludes that each
answer must contain certification that each defendant has discussed the
possibility of settlement with each complainant prior to the filing of
the complaint, or an explanation of why such discussion was not
feasible. The Report and Order also concludes that Answers must be
filed within 20 days of service of the complaint on the defendant by
the complainant. The Report and Order requires that all pleadings be
accompanied by copies of relevant tariffs. The Report and Order
concludes that all dispositive motions be accompanied by proposed
finding of facts and conclusions of law in both hard copy and on a
computer disk, formatted to be compatible with the Commission's word
processing software. The Report and Order concludes that no amendments
to complaints will be allowed and no cross-complaints or counterclaims
may be filed. The Report and Order further requires parties to submit a
joint statement of disputed and undisputed facts and key legal issues
at least two business days prior to the scheduled date of the initial
status conference. These proposals will promote agreement on a
significant number of disputed facts and legal issues, as well as
serving to better inform the Commission of the factual and legal areas
in dispute.
The Report and Order concludes that complainants must file and
serve any requests for interrogatories, up to a limit of 10,
concurrently with their complaints, defendants must file and serve any
requests for interrogatories, up to a limit of 10, prior to or
concurrently with their answer, and complainants must file and serve
any requests for interrogatories that are directed solely at facts
underlying affirmative defenses asserted by the defendant in its
answer, up to a limit of 5, within 3 calendar days of service of the
defendant's answer. The Report and Order concludes further that
individuals who are provided access to proprietary information shall
sign a notarized statement affirmatively stating that the individual
has personally reviewed the Commission's rules and understands the
limitations they impose on the signing party. Parties must maintain a
log recording the number of copies made of all proprietary materials
and the persons to whom the copies have been provided. Upon termination
of a formal complaint proceeding, all originals and reproduction of any
proprietary materials disclosed in that proceeding, along with the log
recording persons who received copies of such materials, shall be
provided to the producing party. These requirements will lead to the
disclosure of information relevant to the resolution of formal
complaints earlier in the complaint proceeding, thus, allowing for
timely resolution of these complaints.
The Report and Order also concludes that the Commission may impose
a scanning or other electronic formatting requirement for submission of
large numbers of documents in certain cases. This requirement will
assist in the efficient management of documents in those cases where
the review of large numbers of documents is necessary to the resolution
of a dispute.
The Report and Order requires that, where the Commission has
ordered parties to attempt to negotiate a damages amount according to
an approved damages formula, the parties must submit to the Commission,
within thirty days, the written results of such negotiations. The
written statement shall contain one of the following: (1) the parties'
agreement as to the amount of damages; (2) a statement that the parties
are continuing to negotiate in good faith and a request for an
extension of time to continue such negotiations; or (3) the bases for
the continuing dispute and the reasons why no agreement can be reached.
This requirement will encourage parties to negotiate the resolution of
damages claims diligently and ensure that the failure of parties to so
negotiate will be remedied by the Commission.
The Report and Order resolves that briefs may be prohibited or
limited. Where permitted, briefs must contain all claims and defenses
that the party wants the Commission to address. Each brief must attach
all documents on which it relies and explain how each attachment is
relevant to the issues. Brief length has been shortened to 25 pages for
initial briefs and 10 pages for reply briefs. This requirement will
ensure that briefs will not be filed where they would be redundant of
filings already made with the Commission and that briefs will be filed
where necessary to the full resolution of a formal complaint.
The Report and Order requires all carriers subject to the
Communications Act of 1934, as amended, to file in writing a
designation of agent for service of process with the Commission, to
facilitate service of process in all Commission proceedings.
The Report and Order concludes that parties must file a joint
statement of stipulated facts, disputed facts and key legal issues at
least two business days prior to the initial status conference. This
requirement will serve to narrow the issues in dispute and serve as
further information to be considered in determining the necessity of
any discovery sought by the parties. The Report and Order also
concludes that parties must submit a joint proposed order memorializing
the rulings made at each status conference by the close of business on
the business day following the date the status conference was held.
Alternatively, parties may submit a transcript of the rulings made at
each status conference by the close of business on the third business
day following the date the status conference was held. This requirement
will save Commission staff time and ensure that the parties fully
understand the rulings that will impact the proceedings.
The Report and Order concludes that all proposed orders must be
submitted both as hard copies and on computer disk formatted to be
compatible with the Commission's computer system and using the
Commission's current wordprocessing software. This requirement
increasing the efficiency of the formal complaint process by providing
Commission staff with the ability to adopt proposed rules either in
whole or in part where necessary.
Finally, the Report and Order concludes that complainants are
required to submit a completed intake form with its formal complaint to
indicate that the complaint meets the threshold requirements for
stating a cause of action. This requirement will help to prevent the
filing of procedurally deficient complaints.
Summary of Report and Order
[Report and Order in CC Docket No. 96-238]
I. Introduction
1. In February 1996, Congress passed and the President signed the
Telecommunications Act of 1996 (``1996 Act''). One of the main goals of
the 1996 Act is to establish a ``pro-competitive, deregulatory''
national policy framework for the telecommunications industry. In
accordance with this goal, sections 208, 260, 271, and 275 of the Act
contain deadlines ranging from ninety days to five months for the
Commission's resolution of certain complaints filed against the Bell
Operating Companies (``BOCs''), local exchange carriers (``LECs''), and
other telecommunications carriers that are subject to the requirements
of the Act. Provisions of the 1996 Act further direct the Commission to
establish such procedures as are necessary for the review and
resolution of such
[[Page 992]]
complaints within the statutory deadlines. Prompt and effective
enforcement of the Act and the Commission's rules is crucial to
attaining the 1996 Act's goals of full and fair competition in all
telecommunications markets. Such widespread competition will ensure
that the American public derives the full benefit of such competition
through new and better products and services at affordable rates.
2. We conclude that, in order to fulfill the goals and meet the
statutory deadlines of the 1996 Act, we must revise our formal
complaint rules to provide a forum for prompt resolution of all
complaints of unreasonably discriminatory or otherwise unlawful conduct
by telecommunications carriers, and thus to reduce impediments to
robust competition in all telecommunications markets. Consistent with
the Congressional mandate to expedite the processing of formal
complaints, on November 26, 1996, the Commission released a Notice of
Proposed Rulemaking, 61 FR 67978 (December 26, 1996) (``NPRM'')
proposing changes to the rules that govern formal complaints against
common carriers. In the NPRM we articulated our goal of expediting the
resolution of all formal complaints, not just those enumerated in the
1996 Act. The NPRM sought public comment on comprehensive rule changes
and additions that would: (1) encourage parties to attempt to settle
their disputes before filing formal complaints; (2) facilitate the
filing and service of complaints and related pleadings; (3) improve the
content and utility of the initial pleadings filed by both parties,
while reducing reliance on discovery and subsequent pleading
opportunities; and (4) eliminate unnecessary or redundant pleadings and
other procedural devices.
3. In this Report and Order, we adopt certain of the proposed
rules, with some modifications. The amended rules will foster our
ability to meet the statutory complaint resolution deadlines of the
1996 Act and expedite the resolution of all formal complaints, while
safeguarding the due process interests of affected parties. The rules
we adopt today apply to all formal complaints, except complaints
alleging violations of section 255. A uniform approach will ensure that
the Commission places on all formal complaints the same pro-competitive
emphasis underlying the 1996 Act's complaint resolution deadlines. The
rules we adopt in this Report and Order shall be important tools for
promptly assessing a common carrier's compliance with the requirements
of the Act and our rules. In addition, these rules provide for suitable
remedial actions where appropriate.
4. We intend to closely monitor the effectiveness of our new
streamlined rules in promoting the pro-competitive goals of the Act. We
will not hesitate to re-visit the rules and policies adopted in this
Report and Order if we later determine that further modifications are
needed to ensure that complaint proceedings are promptly and fairly
resolved and, more generally, to promote the Act's goal of full and
fair competition in all telecommunications markets.
5. In addition, Commission staff retains considerable discretion
under the new rules to, and is indeed encouraged to, explore and use
alternative approaches to complaint adjudication designed to ensure the
prompt discovery of relevant information and the full and fair
resolution of disputes in the most expeditious manner possible. We
recently established an Enforcement Task Force, the principal mission
of which is to promote timely and appropriate enforcement of the pro-
competitive policies of the 1996 Act. Among other duties, the
Enforcement Task Force has been charged with identifying and
investigating actions by common carriers that may be hindering
competition in telecommunications markets and with initiating
enforcement actions where necessary to remedy conduct that is
unreasonable, anti-competitive or otherwise harmful to consumers. The
Enforcement Task Force is considering whether to recommend alternative
forms of complaint adjudications and enforcement actions to ensure that
the goals underlying the pro-competitive policies of the 1996 Act and
the Commission's implementing rules and orders are met. Any such
recommendation may form the basis for a subsequent Report and Order to
be considered by the Commission at a later date.
6. Finally, we note that section 207 of the Act gives any person
the option of pursuing claims for damages against common carriers based
on alleged violations of the Act either at the Commission or before a
federal district court of competent jurisdiction. Thus, parties looking
to recover monetary damages are free to weigh the advantages of
bringing their claims before a federal district court against the
benefits of proceeding under the Commission's expedited complaint
procedures.
II. Background
A. Statutory Framework for Complaints Against Common Carriers
7. Prior to enactment of the 1996 Act, sections 206 to 209 of the
Act provided the statutory framework for our rules for resolving formal
complaints filed against common carriers. Section 206 of the Act
establishes the liability of a common carrier for damages sustained by
any person or persons as a consequence of that carrier's violation of
any provision of the Act. Section 207 of the Act permits any person
claiming to be damaged by the actions of any common carrier either to
make a complaint to the Commission or bring suit in federal district
court for the recovery of such damages. Section 208(a) authorizes
complaints by any person ``complaining of anything done or omitted to
be done by any common carrier'' subject to the provisions of the Act.
Section 208(a) specifically states that ``it shall be the duty of the
Commission to investigate the matters complained of in such manner and
by such means as it shall deem proper.'' Section 209 of the Act
specifies that, if ``the Commission shall determine that any party
complainant is entitled to an award of damages under the provisions of
this Act, the Commission shall make an order directing the carrier to
pay to the complainant the sum to which he is entitled on or before a
day named.''
8. In 1988, Congress added subsection 208(b) to require that
complaints filed with the Commission concerning the lawfulness of a
common carrier's charges, practices, classifications or regulations,
must be resolved by the Commission in a final, appealable order within
twelve months from the date filed, or fifteen months from the date
filed if ``the investigation raises questions of fact of . . .
extraordinary complexity.'' In addition, Congress amended subsection
5(c)(1) to require that such decisions be made by the Commission, not
the Bureau staff pursuant to delegated authority.
B. Complaint Provisions Amended and Added by the 1996 Act
9. As amended or added by the 1996 Act, sections 208, 260, 271, and
275 of the Act all contain deadlines for the Commission's resolution of
formal complaints alleging violations under the particular section by a
common carrier.
10. Section 208. The 1996 Act amended section 208, entitled
``Complaints to the Commission.'' Section 208(b)(1) now mandates that
``the Commission shall, with respect to any investigation under
[section 208(b)] of the lawfulness of a charge,
[[Page 993]]
classification, regulation, or practice, issue an order concluding such
investigation within 5 months after the date on which the complaint was
filed,'' rather than the twelve to fifteen month deadline previously
imposed. In addition, subsection 208(b)(2) provides that any such
investigation initiated prior to enactment of subsection 208(b)(2) must
be concluded within twelve months after the date of enactment.
11. Section 260. The 1996 Act added section 260, entitled
``Provision of Telemessaging Service.'' Section 260(b) provides that:
[T]he Commission shall establish procedures for the receipt and
review of complaints concerning violations of [section 260(a)] or
the regulations thereunder that result in material financial harm to
a provider of telemessaging service. Such procedures shall ensure
that the Commission will make a final determination with respect to
any such complaint within 120 days after receipt of the complaint.
If the complaint contains an appropriate showing that the alleged
violation occurred, the Commission shall, within 60 days after
receipt of the complaint, order the local exchange carrier and any
affiliates to cease engaging in such violation pending such final
determination.
12. Section 271. The 1996 Act added section 271, entitled ``Bell
Operating Company Entry into InterLATA Services.'' Section 271(d)(6)(B)
directs the Commission to ``establish procedures for the review of
complaints concerning failures by [BOCs] to meet conditions required
for approval'' under section 271(d)(3) to provide in-region interLATA
services. Section 271(d)(6)(B) further provides that, ``[u]nless the
parties otherwise agree, the Commission shall act on such complaint
within 90 days.''
13. Section 275. The 1996 Act added section 275, entitled ``Alarm
Monitoring Services.'' Section 275(c) requires the Commission to
``establish procedures for the receipt and review of complaints
concerning violations of [section 275(b)] or the regulations thereunder
that result in material financial harm to a provider of alarm
monitoring service.'' Section 275(c) further provides that:
[S]uch procedures shall ensure that the Commission will make a
final determination with respect to any such complaint within 120
days after receipt of the complaint. If the complaint contains an
appropriate showing that the alleged violation occurred, * * * the
Commission shall, within 60 days after receipt of the complaint,
order the incumbent local exchange carrier * * * and its affiliates
to cease engaging in such violation pending such final
determination.
14. The 1996 Act also added several provisions that reference
complaint proceedings but do not contain resolution deadlines.
15. Section 255. The 1996 Act added section 255, entitled ``Access
by Persons with Disabilities.'' Section 255 requires manufacturers of
telecommunications equipment or customer premises equipment to ensure
that the equipment is ``designed, developed, and fabricated to be
accessible to and usable by individuals with disabilities'' and further
requires any providers of telecommunications services to ``ensure that
the service is accessible to and usable by individuals with
disabilities.'' Section 255 provides that ``[t]he Commission shall have
exclusive jurisdiction with respect to any complaint under this
section'' but imposes no specific resolution deadline for such
complaints. We have initiated a separate proceeding to implement the
provisions of section 255.
16. Section 274. The 1996 Act added section 274, entitled
``Electronic Publishing by Bell Operating Companies.'' Section
274(e)(1) provides that ``any person claiming that an act or practice
of any [BOC], affiliate, or separated affiliate constitutes a violation
of [section 274] may file a complaint with the Commission or bring suit
in federal district court as provided in section 207 of the Act'' and
that a ``[BOC], affiliate, or separated affiliate'' shall be liable for
damages as provided in section 206 of the Act. Similarly, subsection
274(e)(2) permits an aggrieved person to apply to the Commission for a
cease-and-desist order or to a U.S. District Court for an injunction or
order compelling compliance with section 274. None of the complaint
provisions in section 274 contain deadlines for Commission action.
17. In addition, the 1996 Act imposed other requirements on the
BOCs and other common carriers which could lead to formal complaint
actions under section 208. For example, section 254(k), entitled
``Subsidy of Competitive Service Prohibited,'' prohibits
telecommunications carriers from using non-competitive services to
subsidize services that are subject to competition. The 1996 Act also
added section 276, entitled ``Provision of Payphone Service.'' section
276(a) prohibits a BOC from subsidizing its payphone service through
its telephone exchange service operations or its exchange access
operations. Timely, responsive enforcement of provisions such as these
will be necessary to promote the 1996 Act's goal of fostering
competitive telecommunications markets.
18. We tentatively concluded in the NPRM that the provisions of the
1996 Act that specifically refer to complaint procedures do not
diminish the Commission's broad authority to investigate formal
complaints under section 208. AT&T, the sole commenter to address this
issue, agrees with our tentative conclusion, explaining that section
261(a) states that:
nothing in this part [Part II] shall be construed to prohibit the
Commission from enforcing regulations prescribed prior to the date
of enactment of the Telecommunications Act of 1996 in fulfilling the
requirements of this part, to the extent that such regulations are
not inconsistent with the provisions of this part.
According to AT&T, specific references in the Act to the Commission's
duties to resolve formal complaints under section 271 and elsewhere in
the Act affect only the time in which such matters must be decided, but
do not affect the Commission's existing authority under section 208.
19. We find that Congress' actions in specifying certain complaint
procedures and deadlines for those procedures do not restrict the
Commission's authority to resolve formal complaints pursuant to section
208. Section 261 is entitled, ``Effect on Other Requirements'' and
subsection (a) indicates Congress'' intent to leave intact the
Commission's authority except where it would be inconsistent with the
Act itself. We conclude that any references to complaint resolution
deadlines in Title II of the Act are intended to affect only the time
in which specific matters must be decided, and do not decrease the
Commission's existing authority under section 208.
III. Amendments to Rules of Practice and Procedure
A. Overview
20. The focus of this proceeding is on establishing rules and
procedures to implement the expedited complaint provisions set forth by
the 1996 Act and to speed the resolution of all formal complaints in
accordance with the pro-competitive policies underlying the 1996 Act.
Three objectives form the basis for the amendment of the formal
complaint rules, which focus on settlement efforts, enhanced pleading
content, and streamlined procedures.
21. Our first objective is to promote settlement efforts to enable
parties to resolve disputes on their own before resorting to
adjudication before the Commission. We conclude that more dialogue
between parties prior to the complaint process will reduce, and in some
cases, eliminate, the need to file formal complaints with the
Commission. Consequently, we require complainants and defendant
carriers to
[[Page 994]]
certify in their respective complaints and answers that the possibility
of settlement was discussed before the complaint was filed with the
Commission. Certification of settlement attempts will promote pre-
filing discussions and information exchanges among the disputing
parties. In situations in which disputes are not resolved, we expect
that pre-filing discussions and information exchanges will enable
parties to narrow the number and scope of the issues to be presented to
the Commission for resolution under the expedited complaint procedures.
22. Our second objective is to improve the utility and content of
pleadings, so that the complaint, answer, and any necessary reply may
serve as the principal basis upon which the Commission will make a
decision on the merits of the complaint. Under the format and content
rules, absent a waiver for good cause shown, complainants and
defendants must make factual allegations in their pleadings and supply
documentation to support such facts. To the extent that the Commission
determines that additional information is needed in the record to
resolve a complaint fully, the parties will be required to respond
quickly.
23. Our third objective is to streamline the formal complaint
process by eliminating or limiting procedural devices and pleading
opportunities that have contributed to undue delays in formal
complaints. For example, we conclude that we should modify discovery to
increase staff control over the process and limit the filing, timing,
and scope of briefs, as well as streamline the service process by
having complainants serve complaints directly on defendants. In
addition, we eliminate certain pleading opportunities that have been of
little value to the complaint resolution process, including cross-
complaints, counterclaims, motions to make a complaint definite and
certain, and amendments to complaints.
24. To advance these three objectives, we have designed rules to
speed the processing of all formal complaints. By encouraging dialogue
among the parties prior to the filing of formal complaints, many
conflicts will be settled and those complaints that are filed will have
been narrowed in scope. By requiring initial pleadings to contain
complete information and documentation, the parties and the Commission
will be better prepared to resolve disputed issues at an early stage of
the complaint process. And finally, by streamlining and eliminating
unnecessary pleading opportunities, the parties and the Commission will
be able to focus early on the essential activities and information
needed to more quickly resolve formal complaints.
B. Applicability of the Rules
1. Uniform Application of the Rules. a. The NPRM. 25. In the NPRM,
we tentatively concluded that the pro-competitive goals and policies
underlying the short complaint resolution deadlines in the Act should
apply to all formal complaints, not just to those specifically added or
amended by the 1996 Act. The NPRM proposed to implement uniform
procedures and pleading requirements to expedite the resolution of all
formal complaints and sought comment on the need for specialized rules
or procedures for handling complaints arising under particular
provisions of the Act.
b. Comments. 26. BellSouth supports applying the same procedures to
all formal complaints and the National Association for the Deaf
(``NAD'') agrees, stating that separate sets of procedures could be
confusing for complainants. The majority of parties commenting on this
issue, however, argue for special expedited procedures for those
complaints that are subject to specific statutory deadlines, with other
complaints proceeding under more relaxed or flexible timetables.
American Public Communications Council (``APCC'') expresses concern
that the new procedures will place significant burdens on complainants
and defendants. Cincinnati Bell Telephone (``CBT'') states that
sections 260(b), 271(d)(6)(B), and 275(c), which require complaints to
be resolved under ninety or 120-day deadlines, involve very specialized
subject matters, while section 208 complaints may involve any aspect of
telecommunications and therefore parties to section 208 complaints may
need more time to develop and resolve issues. GTE suggests using
separate proceedings for ``fast-track'' cases, stating that the
Commission should wait until it has gained more experience with
application of the provisions of the 1996 Act before attempting to
apply the same expedited procedures to all formal complaints.
27. Some commenters also urge the Commission to establish expedited
procedures for those complaints that are not specifically covered by a
statutory deadline but which, they argue, are needed to ensure full and
fair competition. For example, MCI proposes expedited procedures for
interconnection-related complaints pursuant to sections 251 and 252 of
the Act. Telecommunications Resellers Association (``TRA'') argues that
complaints filed by resale carriers should be processed under expedited
procedures because of the size and resource disparities between
resellers and their underlying network service providers, and because
of the unusual circumstances in which resellers have dual status as
both customers and competitors of network service providers.
28. The NAD references its comments to the Section 255 NOI, 61 FR
50465 (September 26, 1996), in which it proposed that the Commission
create procedures to coordinate with the Department of Justice
(``DOJ'') to determine the appropriate governmental authority for
reviewing complaints that arise out of a lack of access to
telecommunications services for persons with disabilities. Such
complaints could result either from the failure of a place of public
accommodation or state or local governmental entity to follow the
requirements of the Americans with Disabilities Act of 1990 (``ADA'')
or from the failure of a telecommunications manufacturer or service
provider to comply with section 255. The NAD states that its proposal
will aid parties who file section 255 complaints that may raise
jurisdictional issues.
c. Discussion. 29. We affirm our tentative conclusion that uniform
streamlined procedures and pleading requirements should be applied to
all formal complaints filed against common carriers, even those that
are not subject to specific statutory deadlines, with the exception of
complaints alleging violations of section 255. All formal complaints
should be resolved as expeditiously as possible. We find that uniform
procedures and pleading requirements will promote efficiency in the
Commission's administration of complaints and will minimize confusion
among the parties. Uniform procedures for all formal complaints will
promote the Commission's goal of expediting the resolution of these
disputes by allowing the Commission and all parties to follow one set
of rules.
30. We disagree with the commenters who support expedited
procedures only for complaints that have statutory deadlines or that
involve competitive issues for the following reasons. First, we agree
with NAD that having separate sets of procedures for certain types of
complaints would create confusion for parties who might be unclear as
to which rules to follow and might even lead to repeated and
inadvertent violations of our procedural rules. Second, we conclude
that separate complaint procedures would permit
[[Page 995]]
parties to exploit our rules by alleging certain violations in order to
manipulate the time frame or level of evidentiary support required in a
particular complaint. For example, a complainant alleging that a BOC
has violated certain provisions of the Act might be tempted to add an
allegation that the BOC has also failed to meet a condition required
for approval for provision of interLATA services in violation of
section 271, in order to take advantage of the ninety-day resolution
deadline mandated by section 271(d)(6)(B). Third, to the extent that
certain commenters contend that subjecting all complaints to expedited
procedures will unnecessarily work hardships on complainants and
defendants in cases without statutory deadlines, we note that the
Commission has considerable discretion under the amended rules to
accommodate the needs of parties in cases where no statutory deadline
applies. Finally, separate sets of procedures would be administratively
burdensome for the Commission. Not only would it be cumbersome to
promulgate separate sets of procedures, but it would decrease staff
efficiency to apply different procedural rules to different complaints.
31. We defer consideration of NAD's proposal to establish
coordination procedures with the DOJ regarding jurisdiction of
accessibility complaints in this proceeding. We will address this
proposal in our section 255 implementation rulemaking, so as to permit
the Commission to take a comprehensive approach to implementation of
section 255.
2. Applicability of the Section 208(b)(1) Deadline. a. The NPRM.
32. We stated in the NPRM that the new five-month resolution deadline
in section 208(b)(1) applies only to those formal complaints that
investigate the ``lawfulness of a charge, classification, regulation or
practice.'' Section 208(b), as originally added by Congress in 1988 in
the FCCAA, has been interpreted previously as applicable only to
complaints about matters contained in tariffs filed with the
Commission. In other words, under this interpretation, only those
complaints challenging the ``lawfulness of a charge, classification,
regulation or practice'' reflected in a tariff filed with the
Commission pursuant to section 203 of the Act have been viewed as
subject to the resolution deadlines contained in former section 208(b).
b. Comments. 33. Several commenters take a much broader view of the
scope of section 208(b). According to these commenters, the five-month
resolution deadline in section 208(b)(1), in the absence of a specific
statutory resolution deadline such as in sections 260, 275, and 271,
applies to all formal complaints filed pursuant to section 208.
Although the commenters provide little argument to support this view,
the crux of their claim appears to be that the language in section
208(b)(1) referring to ``investigation[s] into the lawfulness of a
charge, classification, regulation or practice'' is broad enough to
cover any unlawful act or omission by a common carrier which could
subject it to a complaint filed pursuant to section 208. Under this
broad interpretation of section 208(b)(1), the Commission would have a
maximum of five months to resolve any formal complaint filed pursuant
to section 208.
c. Discussion. 34. The plain language of the Act establishes that
the class of complaints subject to the deadline in section 208(b)(1) is
narrower than the class of complaints that can be filed under section
208(a). Section 208(a), inter alia, gives any person the right to
complain about ``anything done or omitted to be done'' by a common
carrier in contravention of the Act. The complaint resolution deadline
in section 208(b)(1), on the other hand, refers only to those
complaints involving investigations into the lawfulness of a ``charge,
classification, regulation, or practice'' of a carrier.
35. While there is little guidance in section 208 itself for
defining the subset of complaints covered by section 208(b), we
conclude that section 208(b)(1) covers complaints relating to the
lawfulness of those matters required to be in tariffs. Stated another
way, the deadline covers complaints relating to the lawfulness of
matters with respect to which the Commission could exercise its
prescription power under section 205. The deadlines in sections
204(a)(2)(A) (pertaining to the nature and timing of tariff
investigations by the Commission) and 208(b)(1) are identical in both
the Act, as amended by the FCCAA, and the 1996 Act. In addition, the
provision in the 1996 Act establishing the effective date for the
changes to the tariff investigation and complaint resolution deadlines
specifically states that the new deadlines in sections 204 and 208(b)
shall apply only with respect to charges, practices, classifications,
or regulations ``filed'' on or after one year after the date of
enactment. The use of the word ``filed'' connotes a tariff filing
pursuant to section 203 of the Act because it is generally pursuant to
section 203 that a ``charge, classification, regulation, or practice''
would be ``filed'' with the Commission.
36. We note, moreover, that the 1996 Act added specific resolution
deadlines for complaints filed pursuant to sections 260, 271, and 275.
It may be inferred that, because Congress added specific deadlines in
certain sections of the 1996 Act for resolving identified types of
complaint actions, and was silent as to deadlines for resolving
complaints arising from other sections of the Act, Congress did not
intend to mandate deadlines for resolving all complaints.
37. We therefore conclude that section 208(b) applies only to
formal complaints which involve ``investigation[s] into the lawfulness
of a charge, classification, regulation or practice'' contained in
tariffs filed with the Commission. In light of our complete detariffing
policy for the domestic interstate, interexchange services of
nondominant interexchange carriers and our permissive detariffing
policy for competitive access providers and competitive LECs, however,
we conclude that the interpretation should be modified to ensure that
our forbearance decisions do not eviscerate Congress' intent in
establishing the five-month resolution deadline for 208(b)(1)
complaints. As noted above, the application of the 5-month 208(b)(1)
deadline to investigations concerning a carrier's ``charge,
classification, regulation, or practice'' is triggered by the filing of
any such charge, classification, regulation or practice with the
Commission. To the extent that our detariffing decisions relieve
carriers of any obligations to make such filings, it could be argued
that complaints about matters not filed with the Commission by carriers
are not encompassed by section 208(b)(1). We conclude that Congress
clearly did not intend this result. We hold, therefore, that the
section 208(b)(1) deadline shall apply to any complaint about the
lawfulness of matters included in tariffs filed with the Commission,
and those matters that would have been included in tariffs but for the
Commission's forbearance from tariff regulation. For example,
complaints alleging that a carrier,through its non-tariffed charges,
has failed to meet the rate integration or rate averaging requirements
of section 254(g) of the Act would be subject to the section 208(b)(1)
deadline. Similarly, complaints contending that a carrier has imposed
unjust and unreasonable terms and conditions on the provision of a
service that would have been tarrifed but for our forbearance decision
would fall within the requirements of section 208(b)(1).
C. Pre-Filing Procedures and Activities
38. In the NPRM we asked parties to identify specific pre-filing
activities available to potential complainants and
[[Page 996]]
defendants that could serve to settle or narrow disputes, or facilitate
the compilation and exchange of relevant documentation or other
information prior to the filing of a formal complaint with the
Commission. It has been our experience that there is generally little
exchange of information or discussion of the dispute between parties
prior to the filing of a formal complaint and that such exchange of
information and discussion of a dispute will often lead to settlement.
We stated in the NPRM that our intent was to adopt rules or procedures
that would promote actions that could either foster the resolution of
disputes prior to filing or narrow the scope of the issues to be
resolved in formal complaints.
1. Certification of Settlement Attempts. a. The NPRM. 39. We
tentatively concluded in the NPRM that we should require that a
complainant certify in its complaint that it discussed, or attempted to
discuss, in good faith the possibility of settlement with the defendant
carrier's representative(s) prior to filing the complaint, and,
further, that failure to comply with this certification requirement
would result in dismissal of the complaint.
b. Comments. 40. Most commenters support the proposal to require a
complainant to certify in its complaint that it discussed, or attempted
to discuss, the possibility of settlement with the defendant carrier
prior to filing its complaint. These commenters agree that settlement
should be encouraged and that the certification requirement would
provide an additional incentive for parties to settle or narrow
disputed issues, thereby resulting in fewer and better-focused
complaints. GST Telecom, Inc. (``GST''), KMC Telecom, Inc. (``KMC''),
MFS Communications, Co. (``MFS''), and TRA additionally suggest that
answers should be required to contain certification that the parties
discussed, or attempted to discuss, the possibility of settlement prior
to the filing of the formal complaint. In their Joint Reply, Jones
Intercable, Inc., Centennial Cellular Corp., Texas Cable and
Telecommunications Association, Cable Television Association of
Georgia, South Carolina Cable Television Association, and Tennessee
Cable Telecommunications Association (collectively, the ``Cable
Entities'') recommend mirroring the Commission's pole attachment
procedures, which require a complaint to either summarize all steps
taken to resolve the dispute prior to filing or explain why no steps
were taken. AT&T opposes such a pre-certification requirement, arguing
that it would unduly restrict a party's ``unconditional statutory
right'' to file a section 208 complaint, citing AT&T v. FCC as support
for its proposition. BellSouth disagrees with AT&T, arguing that there
is no section 208 right to file a complaint that is not based on facts,
and that encouraging pre-complaint negotiations will facilitate all
parties' understanding of the facts. Bell Atlantic, NYNEX, and Pacific
Telesis Group (``PTG'') also disagree with AT&T's argument, stating
that AT&T v. FCC deals only with the Commission's prohibition of tariff
revisions for certain services and does not deal with section 208
complaints. Competitive Telecommunications Association (``CompTel'')
opposes the requirement of certification of settlement attempts,
arguing that parties already have sufficient motivation to settle their
disputes and that mandatory settlement discussions might force some
parties to accept unfavorable settlements.
c. Discussion. 41. We conclude that both the complainant and
defendant, as part of the complaint and answer, respectively, must
certify that they discussed, or attempted in good faith to discuss, the
possibility of settlement with the opposing party prior to the filing
of the complaint. We agree with GST, KMC, MFS, and TRA that defendant
carriers should be given equal responsibility for exploring settlement
options prior to the filing of a formal complaint. To help facilitate
meaningful discussion between disputing parties, we will adopt a
requirement that the complainant mail a certified letter outlining the
allegations that form the basis of the complaint it anticipates filing
with the Commission to the defendant carrier that invites a response
within a reasonable period of time. We further conclude that the rule
setting forth the certification requirement shall be modeled on the
Commission's existing pole attachment procedures in Sec. 1.1404(i) of
the rules. Therefore, each settlement certification must include a
brief summary of all steps taken to resolve the dispute prior to
filing. If no steps are taken, then each such certification must state
the reason(s) for such failure to conduct settlement discussions. We
find that mandating settlement discussions prior to filing a formal
complaint will result in (1) more disputes being settled amicably, and
(2) the scope of the issues in dispute in formal complaints being
narrowed where possible.
42. We disagree with CompTel's assertion that a rule requiring
mandatory settlement discussions could be used to coerce parties into
accepting unfavorable settlements. This rule requires good faith
settlement attempts, not settlement itself. Furthermore, requiring good
faith settlement attempts will not impose undue restrictions on the
right of any person to file a complaint with the Commission. We
disagree with AT&T's interpretation of the ruling in AT&T v. FCC as it
applies to the issues under consideration here. In AT&T v. FCC, the
court held that the Commission's requirement that a carrier obtain
special permission, i.e., prior Commission approval, before filing a
tariff under section 203 unlawfully interfered with the carrier's right
to file a tariff. In addition to the fact that AT&T v. FCC considers
the application of section 203, not section 208, the issue considered
in AT&T v. FCC is distinguishable from the issue before us in that the
pre-filing requirements we impose here only dictate that parties
explore settlement possibilities and do not require any Commission
approval prior to filing a formal complaint. If settlement attempts are
unsuccessful, the complainant is free to file a formal complaint. The
certification requirement will benefit the parties and the Commission
by requiring the parties to discuss the facts and issues in dispute
prior to the filing of the complaint. Such requirement may, therefore,
lead to an informal resolution of the dispute or, at the very least,
may reduce or clarify the number and scope of the issues in dispute,
consistent with Congress' intent to expedite the resolution of
disputes.
2. Neutral Industry Committee. a. The NPRM. 43. We also sought
comment on whether a committee composed of neutral industry members
would serve a needed role or useful purpose in addressing disputes over
technical and other business disputes, before parties bring their
disputes to the Commission in the form of formal complaints. We asked
commenters to address the extent to which there would be a need for
outside experts to deal with technical issues that are likely to arise
in formal complaints and whether, if such a need exists, the use of a
committee of such experts in the form of a voluntary preliminary
alternative dispute resolution (``ADR'') procedure would expedite the
resolution of complaints
b. Comments. 44. Most commenters oppose the creation of an industry
committee. Several parties argue that it would be impossible to
construct a neutral committee, PTG and TRA argue that the use of such a
committee would delay the resolution of important marketplace issues,
and AT&T and GTE argue that the committee would lack the expertise to
handle a wide variety of disputes. CBT, Communications and Energy
Dispute Resolution Associates (``CEDRA''), and NYNEX contend that
[[Page 997]]
such options are already available to parties. NYNEX additionally
states that complaints before the Commission typically involve disputes
between individual companies, rather than broad issues affecting the
industry. Some commenters, however, support the proposal. Association
of Telemessaging Services International (``ATSI''), BellSouth,
Southwestern Bell Telephone (``SWBT''), and United States Telephone
Association (``USTA'') support the use of an industry committee to
assist in resolving technical and business disputes. BellSouth added
that an industry committee could be used in conjunction with ADR
mechanisms. ATSI asserts that committee proceedings would have to be
completed within clearly established deadlines to prevent delay in
resolving disputes involving competitive issues and to ensure
compliance with the statutory complaint resolution deadlines. In
addition, GST, KMC, and MFS suggest permitting the parties and the
Commission to utilize such a committee during the complaint process, as
well as at the pre-filing stage, to resolve certain factual issues.
c. Discussion. 45. We decline to establish a committee of neutral
industry members to resolve disputes over technical and other business
issues, before parties file such disputes with the Commission as formal
complaints. We note that the majority of commenters oppose this
proposal. Several factors weigh against establishing such a committee.
First, because the committee's decisions would not be binding on the
Commission, it is possible that the committee and the Commission might
rule differently on identical issues. The usefulness of committee
decisions to resolve disputes would be diminished by such uncertainty,
as a losing party would have little incentive to accept the committee's
recommendation. Second, we agree with commenters that it would be
difficult to establish a standing committee with sufficient expertise
to resolve a range of technical and business issues because of the
breadth of knowledge and expertise that would be required. Third, we
agree with commenters that it would be administratively burdensome to
assemble a new committee for each conflict parties sought to submit to
such committee. Finally, we agree with the commenters who argue that
the potential for conflicts of interest among the committee members is
too great to be able to provide a guarantee of neutrality.
3. Additional Commenters' Suggestions. a. The NPRM 46. In the NPRM,
we invited commenters to suggest additional pre-filing requirements or
procedures to help settle or narrow disputes, or facilitate the
compilation and exchange of relevant documentation or other
information.
b. Comments. 47. ATSI, NYNEX, and USTA suggest that formal ADR
efforts be made a prerequisite to filing a complaint, while MCI and
Sprint oppose such a proposal. MCI, ICG Telecom Group (``ICG''), and
Sprint suggest that parties be required to begin their information
exchange before a complaint is filed, in order to prepare for the rapid
pace of the complaint process. PTG opposes this suggestion, arguing
that requiring such information exchanges would lead to fishing
expeditions and raise confidentiality concerns. Bell Atlantic proposes
that a potential complainant be required to provide the defendant
carrier with a statement of its claim and specify documents and
information that it believes would be material to the resolution of the
dispute, and that the carrier be required to respond in full within a
reasonable period of time before a complaint is filed. Similarly, CEDRA
and BellSouth suggest that complainants be required to serve advance
copies of their complaints on defendant carriers prior to filing such
complaints with the Commission. Finally, CompTel, Nextlink and various
cable entities suggest that the Commission offer binding arbitration or
mediation as an alternative to formal complaints, arguing that
Commission staff would be more persuasive and knowledgeable than
outside mediators or arbitrators.
c. Discussion. 48. We decline to adopt these proposals because, for
the most part, they raise potential problems that would outweigh their
potential benefits. We reject suggestions that would impose rigid
requirements for pre-filing activities. We find that these proposals
could either stifle the parties' ability to develop creative solutions
to their differences or delay unnecessarily the filing of complaints,
or both. For example, we agree with MCI and Sprint that requiring
formal ADR efforts prior to the filing of a formal complaint could
permit defendant carriers to delay the filing of formal complaints to
the detriment of customers and competitors alike. For the same reason,
we reject the suggestions by MCI, ICG, and Sprint that we should
mandate the exchange of documents and materials by potential
complainants and defendant carriers prior to the filing of a formal
complaint. Although the proposals of Bell Atlantic, BellSouth, and
CEDRA, to require the exchange of specific information identifying
claims and key facts in advance of the filing of the formal complaint,
would promote pre-filing discussions, we conclude that parties should
be afforded the widest possible latitude in conducting their settlement
efforts and not be subjected to rigid requirements. We also reject the
proposals of CompTel, Nextlink, and the cable entities to require the
Commission to arbitrate or mediate disputes at the request of the
disputing parties as an alternative to formal complaints. Such a
requirement would unnecessarily tax the Commission's resources when
there are many qualified ADR experts outside the Commission. We note
that Commission staff will work with industry members and formal
complaint parties to resolve disputes informally, both before and after
formal complaints have been filed. We see little benefit, however, in
requiring the staff to conduct such mediation or arbitration efforts in
all cases.
D. Service
49. Under section 208 of the Act and the Commission's existing
complaint rules, the staff is responsible for serving formal complaints
on defendant carriers. Currently, all formal complaints must be
initially filed with the Mellon Bank in Pittsburgh, Pennsylvania;
forwarded by the Bank to the Commission's Secretary; and then
distributed to the Common Carrier Bureau. The Common Carrier Bureau
then forwards complaints against common carriers and complaints against
international telecommunications providers to the Common Carrier
Bureau's Enforcement Division; complaints against wireless carriers are
forwarded to the Wireless Telecommunications Bureau. As a result, ten
days or more may pass before the staff receives official copies of a
complaint, reviews it for minimum compliance with the rules, and serves
it on the defendant carrier(s). It has been common for a defendant
carrier to receive a complaint twenty days after it was filed with the
Commission. Pleadings filed subsequent to the complaint are currently
served by regular U.S. mail, which may delay actual receipt of such
pleadings from three days to a week. Because of the new ninety to 120-
day statutory deadlines, the NPRM proposed to eliminate delays
associated with the current filing and service procedures by
streamlining the service process.
1. Personal Service of Formal Complaints on Defendants. a. The
[[Page 998]]
NPRM. 50. In the NPRM we sought comment on our proposals to modify the
service of formal complaints. We proposed to authorize or require a
complainant to effect service simultaneously on the following persons:
the defendant carrier, the Commission, and the appropriate staff office
at the Commission, i.e., the Chief, Formal Complaints and
Investigations Branch, Enforcement Division, Common Carrier Bureau; the
Chief, Compliance and Litigation Branch, Enforcement and Consumer
Information Division, Wireless Telecommunications Bureau; or the Chief,
Telecommunications Division, International Bureau. With regard to
service on the defendant, we proposed that a complainant would
personally serve the complaint on an agent designated by the defendant
carrier to receive such service. We proposed that the answer period
would begin to run once the complaint has been served by the
complainant on the defendant.
51. We also noted that requiring complainants to serve complaints
directly on defendants would eliminate the staff's initial review of
the complaint prior to the defendant's receipt of the complaint. To
alleviate concerns about service of deficient complaints, the NPRM
proposed to require that parties submit a completed checklist or
``intake'' form with each copy of the formal complaint to indicate: (1)
that the complaint satisfies minimum format and content requirements;
(2) that the complaint meets the various threshold requirements for
stating a cause of action under the Act and the Commission's rules; and
(3) the statutory provisions allegedly violated and any applicable
statutory resolution deadline. We based this proposal on our belief
that such an intake form could be a useful tool both to speed the
preparation and filing of complaints and to avoid or reduce the time
and resources involved in processing procedurally defective or
substantively insufficient complaints. We further noted that the intake
form could serve another useful purpose, by quickly identifying for the
staff and defendant carrier the relevant statutory provisions and any
associated statutory time constraints.
b. Comments. 52. The commenters generally support the proposal to
require parties to serve complaints simultaneously on defendants, the
Office of the Secretary, and the Bureau responsible for processing the
complaint. BellSouth, GTE, and CBT, however, are concerned that
defendants may be required to respond to deficient complaints if the
Commission eliminates its practice of reviewing complaints prior to
serving them on defendants. By contrast, MCI argues that Commission
review of a complaint is unnecessary because a defendant would
undoubtedly raise the issue if a complaint was deficient. CompTel
suggests that the Commission send the defendant a notice of receipt of
the complaint to safeguard against faulty service. BellSouth states
that section 208(a) mandates that only the Commission may serve
complaints on defendants, and suggests that the complainant serve the
defendant with a copy of the complaint and notice of intent to file
prior to the filing of the complaint with the Commission. AT&T and
NYNEX state that, while section 208(a) does require the Commission to
serve complaints on defendants, this requirement is fulfilled by
allowing complainants to serve complaints on defendants as agents of
the Commission for that limited purpose only. PTG asks the Commission
to clarify that personal service is required for the complaint.
53. Almost all of the commenters, including ATSI, BellSouth, CBT,
CompTel, GST, GTE, KMC, MFS, and TRA, support the proposal to require
complainants to submit a completed checklist or ``intake'' form with
each copy of the formal complaint. ATSI stated that using ``check-off
boxes'' to clearly indicate the specific complaint category utilized
would assist all parties and the Commission in determining quickly the
special standards and applicable deadlines. BellSouth additionally
suggests that the form include a waiver of the section 271(d)(6)(B) 90-
day resolution deadline. MCI argues that this form would be useless
because a party filing a defective complaint would be unlikely to
complete this form correctly.
c. Discussion. 54. We conclude that complainants shall be required
to effect personal service of the complaint on the defendant carrier/
designated agent simultaneously with the filing of the complaint with
the Commission's Secretary, the Chief of the division or branch
responsible for handling the complaint within the Bureau responsible
for handling the complaint, and the Mellon Bank. The complainant shall
serve two copies of the complaint with the Chief of the division or
branch responsible for handling the complaint within the Bureau
responsible for handling the complaint. The Chief will then forward one
of those copies to the defendant, in compliance with the mandate in
section 208(a) that complaints ``shall be forwarded by the Commission''
to the defendant. The allowable time period for filing an answer begins
to run on the date the complainant serves the complaint on the
defendant. Because the Common Carrier Bureau coordinates with the
International Bureau to handle international telecommunications
complaints, any formal complaint that is filed with the International
Bureau must also be filed simultaneously with the Chief, Formal
Complaints Branch, Enforcement Division, Common Carrier Bureau.
Requiring service of the complaint on the defendant carrier
simultaneously with filing the complaint with the Commission will
enable the parties and the Commission to begin prompt resolution of the
complaint, by eliminating delays that existed under the former rules.
This requirement satisfies the Commission's goal of expediting the
processing of formal complaints.
55. After consideration of commenters' concerns regarding notice to
the defendant in the event of defective service of the complaint, we
conclude that the Commission will send each defendant notice of receipt
of the complaint as a precaution against defective service. Upon
receipt of the complaint, the Commission shall promptly send notice of
receipt of the complaint by facsimile transmission to the defendant. In
addition to mailing a copy of the complaint to the defendant, the staff
will send to all parties a schedule detailing the date the answer is
due and the date of the initial status conference. The date of service
of the formal complaint upon the defendant shall be presumed to be the
same date as service on the Commission. Where, however, a complainant
fails to properly serve the complaint on the defendant, the complaint
will be dismissed without prejudice.
56. We further conclude that the complainant must file the
complaint, along with the appropriate fee, with the Mellon Bank on the
same day that it serves the complaint on the Commission and the
defendant. Although this requirement was not specifically proposed in
the NPRM, we find that requiring the complaint to be filed with the
Mellon Bank on the same day as service on the defendant and the
Commission is a natural extension of the proposal in the NPRM to
require simultaneous service of the complaint on the defendant and the
Commission. Such requirement is further justified by the fact that the
date on which the complaint is filed with the Mellon Bank is the
official commencement date of the complaint with the Commission. Thus,
the date on which the complaint is filed with the Mellon Bank is the
date on which any statutory deadlines begin to
[[Page 999]]
run and timely prosecution of such complaints requires service on the
defendant at the earliest date possible. Additionally, requiring
delivery of the complaint and fee payment to the Mellon Bank by the day
of service of the complaint on the Commission and defendant will help
the Commission to determine quickly whether the fee has been properly
paid. We also require the complainant to attach to each copy of the
intake form, a photocopy of its fee payment (check, etc.) as well as a
certificate of service. Attachment of a copy of the fee payment will
provide some assurance to the Commission and a defendant that payment
was made. Where a fee is not properly paid, the Commission will notify
both parties promptly that the complaint has been dismissed without
prejudice.
57. BellSouth, GTE, and CBT raise some valid concerns about the
possibility of defendants having to respond to deficient complaints
under our new service requirements. To address these concerns, we
require a complainant to submit a completed intake form with its formal
complaint to indicate that the complaint satisfies the procedural and
substantive requirements under the Act and our rules. The completed
intake form shall identify all relevant statutory provisions, any
relevant procedural history of the case, and, in the case of a section
271(d)(6)(B) complaint, whether the complainant desires to waive the
ninety-day resolution deadline. We disagree with MCI's assertion that a
complainant who files a defective complaint will probably be unable to
fill out the intake form properly. Rather, we find that the intake form
will serve as a checklist to guide complainants who may be unfamiliar
with the necessary components of a formal complaint and in that way
reduce the number of defective complaints filed. We conclude further
that this requirement will permit the Commission to eliminate the delay
associated with the initial review of a complaint. To the extent that
frivolous complaints are filed, the intake form requirement will assist
in weeding out such complaints prior to Commission review. The form
will identify for the Commission staff any relevant statutory
provisions and associated deadlines. Furthermore, the staff will be
alerted if there is relevant procedural history that will require
review of related non-Commission records by the staff. We note that a
defendant is not relieved of its obligation to file and serve its
answer on time by the fact that a complainant failed to correctly
complete the intake form.
58. In addition, we reject NAD's proposal to permit service of
complaints by facsimile transmission because we conclude that service
of the complaint must be accomplished in the most reliable manner
possible. Because we are requiring the defendant to submit its answer
within twenty days of receipt of the complaint, any delay or
uncertainty in the receipt of the complaint and associated documents
through facsimile transmission could unduly infringe on the defendant's
due process rights.
2. Expediting Service Generally. a. The NPRM. 59. In the NPRM, we
proposed to require service of all documents filed subsequent to the
complaint (answer, motions, briefs, etc.) by overnight delivery.
Alternatively, parties would be permitted to serve pleadings by
facsimile transmission, to be followed by hard copies sent by regular
mail delivery.
60. We further proposed to establish and maintain an electronic
directory, available on the Internet, of agents authorized to receive
service of complaints on behalf of carriers that are subject to the
provisions of the Act and of the relevant Commission personnel who must
be served. We noted that section 413 of the Act requires all carriers
subject to the Act to designate in writing an agent in the District of
Columbia for service of all process. The proposed directory would list,
in addition to the name and address of the agent, at least one of the
following: his or her telephone or voice-mail number, facsimile number,
or Internet e-mail address. We sought comment on this proposal and on
what information should be included within the service directory.
61. Finally, we recognized that the practice of routing formal
complaints against wireless telecommunications providers was unwieldy
and time-consuming. We noted that under the current rules, wireless
complaints are routed from the Common Carrier Bureau lock box at the
Mellon Bank in Pittsburgh to the Commission's Secretary, who forwards
the complaint to the Formal Complaints and Investigations Branch of the
Common Carrier Bureau's Enforcement Division, which then reviews and
forwards the complaints to the Wireless Telecommunications Bureau.
Therefore, we sought comment on our proposal to revise our rules to
provide for a separate lock box at the Mellon Bank for the receipt of
complaints against wireless telecommunications service providers.
b. Comments. 62. Commenters strongly support these proposals.
BellSouth suggests that facsimile service would be facilitated by
requiring pleading signature blocks to include facsimile and phone
numbers. SWBT additionally suggests that service include delivery by
certified mail. ICG argues that service should be by hand delivery or
overnight mail only. GST, KMC, MFS, and NAD suggest permitting service
by Internet, with NAD particularly encouraging Internet or facsimile
service of complaints and related documents to facilitate service by
consumers with disabilities. CBT opposes service by Internet because of
technical difficulties and problems with verification. CBT asks the
Commission to clarify that it will take responsibility for updating the
electronic directory and make allowances for improper service due to
mistakes in the directory. America's Carriers Telecommunication
Association (``ACTA'') suggests that carriers be able to designate
someone other than an agent located in the District of Columbia for
receipt of service, arguing that limiting service to what in many cases
will be an ``artificial agent'' in the District of Columbia is
inefficient in light of the availability of national overnight
delivery. MCI suggests that a paper directory of service agents be kept
in the Secretary's office for those parties lacking Internet access.
c. Discussion. 63. We conclude that parties must serve documents or
pleadings filed subsequent to the complaint by either hand delivery,
overnight delivery, or facsimile transmission followed by mail
delivery. Any facsimile transmission or hand delivery must be completed
by 5:30 p.m., local time of the recipient, in order to be considered
served on the date of receipt. Service by overnight delivery will be
deemed served the business day following the date it is accepted for
overnight delivery by a reputable overnight delivery service. Although
we are permitting service of pleadings subsequent to the complaint to
be by facsimile transmission, we also require that facsimile service be
accompanied by mailed hard copies to alleviate the effects of possible
faulty facsimile transmission. These requirements will ensure timely
and verifiable service. To facilitate facsimile delivery, we require
pleading signature blocks to include facsimile and telephone numbers,
as suggested by BellSouth.
64. We decline to authorize service by Internet at this time
because we have received insufficient comments on the issue, given the
significance of permitting electronic filing or service of complaint
pleadings. We may revisit this issue at a later date, following our
consideration of possible procedures for
[[Page 1000]]
the electronic filing of documents in rulemaking proceedings in GC
Docket 97-113.
65. We also reject SWBT's proposal to deliver pleadings by
certified mail. Although SWBT presumably offered this suggestion to
improve verification of service rather than speed of service, we did
not seek comment on verification procedures in the NPRM because we have
not found verification of service to be a significant problem.
66. Although we considered establishing an electronic directory of
agents designated by carriers to receive service of process, we decline
to establish such a directory at this time. We have concluded that more
review is needed to determine the most efficient means for collecting
the data necessary to establish such a directory. This data collection
may be combined with other collections of data from common carriers by
the Commission in the future. The Commission intends to reconsider this
issue in conjunction with streamlining its other data collection
procedures.
67. We recognize the need to provide complainants with the
information necessary to effect personal service on defendant carriers
as required by our rules. Accordingly, the Commission will provide
access to a listing of agents designated by carriers to receive service
of process in the Office of the Commission Secretary. In order to
establish this listing, all common carriers are required to designate
service agents within the District of Columbia, although they may
additionally identify an alternative service agent outside the District
of Columbia. For each designated agent for service of process, each
carrier is required to identify its name, address, telephone or voice-
mail number, facsimile number, and Internet e-mail address if
available. In addition, the carrier shall identify any other names by
which it is known or under which it does business, and, if the carrier
is an affiliated company, its parent, holding, or management company.
This information shall be provided to the Commission by filing it with
the Formal Complaints and Investigations Branch of the Common Carrier
Bureau. Parties are required to notify the Commission within one week
of any changes in their information. We note that ACTA's proposal to
permit designation of service agents outside of the District of
Columbia was based on the incorrect premise that overnight delivery
would fulfill our requirement of having the complainant personally
serve the complaint on the defendant. It will not. Only hand delivery
constitutes personal service for the purposes of our service
requirement. We note, however, that the complainant is not required to
hand deliver the complaint to the Commission Secretary, the Chief of
the division or branch responsible for handling the complaint within
the Bureau responsible for handling the complaint, or the Mellon Bank.
68. We establish a separate lock box at the Mellon Bank in
Pittsburgh for the receipt of complaints against wireless
telecommunications service providers. Currently, all formal complaints
against common carriers, including Wireless Telecommunications Bureau
complaints and International Bureau complaints, are filed in the
lockbox of the Common Carrier Bureau at the Mellon Bank. Because the
Common Carrier Bureau coordinates with the International Bureau to
handle international telecommunications complaints, filing the
International Bureau's complaints in the Common Carrier Bureau's
lockbox does not delay the complaint process. Providing the Wireless
Telecommunications Bureau with its own lockbox, however, will both
expedite the delivery of the complaint and verification of fee payment
to the Wireless Telecommunications Bureau, and relieve the Common
Carrier Bureau of the responsibility of reviewing wireless complaints
for routing to the Wireless Telecommunications Bureau.
E. Format and Content Requirements
69. The short resolution deadlines contained in the Act place
greater burdens on parties to provide facts and legal arguments in
their respective complaints and answers to support or defend against
allegations of misconduct by common carriers. Similarly, the short
resolution deadlines place greater demands on the Commission and its
staff to expedite the review and disposition of these complaints.
70. The Commission's rules have always required fact-based
pleadings. That is, all complaints, answers and related pleadings are
required to contain complete statements of fact, supported by relevant
documentation and affidavits. In actual practice, however, many parties
file what amount to ``notice'' pleadings similar to filings that would
be made in federal district court. Both complainants and defendants
have placed substantial reliance on self-executing discovery and
additional briefing opportunities to present their respective claims
and defenses to the Commission.
71. A principal goal of this rulemaking that was set forth in the
NPRM was to improve the utility and content of the complaint and answer
by requiring complainants and defendants to exercise diligence in
compiling and submitting full legal and factual support in their
initial filings with the Commission. The proposals in the NPRM were
designed to promote fact-based pleadings and to shift the focus of
fact-finding away from costly, time-consuming discovery and towards the
pre-filing and initial complaint and answer periods.
1. Support and Documentation of Pleadings. a. The NPRM. 72. In the
NPRM, we proposed to require that any party to a formal complaint
proceeding must, in its complaint, answer, or any other pleading
required during the complaint process, include full statements of
relevant facts and attach to such pleadings supporting documentation
and affidavits of persons attesting to the accuracy of the facts stated
in the pleadings. This would effectively prohibit defendants from
making general denials in their answers. We proposed to require a
complainant to append to its complaint documents and other materials to
support the underlying allegations and requests for relief, and
tentatively concluded that failure to append such documentation would
result in summary dismissal of the complaint. Although our rules
already required each complainant to provide a complete statement of
the facts and description of the nature of the alleged violation, we
tentatively concluded that we should require more specifically that a
complainant include a detailed explanation of the manner in which a
defendant has violated the Act, Commission order, or Commission rule in
question in the formal complaint. Such a rule, for example, would
require a complainant alleging that a BOC has ceased to meet any of the
conditions that were required for approval to provide interLATA
services pursuant to section 271(c)(2)(B) of the Act to include in its
complaint a detailed explanation of the manner in which the defendant
BOC has ceased to meet such condition or conditions, along with any
associated documentation. The NPRM also sought comment on whether we
should prohibit complaints that rely solely on assertions based on
``information and belief.'' We stated that, while assertions based on
information and belief may not be useful in deciding on the merits of a
complaint, prohibiting such assertions might inhibit a complainant's
ability to present claims of unlawful behavior against carriers under
applicable provisions of the Act.
73. We proposed to require the complaint, answer, and any
authorized reply include two sets of additional information: (1) the
name, address, and
[[Page 1001]]
telephone number of each individual likely to have discoverable
information relevant to the disputed facts alleged with particularity
in the pleadings, identifying the subjects of information; and (2) a
copy of, or a description by category and location of, all documents,
data compilations, and tangible things in the possession, custody, or
control of the party that are relevant to the disputed facts alleged
with particularity in the pleadings. We noted that this proposal, which
would enable the Commission and parties to identify quickly sources of
information, comported with an analogous requirement under the Federal
Rules of Civil Procedure. We also sought comment on what benefits, if
any, would be realized by the parties or the Commission by requiring
the identified relevant documents to be filed with the Commission along
with the complaint and answers.
74. The NPRM proposed to require parties to append copies of
relevant tariffs or tariff provisions to their complaints, answers, and
replies, noting that the current rules only encourage parties to append
such tariffs. The NPRM also proposed to modify the rules to include
expressly pleadings filed solely to effect delay in the prosecution or
disposition of a complaint as filings for improper purpose within the
meaning of Sec. 1.734 of our rules.
b. Comments. 75. Most commenters, including AT&T, BellSouth and
TRA, strongly support the proposals to require all pleadings to include
complete facts and documentation. AT&T states that supporting
affidavits and documentation are ``critical to understanding the
parties' positions on the matters at issue.'' NYNEX agrees with the
observation in the NPRM that ``[t]ypically, complainants file `bare
bones' complaints with numerous allegations, but with little or no
documentation'' and that the proposal would allow the Commission to
``process complaints more quickly, since it would have access to the
relevant information from the beginning[.]'' BellSouth suggests that
the Commission impose requirements similar to its rules for pole
attachment complaints which require detailed, fact-based complaints,
supported by extensive documentation and verifications detailing the
alleged violations.
76. Several commenters, including CBT, NYNEX, and PTG, only support
our proposals regarding complaints, and oppose our proposals regarding
answers. They state that the format and content proposals for
complaints are not overly burdensome because complainants control the
timing of the filing of the complaint and can gather information prior
to bringing the complaint. They oppose the format and content proposals
with regard to answers, however, because they argue that the
requirements will be too onerous for defendants who will have little
time to respond with such specificity in their answers, especially in
light of our proposal to reduce the time to file answers to twenty
days.
77. AT&T agrees that general denials should be prohibited. MCI,
however, contends that general denials should be permitted where a
complainant has been uncooperative with the defendant prior to the
filing of the complaint and the defendant lacks the necessary
information upon which to respond to the complaint in detail. The cable
entities state that general denials should be permitted in accordance
with the Federal Rules of Civil Procedure (``FRCP''), subject to Rule
11 sanctions, if the party intends in good faith to controvert all the
averments of a pleading or specific paragraph.
78. AT&T and PTG endorse the proposal to prohibit assertions based
solely on information and belief, stating that it would help to reduce
the number of frivolous complaints, including those brought to harass
defendants or as fishing expeditions. Many commenters, however,
including APCC, Bell Atlantic, CompTel, MCI, NYNEX, NAD, TRA, and
Teleport Communications Group (``TCG''), argue that allowances should
be made for situations in which a complainant will have difficulty
obtaining access to information that may be in the sole possession of a
defendant or third parties who might be unwilling to relinquish such
information. APCC, GTE, ICG, and TCG propose that information and
belief allegations should be permitted if the complainant pleads with
particularity facts that would establish a credible case, or supplies
affidavits stating that the necessary information is in the possession
of the defendant or an uncooperative third party. ATSI, KMC, and MFS
oppose the proposal because of the potential hardship on small or
emerging businesses. APCC and ICG also seek clarification on whether
the Commission's proposal is to prohibit complaints based solely on
information and belief, or only those allegations based solely on
information and belief.
79. AT&T and PTG note that the identification of individuals with
discoverable information should not include phone numbers because such
individuals should be contacted only through counsel. Regarding the
document production proposal, Bechtel & Cole and Ameritech support
requiring all relevant documents to be produced to the opposing party
and the Commission. Most commenters, however, such as CBT, BellSouth,
MCI, the cable entities, and PTG, express concern that the information
produced might be overbroad and argue that requiring the filing of
numerous documents with only tangential relevance to the dispute is
likely to overwhelm the Commission with materials of marginal or no use
in resolving the complaint. CBT notes that many federal courts have
opted out of compliance with the federal rule and that it would be more
efficient to respond to discovery requests than to identify and gather
the universe of available information. MCI questions whether this
requirement will be useful, stating that a party would identify as
relevant only those documents already attached as documents upon which
that party intends to rely and that party would be unable to guess at
what materials another party might find relevant. ACTA, BellSouth, and
GTE propose requiring parties to file only the documents relied upon
concurrently with the complaint and answer and any subsequently filed
brief, rather than requiring the production of all potentially relevant
documents. GST, KMC, and MFS argue that, to prevent the copying of
millions of unnecessary documents, parties should only be required to
identify documents and provide the opportunity to copy such documents.
AT&T supports the identification or attachment of documents to
complaints and answers only with respect to section 271(d)(6)(B)
complaints; otherwise, AT&T argues, all document production should
occur at the initial status conference. CBT, NYNEX, and SWBT express
concern that defendants will not have time to execute document
identification and production of this broad scope. Bell Atlantic states
that, because the Commission seldom permits depositions or broad
document searches, the provision of this information would rarely be
utilized. PTG and USTA suggest that parties be allowed to amend their
information designations without leave. Several parties, including MCI,
express doubt that such information disclosure requirements could
entirely substitute for discovery.
80. All commenters who discussed the proposal to require parties to
append copies of relevant tariffs or tariff provisions to their
complaints, answers, and replies support the proposal. No parties
commented on the proposal, to include expressly within the meaning of
[[Page 1002]]
Sec. 1.734 of our rules, that pleadings filed solely to effect delay in
the prosecution or disposition of a complaint are filings for improper
purpose.
c. Discussion. 81. We conclude that the complaint, answer, reply,
and any other required pleading are required to include full statements
of relevant, material facts with supporting affidavits and
documentation. This requirement will improve the utility and content of
pleadings by requiring parties to plead their cases with specific,
material facts and supply documentation early in the complaint process.
In order to speed resolution of all formal complaints, the Commission
must adhere to the fact-pleading process. Such quick resolution of
certain formal complaints is necessitated by the Act. Further, such
quick resolution of all formal complaints where possible is consistent
with the overall goals of the Act to promote and protect competition in
the marketplace.
82. We conclude that complainants shall be required to provide, in
their complaints, a detailed explanation of the manner in which a
defendant has violated the Act, Commission order, or Commission rule in
question. Substantive claims, or ``counts,'' based solely upon
information and belief shall be generally prohibited. A complainant may
be permitted, however, to file claims based on information and belief
if such claims are made in good faith and the complainant attaches an
affidavit to the complaint that explains why the supporting facts could
not be reasonably ascertained. Our goal is to discourage complainants
from filing claims based solely upon information and belief without
firsthand knowledge of the violation alleged. Because quick resolution
of formal complaints is essential to the Commission's goal of fostering
and preserving competition in today's deregulated telecommunications
markets, strict adherence to the Commission's fact pleading
requirements is necessary. A general rule prohibiting assertions based
solely upon information and belief will ensure that complainants
exercise diligence in preparing and submitting allegations of
misconduct against a carrier. We have considered, however, commenters'
concerns that complainants may not always have in their possession the
information that would substantiate their claims and that such
information may be in the sole possession or control of the defendant
carrier or of uncooperative third parties. Each complainant has the
general duty to provide, whenever possible, full statements of fact
supported by relevant documentation and affidavits. Complainants should
not, however, be penalized or prevented from filing a formal complaint
in those situations in which the necessary information could not have
been reasonably obtained prior to the filing of the complaint. We
conclude that this requirement strikes an equitable balance between the
Commission's need for complete information as early as possible, and
the complainant's potential difficulty in obtaining that information.
83. We disagree with the comments of the cable entities that
defendants should be permitted to make general denials if the defendant
intends in good faith to controvert all the averments of a pleading or
specific paragraph. Requiring the answer to include full statements of
relevant, material facts with supporting affidavits and documentation
will prohibit defendants from making general denials in their answers.
Specific denials supported by facts and documentation will aid the
Commission staff in understanding the nature of the dispute and
facilitate its resolution. Formal complaints often raise questions
about a rate, charge, term or condition of a particular service
offering. In our staff's experience, defendant carriers have the
requisite knowledge to specifically deny a complainant's allegations
about such charges, practices or service requirements in the vast
majority of cases. A diligent defendant should almost always have
sufficient information with which to make specific denials. We conclude
further that, contrary to MCI's suggestion, the benefits to speedy
resolution of a complaint that arise from specific denials outweigh the
potential benefit of allowing general denials as a mechanism to enforce
compliance with the pre-filing activities requirements.
84. We conclude that parties must include in the complaint, answer,
and any necessary reply, an ``information designation'' that identifies
individuals known or believed by the parties to have knowledge about
the matters in dispute. This information designation must identify such
individuals by name and business or other address and include a
description of the information possessed by that source and its
relevance to the dispute. We conclude that such mandatory information
designation will simplify, expedite, and, in some cases, eliminate the
need for time-consuming discovery. We agree with AT&T and PTG that
parties should not be required to supply the phone numbers of
individuals who should only be contacted through counsel. Therefore
parties are required to identify in the complaint, answer, and any
necessary reply only the name and address of each individual likely to
have discoverable information relevant to the disputed facts alleged
with particularity in the pleadings.
85. We conclude further that parties shall also be required to
identify in their information designations all documents in their
possession or control believed to be relevant to the matters in
dispute, including an inventory that contains for each document the
date, the source, the intended recipient(s), and a description of the
document's relevance to the dispute. We disagree with MCI's assertion
that parties will be unable to guess what kinds of material the
opposing party would regard as relevant. In most cases, parties to
formal complaints before the Commission are sophisticated business
entities who fully understand the issues before them and know which
documents in their possession or control are relevant to those issues.
We find CBT's arguments that many federal courts have opted out of
compliance with this rule's equivalent in the FRCP unpersuasive. We
note that, while we looked to the FRCP for some guidance during this
proceeding, that guidance was limited by the many differences between
federal court proceedings and Commission proceedings. Not only does the
Commission require fact-based pleadings, but certain of the
Commission's formal complaint proceedings are subject to statutory
resolution deadlines shorter than any deadline applicable to the
federal courts. Although some federal courts have opted out of
compliance with FRCP 26(a)(1), we adopt its equivalent for Commission
proceedings because it will aid us greatly in meeting statutory
deadlines under our individual procedural constraints as well as in
expediting the resolution of competitive issues that affect the
telecommunications marketplace.
86. We disagree with CBT's statement that it would be more
efficient to have parties respond to discovery requests than to have
parties identify all relevant documents in their information
designations. We find that requiring such information designations
early in the dispute will facilitate the Commission's ability to focus
on the facts and issues in the case quickly. Having such information on
hand will further expedite the Commission's consideration of the
necessity of any discovery requests early in the proceeding. We also
disagree with the suggestions by PTG and USTA to permit parties to
amend their information designations without leave. We conclude that
this would run contrary to
[[Page 1003]]
our objective of procuring as much information as early as possible.
The allowance of amendments would reduce parties' incentives to file
thorough information designations with their complaints, answers, and
replies because they will rely on their right to supplement their
designations at a later time. Accepting routinely late-obtained
information will only delay the resolution of complaints. We do
recognize, however, that parties may occasionally, after submitting
their initial pleadings, discover information that should be included
in their information designations. Accordingly, a party may submit a
request for permission to amend its information designations, along
with an explanation of why the information was not designated at the
time of the filing of the complaint, answer, or reply.
87. We do not find it necessary to require the production or
exchange of all documents identified as relevant to a dispute as a
matter of course in all cases. It will be helpful and often necessary,
however, in light of the Act's complaint resolution deadlines and the
Commission's goal of expediting the resolution of all complaints, to
have certain documents identified by the parties readily accessible to
the staff and opposing parties. Therefore we require parties to file
concurrently with the complaint, answer, and any necessary reply, only
those documents and affidavits upon which they intend to rely to
support their respective claims and defenses. Required attachments
include relevant tariffs or tariff provisions where applicable. Because
it is in each party's self-interest to support its most persuasive
arguments, we conclude that it is reasonable to rely on each party's
judgment to identify the key documents in the dispute. We acknowledge
that a party may be reluctant to divulge information that would weaken
its case, and, therefore, would probably not attach such information to
its complaint, answer, or reply. We conclude that this concern can be
adequately addressed by requiring each party to identify all such
information in their information designations, however, and opposing
parties will therefore be aware of, and have subsequent opportunity to
request, such information at the initial status conference.
88. We conclude that each party shall be required to attach
supporting affidavits and documents to any allowed briefs, along with a
full explanation in the brief of the material's relevance to the issues
and matters in dispute. Such attachments shall have been previously
identified in the parties' information designations, but need not have
been attached to the complaint, answer, or any necessary reply. We find
that this strikes an appropriate balance between the needs of the
Commission and opposing parties to have readily available information
and the hardships of producing unnecessary materials. We agree with PTG
and USTA that parties may, despite good faith efforts to file complete
submissions, later acquire documents or information upon which they
wish to rely but which they did not identify as relevant information in
their information designations. Therefore we permit a party to attach
such subsequently obtained documents, upon which the party intends to
rely, to any subsequent brief filed in the matter, provided it is
accompanied by a full explanation in the brief of the material's
relevance to the issues and matters in dispute and why such material
was not identified in the party's information designation.
89. We disagree with AT&T's suggestion that all document production
should occur at the initial status conference, except in section
271(d)(6)(B) complaints under 90-day resolution deadlines. This
document production requirement is intended to work in conjunction with
the other requirements adopted in this rulemaking, including the
requirement that parties discuss, before the initial status conference,
issues such as settlement prospects and stipulations of facts and
disputed facts. It is essential that parties be able to review the
documents produced with the initial pleadings in order to meet and
discuss these issues knowledgeably prior to the initial status
conference. Furthermore, we conclude that requiring the identification
of individuals and the identification, inventory, and production of
documents will facilitate the staff's ability to require further
disclosure of information about individuals with relevant information
and/or further production of documents when necessary.
90. We are not persuaded by the arguments of some commenters, such
as CBT, NYNEX, PTG, and SWBT, that twenty days is an insufficient
amount of time in which to prepare answers with the level of
information contemplated under these rules. We do not view defendants
as having only twenty days in which to prepare their answers. The
pleading requirements are intended to work in conjunction with the pre-
filing requirements. Thus, by the time parties reach the stage of
participating in a formal complaint before the Commission, settlement
talks will have narrowed the number and scope of issues in dispute, and
parties will have already commenced the collection and/or exchange of
relevant information that will be used to substantiate the defendant's
answer. We conclude that the imposition of these format and content
requirements on defendants is not unduly burdensome, particularly in
light of Congress' clear intent to expedite resolution of complaints to
promote the competitive goals of the Act.
91. We also disagree with Bell Atlantic that the information
produced would only be useful for depositions or broad document
searches, which are seldom permitted by the Commission. Early
identification of individuals knowledgeable about the matters in
dispute will be an important tool for the parties and the staff,
particularly in those cases where additional affidavits or other forms
of factfinding become necessary. Given our experience, and in light of
the short complaint resolution deadlines, we conclude that it is
necessary and appropriate to require parties to identify knowledgeable
individuals and potentially relevant documents early in the complaint
process.
92. We also conclude that pleadings filed solely to effect delay in
the prosecution or disposition of a complaint are filings for improper
purpose within the meaning of Sec. 1.734 of our rules. No commenters
opposed this proposal. Adoption of this definition will work in
conjunction with the new rules to further deter parties from filing
unnecessary pleadings in formal complaints before the Commission.
2. Waivers for Good Cause Shown. a. The NPRM. 93. In the NPRM, we
recognized that many of the proposed pleading requirements could be
burdensome on some individuals or parties, particularly those desiring
or compelled to proceed without the assistance of legal counsel due to
financial and other reasons. Therefore, we proposed to waive format and
content requirements for complaints, answers, and replies upon an
appropriate showing of financial hardship or other public interest
factors. We tentatively concluded that this waiver provision would help
to ensure that full effect is given to the provision in section 208 of
the Act that ``any person, any body politic, or municipal organization,
or State Commission,'' may complain to the Commission about anything
``done or omitted to be done'' by a common carrier in contravention of
the Act. We sought comment on this proposal and tentative conclusion,
as well as on what standards should be
[[Page 1004]]
used to determine ``good cause'' for waiving format and content
requirements.
b. Comments. 94. All parties commenting on this proposal support
it. APCC and NYNEX suggest that waivers should be granted primarily for
financial hardship or public interest reasons and suggest specific
revenue or asset levels to define ``financial hardship.'' ATSI argues
that complainants alleging violations of section 260, regarding the
provision of telemessaging service, should not have to make special
requests to receive good cause waivers. GST, KMC, MFS, and USTA suggest
that the Commission issue form complaints and model pleadings that pro
se complainants could either fill out or follow. GTE warns against
routine granting of waivers. The NAD suggests establishing an ombudsman
within the Commission to assist with accessibility complaints.
c. Discussion. 95. We conclude that parties may petition the staff
for waivers of the format and content requirements for complaints,
answers, and any authorized replies. Such waiver requests shall be
considered on a case-by-case basis and may be granted upon an
appropriate showing of financial hardship or other public interest
factors. We note this waiver provision will work in conjunction with
the Commission's existing general authority to waive any provision of
the rules on its own motion or on petition if good cause is shown. The
discretion to grant waivers of the format and content requirements
based on financial hardship and other public interest factors will
ensure, pursuant to section 208, that ``any person'' has the right to
complain to the Commission about acts or omissions by a carrier that
contravene the Act. For this reason, we do not agree with APCC or NYNEX
that financial hardship should be determined solely based on set
revenue or asset levels. The range of potential complainants under
section 208 is broad and may include individuals, state commissions,
municipalities, associations, and other entities of all forms and
sizes. Likewise, the size and makeup of defendant carriers will vary
greatly. Thus we conclude that waiver determinations should be made on
a case-by-case basis. The Commission shall make every effort to apply
its discretion in a consistent and fair manner to strike an appropriate
balance between strict compliance with the rules and the needs of
certain parties for more lenient requirements and timetables.
Furthermore, the Commission shall have discretion to waive or modify
some or all of its rules as appropriate when a waiver is granted for
good cause shown. For example, if the Commission grants a waiver of the
document production requirements to a party who demonstrates financial
hardship, the Commission may establish an appropriate alternative
method for review and production of documents in that matter.
96. We find that Sec. 1.721(b) of the rules contains a suggested
format for formal complaints that is clear and explicit and that no
further form complaints or model pleadings for pro se complainants are
necessary. Furthermore, the Enforcement Division of the Common Carrier
Bureau currently provides, via the Internet, direct mailings, and
public reference room access, a fact sheet designed to instruct
consumers on how to file a formal complaint with the Commission.
Finally, we conclude that the range of subjects that could conceivably
be contained within a pleading is too broad for a model pleading form
to be of much utility to pro se parties.
97. We decline to address in this proceeding NAD's proposal to
establish a Commission ombudsman to assist with accessibility
complaints in this proceeding. Such a proposal should be addressed in
our section 255 implementation rulemaking, so as to permit the
Commission to take a comprehensive approach to implementation of
section 255.
F. Answers
1. Reduction of Time to File Answers. a. The NPRM. 98. In the NPRM
we proposed to reduce the permissible time for a defendant to file an
answer to a complaint from thirty to twenty days after service or
receipt of the complaint. We tentatively concluded that this reduction
was consistent with the changes we proposed regarding the form and
content of pleadings and would not unduly prejudice the rights of any
defendant. We further tentatively concluded that this reduction in time
to answer struck the appropriate balance in distributing the burdens of
compliance with the new formal complaint resolution deadlines among the
complainants, defendants and the Commission.
b. Comments. 99. The majority of commenters, including AT&T, Bell
Atlantic, CBT, CompTel, the cable entities, MCI, TRA, and USTA support
this proposal. Ameritech, BellSouth, GTE, PTG, and SWBT contend,
however, that because complainants will have months to prepare their
complaints, requiring defendant carriers to submit detailed responses
with full legal and factual support within a twenty day window would be
unfair and unreasonably burdensome in most cases. PTG suggests that
defendants be required to file their answers within twenty days only in
complaints filed pursuant to section 271(d)(6)(B). ACTA and USTA
suggest that defendants be permitted to supplement their answers at a
later time.
c. Discussion. 100. We conclude that a defendant shall be required
to file its answer to a complaint within twenty days after receipt of
service of the complaint by the complainant. We find that reducing the
time in which to file an answer is necessary in light of the
Congressional intent to expedite the resolution of complaints alleging
anti-competitive behavior by defendant carriers. We disagree with
commenters who assert that defendant carriers will be overly burdened
by having to file answers that comply with the format and content
requirements within twenty days from the date of service. As stated
earlier, we view the defendants as having far more than twenty days in
which to prepare their answers because the pre-filing and format and
content requirements adopted in this proceeding are intended to work in
conjunction with the reduction in time to file an answer. The pre-
filing requirements will alert the defendant as to the basis of the
dispute. The actions taken by a defendant in participating in good
faith settlement negotiations should require the same collection of
information and documents that will be necessary to support its answer
in compliance with the format and content requirements. The requirement
of fully supported and thoroughly prepared complaints, furthermore,
will facilitate a defendant carrier's ability to prepare a full
response to a complaint within the twenty day period. Such pre-filing
and format and content requirements will eliminate any need to allow
defendants to supplement their answers. Permitting defendants to
supplement their answers routinely would only encourage defendants to
submit incomplete answers.
G. Discovery
101. The NPRM sought comment on a variety of ways to modify the
discovery process in light of the new statutory deadlines. Discovery is
inherently time-consuming and often fails to yield information that
aids in the resolution of a complaint. The NPRM, in conjunction with
other proposals designed to improve the content and utility of the
complaint, answer, and related pleadings, sought comment on discovery
proposals that would balance the parties' legitimate need for discovery
with the twin goals of (1)
[[Page 1005]]
meeting statutory resolution deadlines, and (2) facilitating prompt
resolution of all formal complaints.
1. Permissible Requests for Discovery. a. The NPRM. 102. In our
experience, discovery has been the most contentious and protracted
component of the formal complaint process. In the NPRM, we stated that
one of the key elements to streamlining the enforcement process was to
maximize staff control over the discovery process. We stated our
intention to examine carefully what role, if any, discovery should
continue to play in resolving formal complaints, and sought comment on
a range of options to either eliminate or modify the current discovery
process.
103. For our first approach, we sought comment on the benefits and
drawbacks of eliminating the self-executing discovery permitted under
our current rules by prohibiting discovery as a matter of right. This
proposal placed the emphasis of developing facts and arguments at the
complaint and answer stages of the proceeding, rather than on discovery
and subsequent briefing opportunities. Under this proposal, if the
record presented through such pleadings failed to provide a basis for
resolving disputes over material facts or was otherwise insufficient to
permit our resolution of a complaint, the staff would have the
discretion to authorize limited discovery at the initial status
conference, that would be held shortly after receipt of the defendant's
answer to the complaint. We sought comment on various aspects of
eliminating automatic discovery, including whether discovery was
necessary in all cases, whether such a rule would pose a hardship for
any particular segment of complainants, and what standards should apply
in the event that discovery was authorized by the staff.
104. For our second alternative approach, we sought comment on the
benefits and drawbacks of a proposed rule that would limit self-
executing discovery to something other than the thirty written
interrogatories authorized under the current rules. We asked parties to
comment on whether a more limited form of discovery as a matter of
right would accommodate a party's ability, where necessary, to identify
and present to the Commission material facts that may be in the
possession or control of the other party; whether allowing a limited
amount of discovery as a matter of right might decrease the staff's
burden in deciding discovery requests on a case-by-case basis; and
whether limiting discovery in this manner would detract from full
compliance with our rules regarding the level of detail that should be
offered in support of complaints and answers. Pursuant to this
approach, the staff would permit additional discovery only in
extraordinary cases. We sought comment on various aspects of this
approach, including whether a reduction in the number of allowable
written interrogatories would be appropriate, and whether
interrogatories should be limited to questions designed to illuminate
specific factual assertions or denials.
105. In our third alternative approach, we sought comment on
continuing to allow some limited discovery as a matter of right, but
allowing Commission staff to set limits on the scope of that discovery
and to set specific timetables for such discovery. We noted that
authorizing the staff to limit the scope of the written interrogatories
could be an effective deterrent to attempts by parties to use discovery
for purposes of delay or to gain tactical leverage for settlement
purposes. In conjunction with this approach, we proposed to require
that objections to interrogatories be filed by the date of the initial
status conference, thereby enabling staff to rule on such objections at
that time. We noted that under this proposal, extensions of time to
initiate limited discovery and file objections and motions to compel
would be granted only in extraordinary circumstances.
b. Comments. 106. The majority of commenting parties argue that the
Commission should continue to allow discovery as a matter of right.
CBT, ICG, and MCI argue that eliminating discovery as a matter of right
will cause delay due to the fact that motions requesting discovery will
almost always be filed and ICG argues further that such motions may
produce inconsistent discovery rulings. PTG argues that the prohibition
of discovery would inhibit the development of facts. Bechtel & Cole
argue that the right to discovery is necessary because defendants have
the power to protect information in their sole possession. APCC,
CompTel and TRA argue that discovery is especially necessary where the
defendant has sole possession of the information a complainant needs to
make its case, such as in the case of allegations of cross-subsidies or
discrimination. ACTA and CompTel argue that due process requires that a
complainant be able to direct its case as it sees fit.
107. Parties objecting to the elimination of discovery as a matter
of right propose several ways to streamline the discovery process. PTG
and TCG suggest that the Commission could limit discovery to twenty
written interrogatories, while USTA and GTE suggest that fifteen
interrogatories would be the appropriate number. The cable entities,
however, suggest allowing thirty discovery requests, including
interrogatories, requests for production of documents, and requests for
physical inspection of materials and facilities, to be filed ten days
after service of the complaint, an additional fifteen such discovery
requests to be filed within five days of the filing of the answer, and
allowing parties to request additional discovery thereafter. The cable
entities argue that the certainty of prompt resolution of discovery
disputes will discourage parties from making frivolous requests or
objections.
108. A number of the parties that oppose the elimination of
discovery as a matter of right suggest that discovery disputes should
be resolved at the initial status conference. Several parties argue
that it would be useful for Commission staff to use the initial status
conference to control the scope and/or scheduling of discovery. U S
West and TRA, however, argue that discovery should be limited by the
staff only with regard to timetables. TRA states that even Rule 26 of
the FRCP provides for traditional discovery, in addition to voluntary
disclosure, and states further that Commission staff should not control
the prosecution of an action. MCI suggests that requiring discovery to
be discussed at the initial status conference will help Commission
staff maintain control over the discovery process, although MCI asserts
that the proposed timing of the initial status conference is too early
in formal complaint proceedings to rule on objections to discovery.
109. To promote the resolution of discovery disputes at the initial
status conference, several parties argue that discovery requests and
objections thereto should be served and filed prior to the initial
status conference. MCI argues, however, that it would be unfair to
complainants to require discovery requests to be filed with complaints
and answers because the defendants would be able to formulate their
requests after seeing the complaint, while the complainants would be
required to formulate their requests prior to seeing the answer.
CompTel argues that the proposed timetables for objecting to
interrogatories provides insufficient time for parties to review the
interrogatories, and that therefore parties will always file objections
to interrogatories rather than answer them. CompTel suggests instead
that parties be required to respond promptly to interrogatories for
which their objections are denied. While they support retaining
discovery as a matter
[[Page 1006]]
of right, GST, KMC and MFS argue that interrogatories should be
prohibited or limited because they are often useless. If allowed,
interrogatories should not be served until after the parties file their
joint statement of stipulated facts and key legal issues, to facilitate
the targeting of disputed areas. APCC suggests that the Commission
require early discovery, including expedited rulings on discovery
disputes.
110. GTE, MCI, Nextlink and TCG argue that discovery as a matter of
right is necessary because all prior disclosures are ``voluntary'' and
parties would disclose only those facts solely in their possession that
are most favorable to their case. ICG argues that the absence of
discovery as a matter of right would preclude parties from checking the
accuracy of their opponent's disclosures. TRA is concerned that
elimination of discovery as a matter of right would result in fewer
complaints being filed with the Commission because injured parties
would lack access to information.
111. AT&T, BellSouth, NYNEX, and SWBT argue that there should be no
discovery as a matter of right. AT&T argues that abuses will continue
to occur if parties are entitled to a fixed number of interrogatories.
BellSouth argues that full discovery is always available in federal
court. MCI counters this argument by asserting that discovery should
not be the exclusive province of federal courts because courts often
make primary jurisdiction referrals to the Commission in section 207
cases. SWBT's support of the elimination of discovery is contingent
upon two requirements: (1) providing defendants with the right to
remove a formal complaint proceeding to federal court, and (2) a
complete prohibition on motions for discovery to prevent the routine
filing of such motions. TRA opposes SWBT's suggestion that the
Commission provide defendants with the right to remove formal
complaints to federal court because it argues that defendants would use
such a procedure to their tactical advantage to avoid expedited
resolution.
112. SWBT argues that discovery is not needed because parties do
not have a right to file a formal complaint and then use discovery to
determine if a claim exists. SWBT suggests that parties be required to
certify that they engaged in good faith discovery discussions and
exchanges prior to the filing of the complaint.
113. AT&T and NYNEX argue that the Commission should control all
discovery, including the scope, timing and number of interrogatories,
and issue discovery rulings at the initial status conference. NYNEX
proposes that parties be required to propound up to thirty
interrogatories with the complaint and answer and file any opposition
to such discovery five days prior to the initial status conference.
AT&T argues that discovery requests in addition to interrogatories
should be (1) only allowed in extraordinary circumstances, (2)
requested at the initial status conference, and (3) discussed with the
opposing party prior to the filing of the motion requesting such
discovery, with any opposition to such motion due in five days.
114. AT&T suggests that responses to interrogatories should be
filed with the Commission. APCC suggests that a ``good cause waiver''
should be available to grant relief to parties from discovery
limitations. Ameritech suggests, and BellSouth concurs in its Reply
comments, that the Commission implement procedures such as those
contained in section 252(b)(2) of the Act, that are applicable to
compulsory arbitration of interconnection disputes. GST, KMC and MFS
suggest the implementation of mandatory ``meet and confer'' conferences
between the parties to address procedural issues and potential disputes
prior to the initial status conference. AT&T supports the meet and
confer concept. CBT opposes mandatory meet and confer conferences,
arguing that the Commission should not be adding unnecessary
requirements for the parties to fulfill. ICG suggests that the
Commission make clear that it will not tolerate form objections and
answers. In light of the Commission's proposals to permit
interrogatories only when it determines such discovery is appropriate,
AT&T suggests deleting Sec. 1.729(e) of the Commission's rules because
it would be superfluous.
c. Discussion. 115. For the reasons discussed below, we eliminate
the rule authorizing the parties to initiate self-executing discovery.
In its place, we have adopted rules and policies that carefully balance
the rights of the parties and the need to expedite the resolution of
complaints in a number of important aspects. These new rules: (1)
require complainants and defendants to exercise diligence in compiling
and submitting facts to support their complaints and answers; (2)
discourage reliance on the often protracted discovery process as a
means to identify or develop information needed to support a complaint
or answer; (3) give parties an opportunity to make their cases for or
against limited discovery early in the proceedings; (4) reduce the need
for time-consuming motions to compel; (5) provide Commission staff with
more control over the discovery process; and (6) limit each party's
ability to use discovery for delay or other purposes unrelated to the
merits of the dispute. The 1996 Act imposed both statutory deadlines on
certain complaints and an overall pro-competitive policy on the
handling of all formal complaints, thus signifying an intent that we
resolve quickly disputes involving allegations of interference in the
development of competition in telecommunications markets. The discovery
procedures under the old rules were time consuming and were susceptible
to abuses that often caused undue delays in our consideration of the
merits of a complainant's claims. The discovery rules adopted in this
proceeding expedite the discovery process, which, in turn, expedites
the resolution of all formal complaints, in accordance with the
requirements and policies of the 1996 Act.
116. The new procedures and policies allow the staff to consider
and rule on reasonable, properly focused requests for interrogatories
and other discovery on an expedited basis as follows:
(a) With its complaint, a complainant may file with the Commission
and serve on the defendant requests for ten written interrogatories. A
defendant may file with the Commission and serve on the complainant
requests for ten written interrogatories during the period beginning
with the service of the complaint and ending with the service of the
answer.
(b) Within three calendar days following service of the answer, a
complainant may file with the Commission and serve on the defendant
requests for five written interrogatories. Such additional
interrogatories shall be directed only at specific factual allegations
made by the defendant in support of its affirmative defenses.
(c) Requests for interrogatories shall contain (1) a listing of the
interrogatories requested; and (2) an explanation of why the
information sought in each interrogatory is necessary to the resolution
of the dispute and unavailable from any other source.
(d) Oppositions and objections to the requests for interrogatories
shall be filed with the Commission and served on the propounding party
(1) by the defendant, within ten calendar days of service of
interrogatories served simultaneously with the complaint and within
five calendar days of interrogatories served following service of the
answer, (2) by the complainant, within five calendar days of service of
the interrogatories, and (3) in no event less than three calendar days
prior to the initial status conference.
[[Page 1007]]
(e) Section 1.730 of the current rules, which expressly authorizes
parties to petition for additional ``extraordinary'' discovery in the
form of requests for document production, depositions and additional
interrogatories, shall be deleted.
(f) Commission staff will be inclined to grant all reasonable
requests for interrogatories and other forms of discovery to the extent
permitted under any applicable statutory deadlines. It will issue
rulings and direct the parties accordingly at the initial status
conference.
(g) Commission staff retains the discretion to order on its own
motion, additional discovery including, but not limited to, document
production, depositions, and/or interrogatories. The staff also retains
discretion to limit the scope of permissible interrogatories and to
modify or otherwise relax the discovery available in particular cases
where appropriate.
117. These rules and policies are designed to work in conjunction
with our pre-filing and format and content requirements, which are
designed to improve the utility and content of the initial complaint
and answer filed in a section 208 proceeding. The rules as a whole are
intended to change fundamentally the nature of the formal complaint
process to enforce the Commission's long-standing requirement that
``[a]ll matters concerning a claim [be pled] fully and with
specificity.'' In adhering to these fact-pleading requirements, we will
further the pro-competitive policies of the 1996 Act by expediting the
resolution of all formal complaints. We find that these new
requirements strike a reasonable balance between, on the one hand,
providing for discovery where necessary to ensure the development of a
complete record and, on the other hand, preventing the use of discovery
as the primary means of determining if a claim exists.
118. Some commenters express doubt that parties will disclose
unfavorable information, and argue that discovery is needed to verify
the accuracy of initial disclosures. The format and content rules
address this concern by requiring that parties reveal the means by
which they determine what documents and information to disclose.
Disclosure of the nature of the inquiry should significantly reduce
concerns about accuracy, since a failure to address a patently relevant
topic will be readily apparent. The arguments of some commenters are
based on the use of the phrase ``voluntary disclosure.'' We emphasize
that the phrase ``voluntary disclosure'' refers to the fact that the
parties are obligated to disclose all information that is relevant to
the resolution of a dispute in the absence of a specific discovery
request. Use of the term ``voluntary disclosure'' does not limit the
obligation of the disclosing party to identify all information that is
relevant to the facts in dispute, including information that is
unfavorable to the disclosing party.
119. The rules adopted address MCI's concerns that it is unfair to
require complainants to file their discovery requests without an
opportunity to review the answer. First, because the parties must make
a good faith effort to resolve their dispute prior to the filing of the
complaint, the complainant will know what to expect in the defendant's
answer. Second, the rules provide the complainant with an opportunity
to seek discovery on affirmative defenses first raised in the answer.
In light of these factors and the time constraints of statutory
deadlines, MCI's fairness argument fails.
120. We disagree with the argument that the Commission should
provide discovery as a matter of right because federal court rules
provide for discovery as a matter of right, in addition to required
initial disclosures. While the Commission has often found the federal
rules instructive, it has consistently rejected wholesale adoption of
them. A significant difference exists in the procedural requirements of
actions brought before the different fora. Federal court rules require
notice pleading while the Commission's rules require fact pleading.
Notice pleading anticipates the use of discovery to obtain evidence of
the facts to support a complainant's claims, while fact pleading
requires that a complainant know the specific facts necessary to prove
its claim at the time of filing. Neither section 208 of the Act nor the
Commission's own rules and policies contemplate the expansive discovery
available in federal district court, and in fact, section 207 of the
Act gives parties the option of filing their complaints in federal
district court rather than with the Commission. We, further, disagree
with the argument that self-executing discovery is necessary because
due process requires that a complainant be able to direct its case as
it sees fit. As we have stated, our rules require that parties plead
all matters fully and specifically, and commission staff will be
inclined to grant reasonable requests for discovery to the extent
permitted under any applicable statutory deadlines. In this context, a
party's due process rights are fulfilled by being provided with the
opportunity to request discovery and present its argument to the
Commission as to why discovery is necessary in its particular case. The
fact that the Commission may deny a party's discovery request,
following consideration of the merits of such request, does not negate
the party's right to the opportunity to make its case for discovery.
121. We disagree with the commenters who state that ending self-
executing discovery will result in an avalanche of motions for
discovery, which would lengthen the discovery process and could result
in inconsistent discovery rulings. Our rules will provide for the quick
resolution of discovery disputes by the date of the initial status
conference, which will be held ten days after the answer is filed. We
note that these same commenters strongly support proposals requiring
the staff to play a more active role in the discovery process by
defining the timing and scope of necessary discovery. These rules allow
Commission staff to take a more active role in the discovery process to
meet statutory deadlines and expedite the resolution of all formal
complaints.
122. We conclude that SWBT's suggestion that the Commission require
the parties to engage in good faith discovery discussions prior to the
filing of the complaint is unduly burdensome. The Commission is already
requiring parties to engage in good faith settlement negotiations prior
to the filing of a complaint. As part of that obligation, we anticipate
that parties will exchange relevant documentation to the extent that it
would help to resolve conflicts. We also conclude that SWBT's
suggestion would be likely to raise numerous disputes after the filing
of the complaint, e.g., concerning what constitutes ``good faith
discovery,'' that would consume more time and resources than would be
saved by the implementation of such a requirement.
123. SWBT suggests that the Commission adopt a rule providing
defendants with the right to remove disputes to federal court where
broader discovery is available. We decline to adopt this suggestion
because it would eliminate rights provided to complainants in the Act.
The Act provides complainants with the choice of filing claims with the
Commission or in federal court. The 1996 Act further provides
complainants with the right to have the Commission resolve certain
types of complaints within statutory deadlines. Because those deadlines
are enforceable only at the Commission, providing a defendant with the
right to remove any claim to federal court would provide it with the
ability to eliminate the complainant's right to have its
[[Page 1008]]
dispute resolved within the applicable statutory deadline. SWBT,
furthermore, made this proposal in conjunction with its support for the
proposal to eliminate all discovery, which we have declined to adopt.
124. Additionally, we reject Ameritech's proposal that, as a means
to effective discovery, the Commission adopt disclosure requirements
similar to those in section 252(b)(2), which are for compulsory
arbitration of interconnection agreements. Such a proposal is
unworkable in light of the fact that section 252(b)(2) procedures would
not accommodate the variety of complaints that may be brought before
the Commission. Section 252(b)(2) disclosure procedures are directed at
arbitration of disputes of a particular nature before state
commissions. Our voluntary disclosure rules will provide the benefits
of that provision, the initial disclosure of relevant documentation,
while the discovery rules adopted herein contain sufficient flexibility
to be adapted to the unique circumstances of individual cases.
125. The issue of requiring a meet and confer conference to discuss
discovery disputes is addressed in the Status Conference section of
this Report and Order.
2. Reduction of the Administrative Burden of Filing Documents. a.
The NPRM. 126. In the NPRM we sought comment on methods to reduce the
administrative burden on the Commission of accepting filed documents,
either identified in initial filings or obtained through discovery,
including implementation of a computer scanning requirement for large
document productions.
b. Comments. 127. Those parties that commented on this proposal
oppose the imposition of a scanning requirement. CBT argues that such a
requirement would be a waste of resources while CompTel argues it would
be too burdensome.
c. Discussion. 128. We decline to adopt a scanning requirement for
all large document productions. Instead, we shall provide Commission
staff with the discretion, in individual cases involving the review of
a large number of documents, to require the parties to provide the
documents to the Commission in a scanned or other electronic format.
Material in any electronic format shall be indexed and submitted in
such manner as to facilitate the staff's review of the information.
Commission staff shall have discretion to reach an agreement with the
parties about the appropriate technology to be used in light of the
needs of the staff and the current cost and availability of document
management technology. Commenters opposed to the imposition of a
scanning requirement make general statements that a scanning
requirement would be unjustifiably costly and burdensome to implement.
Because such a requirement will be imposed on an individualized basis,
the staff shall decide on a case-by-case basis whether the nature of
the production involved will justify the cost and burden of electronic
formatting.
129. We also recognize that a significant number of complex
technical issues that are beyond the scope of the NPRM would have to be
addressed prior to the implementation of a comprehensive document
scanning requirement. Because scanning technology is varied and not
universally compatible, the implementation of a standardized scanning
requirement would require us to choose a single type of scanning
technology. Several complex questions would therefore arise, including,
but not limited to, what information should be placed in identifying
fields and whether the documents must be searchable by text. Because of
these complex technical questions, we decline to impose a scanning
requirement at this time, although we may address this issue again at a
later date, following our consideration of possible procedures for
allowing the electronic filing of documents in GC Docket 97-113.
3. Voluntary Agreements for the Recovery of Discovery Costs. a. The
NPRM. 130. One of the goals in the NPRM was to identify ways to
encourage parties to exercise diligence in identifying and satisfying
their discovery needs. For example, although the Commission does not
have authority to award costs in the context of a formal complaint
proceeding, we sought comment on whether encouraging formal complaint
parties to agree among themselves to a cost-recovery system for
discovery would facilitate the prompt identification and exchange of
information. As an example, we suggested that the parties could
stipulate that the losing party in the complaint proceeding would bear
the reasonable costs associated with discovery, including reasonable
attorneys' fees.
b. Comments. 131. Although GST, KMC and MFS support the Commission
encouraging parties to enter into voluntary cost recovery agreements,
Ameritech, CBT, CompTel, PTG, SWBT, and TCG oppose such a position.
CompTel, GTE, PTG, and SWBT argue that parties will be unable to agree
to a cost recovery system. Ameritech argues that parties will be
tempted to convince the decisionmaker to award enough money to the
``losing'' party to offset the costs of discovery. Ameritech suggests
the alternative of giving the factfinder the discretion to decide cost
recovery issues and award financial damages for the filing of frivolous
complaints. TCG argues that, if the Commission encouraged such
agreements, parties might not comply with discovery requests unless
they are compensated. CBT argues that discovery abuse would not be
lessened by having the loser pay the cost of discovery, since the
winning party is as likely to have abused discovery. CBT supports,
however, requiring parties to compensate each other for extraordinary
efforts to comply with discovery requests. CompTel suggests that the
Commission should set a reasonable copying fee.
c. Discussion. 132. We decline to encourage voluntary cost recovery
agreements among parties for several reasons. We conclude that recovery
of discovery costs will not be a significant problem in formal
complaints because the rules we adopt today will make extensive
discovery the rare exception rather than the general rule, regardless
of the willingness of parties to pay for discovery. Furthermore, most
of the commenters oppose this proposal. Since the majority of the
commenters are potential parties to formal complaints before the
Commission, we find it unlikely that parties would enter into such
voluntary cost recovery agreements.
4. Referral of Factual Disputes to Administrative Law Judges. a.
The NPRM. 133. In the NPRM we proposed to amend our rules to authorize
the Common Carrier Bureau and the Wireless Telecommunications Bureau,
on their own motion, to refer disputes over material facts in formal
complaint proceedings to an administrative law judge (``ALJ'') for
expedited hearing. The disputes referred would be those that cannot be
resolved without resorting to formal evidentiary proceedings, although
adjudication of novel questions of law or policy would remain outside
of the delegated authority of the ALJ. We noted that, as a practical
matter, the Bureaus would refer issues only where necessary to
determine acts or omissions, and not to determine the legal
consequences of such acts or omissions. We tentatively concluded that
expanding the Bureaus' delegated authority in this limited way would
provide the staff with an important tool for resolving disputes over
material facts that cannot be resolved without resort to formal
evidentiary proceedings.
[[Page 1009]]
b. Comments. 134. The majority of commenters support the adoption
of a rule authorizing the Common Carrier Bureau and the Wireless
Telecommunications Bureau to refer factual disputes to an ALJ for
resolution. Bechtel & Cole's support for authorizing such referral,
however, is contingent upon the establishment of deadlines for ALJs to
resolve such disputes, as well as a clear definition of the role and
responsibility of the ALJ in each case. CBT suggests that the ALJ
hearing be located at the site of the alleged violation. GST, KMC and
MFS argue generally that the procedures for referral of factual
disputes to ALJs should be clarified. BellSouth, however, opposes the
referral of factual issues to ALJs, except as a last resort, arguing
that it would only add a layer of procedural rules while still
requiring the Commission to make a legal determination on the case
itself. BellSouth supports referral of disputes to ALJs for hearing
only if the Commission adopts the pole attachment complaint rules.
c. Discussion. 135. We amend Sec. 0.291 of the rules to authorize
the Chief of the Common Carrier Bureau to designate factual disputes
for evidentiary hearings before an ALJ and clarify that the change in
the Bureau's delegated authority is intended to authorize the Bureau to
designate factual disputes for hearing even in those cases where the
facts to be determined may be considered ``novel.'' We retain, however,
the existing prohibition on the Common Carrier Bureau designating for
hearing those issues involving novel questions of law or policy which
cannot be resolved under outstanding precedents or guidelines. No
revision is required in the existing delegated authority of the
Wireless Telecommunications Bureau, which now permits it to delegate
novel factual issues for hearing.
136. Factual disputes that are referred to an ALJ for hearing shall
be referred to such ALJ through a hearing designation order. The
hearing designation order may set a recommended deadline for the ALJ to
certify the record by, and, if time permits, issue a recommended
decision on the factual dispute. The presiding judge shall certify the
record and if time permits, issue a recommended decision, pursuant to
the instructions contained in the hearing designation order, before
referring the matter back to the Commission for, inter alia, final
resolution of all outstanding factual, legal and policy issues. We
clarify that, where the Common Carrier Bureau or the Wireless
Telecommunications Bureau designates a dispute for expedited hearing,
the designating Bureau may authorize the presiding judge to schedule
the proceedings to enable such deadline to be met. We further clarify
that the Common Carrier and Wireless Telecommunications Bureaus will
not refer a factual dispute to an ALJ for hearing where the time
required by the ALJ to complete a hearing on such dispute would
preclude the Commission from meeting an applicable statutory deadline.
137. There is broad support among the commenters for the use of
ALJs to resolve factual disputes. After due consideration of
commenters' concerns about compliance with statutory deadlines, we
conclude that the existing rules provide the Commission with the
authority to request, in a hearing designation order, that disputes be
resolved by an ALJ within a set period of time consistent with the
final Commission decision complying with the statutory deadline and to
authorize ALJs to use discretion in the application of their hearing
rules to ensure compliance with the deadline recommended by the
Commission. We conclude, in addition, that the concerns of some
commenters about such referrals slowing down the complaint process are
unwarranted. The Commission's obligation to comply with statutory
deadlines is not eliminated by such referral. Referral of factual
disputes to ALJs will, in fact, expedite the process because referrals
will be used in those circumstances where the factual disputes cannot
be resolved promptly, if at all, on a written record. In such cases, it
would take longer for the Commission to resolve such disputes itself
without a hearing than it would for the Commission to do so after a
hearing before an ALJ. ALJs are, furthermore, expert triers of fact and
are well-situated to conduct their proceedings within the time frames
given by the Commission, such that sufficient time will remain for the
Commission to issue its decision in compliance with the statutory
deadline. We also conclude that ALJ hearings will be held at the
offices of the Commission in Washington, D.C., unless otherwise ordered
by the Commission. It would be impractical to provide for hearings at
the location of each dispute in light of both the time limitations that
may be imposed on the ALJs and the limited resources of the Commission.
138. Additionally, we note that the Enforcement Task Force is
currently evaluating whether it may be appropriate, in certain limited
categories of disputes, to conduct mini-trials or some other form of
live evidentiary proceeding, either before an ALJ or the Task Force. If
adopted, this test procedure, subject to careful time constraints,
would allow parties a substantially greater opportunity to present live
testimony and oral argument than is contemplated by the hearings
conducted pursuant to designation orders.
H. Status Conferences
139. The NPRM proposed to use status conferences to speed up the
formal complaint process in order to enable compliance with the newly
imposed statutory deadlines and overall streamlining of the formal
complaint procedures. The status conference proposals were intended to
work in conjunction with the modifications of the briefing and
discovery rules.
1. The Initial Status Conference. a. The NPRM. 140. We proposed to
modify our rules concerning status conferences to improve the ability
of the Commission staff to render prompt decisions and order any
necessary actions by the parties. We proposed to require that, unless
otherwise ordered by the staff, an initial status conference take place
in all formal complaint proceedings ten business days after the
defendant files its answer to the complaint. Such an early status
conference would be used to discuss such issues as claims and defenses,
settlement possibilities, scheduling, rulings on outstanding motions,
the necessity of and, if necessary, scope and/or timetable of
discovery.
b. Comments. 141. A number of commenters support scheduling the
initial status conference ten days after the filing of the answer.
Several commenters, such as CompTel, MCI, Nextlink, and PTG, however,
assert that it may be unrealistic for parties to be required to argue
all discovery issues in that short a time period. They suggest either a
second status conference or that the initial status conference be held
twenty to thirty days after the filing of the answer. AT&T, CBT, PTG,
and U S West argue that parties should continue to be permitted to
attend status conferences by telephone conference call.
142. The commenters agree that the issues to be resolved at the
initial status conference should include the scope and scheduling of
discovery and the briefing schedule. The cable entities state that they
envision the initial status conference as the ``focal point of the
complaint proceeding.'' PTG suggests the scheduling of a formal
settlement conference at that time. GST, KMC, and MFS also propose to
have parties attend ``meet and confer'' conferences prior to the
initial status conference so that
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agreements reached and disputes remaining unresolved after the meet and
confer may be reduced to writing and given to the staff at the initial
status conference. GST, KMC, and MFS suggest that the following
subjects be discussed at the meet and confer: (1) the necessity and/or
scope of discovery beyond the exchange of documents and information
designations; (2) if depositions or affidavits are necessary, and if
so, the number and proposed dates; (3) the timetable for completion of
discovery; (4) the need or desirability of referring technical issues
to an neutral expert; (5) settlement possibilities; (6) if briefing is
necessary; (7) whether parties are willing to have damages claims
resolved separately from liability issues using the supplemental
complaint process, where such action has not already taken place; (8)
disagreements over designation of documents as confidential or
proprietary; (9) in section 271(d)(6)(B) cases, whether parties can
agree to waive the ninety-day resolution deadline; and (10) the draft
joint statement of stipulated facts and key legal issues. AT&T and the
cable entities support requiring the meet and confer, while CBT opposes
the meet and confer because it argues that the Commission should not
impose additional requirements on parties.
c. Discussion. 143. We require that the initial status conference
take place ten business days after the date the answer is due to be
filed unless otherwise ordered by the staff. Setting the initial status
conference date for ten business days after the date the answer is due
to be filed will enable Commission staff to render decisions and/or
order necessary actions promptly. Commission staff retain the
discretion to permit parties to attend status conferences by telephone
conference call on a case-by-case basis.
144. Commenters that oppose scheduling the initial status
conference for ten business days after the date the answer is due to be
filed claim that it may be unrealistic to require the parties to
address discovery issues so early in the proceeding. In response to
these commenters, we shall use a complaint with a ninety-day resolution
deadline as an example. In a ninety-day complaint, the date of the
initial status conference is 34 days into the proceeding under the
amended rules. In other words, over one third of the time allocated for
resolution of such complaint will have passed before the status
conference takes place. In the remaining fifty-six days, the parties
will be required to comply with any discovery ordered and to draft
briefs to include such discovery findings, and the staff will be
required to consider all submissions by the parties and issue a
decision taking appropriate action. Given these requirements, it is
necessary for the parties and the Commission to move the proceeding
along with great speed. Even if the complaint is not subject to such an
abbreviated schedule, the expedited resolution of all formal complaints
is essential to fostering and maintaining competition in accordance
with the goals of the 1996 Act. Furthermore, the requirement of an
early initial status conference will not be as burdensome as some
commenters envision. Our status conference requirement must be
considered in conjunction with the establishment of requirements for
pre-filing activities, format and content of pleadings, and discovery
procedures. The pre-filing activities will narrow the scope of disputed
issues. The format and content requirements will reduce the amount of
discovery that is necessary by requiring the disclosure of relevant
evidence at the complaint and answer stage of a formal complaint
proceeding. The new discovery procedures will require the filing of all
requests for discovery, as well as objections and oppositions thereto,
prior to the initial status conference, to enable the staff to address
discovery issues at the initial status conference. Finally, Commission
staff will retain the discretion to modify the scheduling of the
initial status conference when it is warranted by the facts and
circumstances of an individual case.
145. We also adopt, in part, the proposal made by GST, KMC, and MFS
to require the parties to meet and confer prior to the initial status
conference. Parties will be required to schedule and attend a meet and
confer conference amongst themselves prior to the initial status
conference to discuss the following issues: (1) settlement prospects;
(2) discovery; (3) issues in dispute; (4) schedules for pleadings; (5)
joint statements of stipulated facts, disputed facts, and key legal
issues; and (6) in a section 271(d)(6)(B) proceeding, whether the
parties agree to waive the ninety-day resolution deadline. All
proposals agreed to and disputes remaining must be reduced to writing
and submitted to the staff two business days prior to the initial
status conference. This submission is to be made separately from the
joint statement of disputed and undisputed facts and key legal issues
that is due on the same date. Our requirement that the parties meet and
confer will prepare the parties for a productive status conference
because it will require the parties to consult early on substantive and
procedural issues. The requirement to meet and confer should also
eliminate any element of surprise that might prevent parties from
reaching agreements at the status conference, due to a party needing
time to consider an opponent's newly disclosed position on a particular
issue. CBT's argument against the imposition of further requirements is
unpersuasive. The meet and confer will not require the parties to
address any new issues, but rather imposes an earlier deadline for
completing activities which the parties would have to perform in any
case.
2. Status Conference Rulings. a. The NPRM. 146. In the NPRM, we
proposed to modify the requirement that the staff memorialize oral
rulings made in status conferences. We proposed that, within twenty-
four hours of a status conference, the parties in attendance, unless
otherwise directed, would submit to the Commission a joint proposed
order memorializing the oral rulings made during the conference.
Commission staff would review and make revisions, if necessary, prior
to signing and filing the submission as part of the record. To
facilitate the submission of these joint proposed orders, we further
proposed that parties be allowed, but not required, to tape record the
staff's summary of its oral rulings or, alternatively, to transcribe
the status conference proceedings. We sought comment on these proposals
and any other alternative proposals.
b. Comments. 147. Most commenters, including ACTA, ATSI, Bell
Atlantic, GTE, and ICG, support requiring parties to file a joint
proposed order within twenty-four hours of a status conference. ACTA,
AT&T and GTE suggest that the Commission provide an alternative
procedure for parties that cannot agree on a proposed order. Bell
Atlantic suggests that the Commission provide the parties with
resources to draft the proposed order on-site following the conference,
with staff remaining available for consultation. CBT, NYNEX, and PTG
oppose requiring parties to file a joint proposed order memorializing
the status conference rulings. They argue that parties will be unable
to agree on the content of such an order and that the Commission staff
member making the ruling is in the best position to know what was
intended by the ruling. AT&T suggests that joint proposed orders would
be unnecessary if the parties have made a stenographic record.
148. Commenters are split regarding the allowance of audio
recording and/or the use of stenographers at status conferences. ICG
supports audio recording of the entire status conference. GST, KMC, and
MFS
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support the audio recording of a summary of the staff's oral rulings,
but oppose the use of a stenographer as being unnecessary. SWBT opposes
using a stenographer because of concern that a transcribed record may
have a chilling effect on the free flow of discussions at status
conferences.
c. Discussion. 149. We require parties to provide the Commission
with a joint proposed order memorializing the rulings made at each
status conference. Because of the many important issues that will be
resolved during the status conference, a written record of the rulings
will be an essential reference and organizational tool for the parties
and the Commission. Requiring the parties to provide a joint proposed
order will allow the Commission to focus its scarce resources on other
aspects of the complaint process. Requiring the parties to submit such
joint proposed order by the end of the business day following the
status conference is necessary because compliance with rulings made at
status conference may require action within a matter of days. Such time
sensitivity requires that any confusion or dispute among the parties
over rulings made at the status conference be brought to the attention
of Commission staff as early as possible. It is instructive to note
that the Commission's ex parte rules require parties making oral ex
parte presentations to file a written memorandum with the Commission's
Office of the Secretary that summarizes the data and arguments
presented on the next business day after the presentation. It has been
our experience that parties do not have difficulties complying with
such requirement. As explained below, we have eased the burden of
compliance with this requirement by providing parties with the
opportunity to submit either the joint proposed order or a transcript
of the status conference.
150. The joint proposed order shall summarize the rulings made by
the staff in the status conference. If the parties cannot agree on all
rulings in the joint proposed order they may submit instead a joint
proposed order that contains the proposed rulings upon which they agree
and alternative proposed rulings for those rulings upon which they
cannot agree. The joint proposed order
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