By Douglas G. Bonner.
On September 18, 2017, the FCC released a Notice of Proposed Rulemaking (“NPRM”) seeking comment on what it calls a “uniform set” of procedural rules for certain formal complaint proceedings delegated to the FCC’s Enforcement Bureau for handling by its Market Disputes Resolution Division (MDRD) and Telecommunications Consumers Division (TCD).
The rulemaking seeks to streamline and consolidate three separate sets of procedural rules governing Section 208 formal complaints, Section 224 pole attachment complaints, and disability access complaints brought under Sections 255, 716 and 718. Informed by 20 years of experience since the Commission’s original adoption of its Section 208 formal complaint and mediation rules in 1997, and observing that many of those rules have “worked well,” the NPRM discusses differences between its rules governing Section 208 formal complaints and those rules governing Section 224 pole attachment complaints and disability access complaints. The Commission proposes that each of these complaint proceedings be subject to “one set of procedural rules”, using the Section 208 rules as a starting point.
Among the more significant complaint rule revisions, the Commission proposes the following rule changes:
- A uniform 30 day answer period to answer a complaint following service of the complaint
- Reply to an answer would be due within 10 days of service of an answer (increasing the 3 day period to reply under current Sec. 208 and disability access complaint rules, though less than the 20 day period under current pole attachment complaint rules).
- Expanding the “information designation” requirement describing individuals with direct knowledge of facts alleged in the pleadings, which the Commission tentatively concludes has been “beneficial”, to pole attachment complaints.
- Discovery – As a matter or right, 10 interrogatories may be served by the complainant with its complaint and by the defendant with its answer, and 5 more by the complainant with its reply. An explanation needs to be provided as to why the information is necessary to resolution of the dispute and is not otherwise available. This rule departs from existing rules which require a party to request leave to serve interrogatories, reflecting a recognition by the FCC that “well-crafted interrogatories…narrow…the facts and issues in dispute.”
- Eliminates Proposed Findings of Fact and Conclusions of Law as having “limited utility”.
- Pre-Complaint Meeting Requirement for Sec. 208(b)(1) tariff complaints – the Commission proposes adding a rule requiring compliance with pre-complaint procedures for Sec. 208(b)(1) complaints subject to the 5 month deadline, so that Commission staff can narrow the factual and legal issues in dispute, exchange documents and discovery, discuss case management issues, discuss entry of a protective order for exchanging confidential information, and engage in settlement discussions.
- Uniform certification requirement of pre-filing “executive level” settlement efforts.
- Enforcement Bureau discretion to direct an initial status conference for all complaints.
- Extending availability “in appropriate circumstances” of Accelerated Docket treatment under the Sec. 208 Formal Complaint rules to Sec. 224 pole attachment complaints, though not to disability access complaints.
- Shot clocks for FCC action – the FCC asks if it should adopt shot clocks for all three types of formal complaint proceedings at issue here: should it be uniform or different for each type of proceeding? Should the EB have the ability to pause the clock (which often happens in practice in Sec. 208(b)(1) complaint proceedings)? What should be the consequences for agency failure to meet the deadline, and should the shot clock deadline be codified in the Commission’s rules (as other shot clock deadlines have been previously codified)?
Comments are due 30 days following publication in the Federal Register.
Note: This Bulletin is not intended as legal advice. Readers should seek professional legal counseling before acting on the information it contains.