[Federal Register Volume 61, Number 249 (Thursday, December 26, 1996)]
[Proposed Rules]
[Pages 67978-67990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32322]
[[Page 67978]]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 0 and 1
[CC Docket No. 96-238; FCC 96-460]
Formal Complaints Filed Against Common Carriers
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Commission adopted a Notice of Proposed Rulemaking
(``NPRM'') seeking comment on proposed changes to the rules for
processing formal complaints filed against common carriers. The NPRM
proposes rules 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 proposed rules require or encourage complainants and defendants to
engage in certain pre-filing activities, change service requirements,
modify the form of initial pleadings, shorten filing deadlines,
eliminate certain pleading opportunities that do not appear useful or
necessary, and eliminate or modify the discovery process.
DATES: Written comments by the public on the NPRM and the proposed and/
or modified information collections are due January 6, 1996. Reply
comments are due on January 31, 1996. Written comments by the Office of
Management and Budget (OMB) on the proposed and/or modified information
collections on or before February 24, 1997.
ADDRESSES: Comments and reply comments should be sent to the Office of
the Secretary, Federal Communications Commission, 1919 M Street, N.W.,
Suite 222, Washington, D.C. 20554, with a copy to Anita Cheng, Federal
Communications Commission, Enforcement Division, 2025 M Street, N.W.,
Room 6008, Washington, D.C. 20554. Parties should also file one copy of
any documents filed in this docket with the Commission's copy
contractor, International Transcription Services, Inc., 2100 M Street,
N.W., Suite 140, Washington, D.C. 20037. In addition to filing comments
with the Secretary, a copy of any comments on the information
collections contained herein should be submitted to Dorothy Conway,
Federal Communications Commission, Room 234, 1919 M Street, N.W.,
Washington, DC 20554, or via the Internet to dconway@fcc.gov and to
Timothy Fain, OMB Desk Officer, 10236 NEOB, 725--17th Street, N.W.,
Washington, DC 20503 or via the Internet to fain__t@al.eop.gov.
FOR FURTHER INFORMATION CONTACT: Anita Cheng, Enforcement Division,
Common Carrier Bureau, (202) 418-0960. For additional information
concerning the information collections contained in the NPRM contact
Dorothy Conway at (202) 418-0217, or via the Internet at
dconway@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's NPRM
in CC Docket No. 96-238, adopted on November 26, 1996 and released
November 27, 1996. The full text of the NPRM 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, 2100 M Street, N.W., Suite 140, Washington, D.C. 20037 (202)
857-3800.
Paperwork Reduction Act
The NPRM contains a proposed 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 the
NPRM, as required by the Paperwork Reduction Act of 1995, Public Law
No. 104-13. Public and agency comments are due at the same time as
other comments on the NPRM; OMB notification of action is due February
24, 1997. Comments should address: (a) whether the proposed or modified
information collection is necessary for the proper performance of the
functions of the Commission, including whether the information shall
have 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 Control Number: 3060-0411.
Title: Formal Complaints Against Common Carriers, Sections 1.720 -
1.735.
Type of Review: Revised collection.
Respondents: Individuals or households; business or other for-
profit, including small business; not-for-profit institutions; state,
local or tribal government.
----------------------------------------------------------------------------------------------------------------
Est. time per
Section/Title Number of response Total annual
respondents (hour(s)) burden (hours)
----------------------------------------------------------------------------------------------------------------
a. Designation of Agent for Service............................ 4,965 .5 2,482.5
b. Joint Statement of Stipulated Facts and Pleading Content
Requirements.................................................. 760 3 2,280
c. Orders Memorializing Rulings at Status Conferences.......... 760 1 760
d. Complaint Intake Form....................................... 760 .5 380
---------------
Total Annual Burden:....................................... ............... .............. 5,902.5
----------------------------------------------------------------------------------------------------------------
Estimated cost per respondent:
0.
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 NPRM proposes to require all carriers subject to the
Communications Act of 1934, as amended, to file in writing and
electronically, a designation of agent for service of process with the
Commission, to facilitate service of process in all Commission
proceedings.
Regarding changes to the pleading requirements, the NPRM proposes
that complaints must contain complete statements of relevant facts and
supporting documentation; certification that each complainant has
discussed the possibility of settlement with each defendant prior to
filing of the complaint; copies or descriptions of documents relevant
to the complaint; name, address and telephone number of all individuals
with information relevant to the complaint; a computation for any
damages claimed. The NPRM also proposes that answers must be filed
within 20 days of service of the formal complaint and must contain
complete statements of relevant facts and supporting documentation;
copies or descriptions of documents
[[Page 67979]]
relevant to the pleadings; name, address and telephone number of all
individuals with information relevant to the pleadings; and proposes to
prohibit general denials. The NPRM proposes to require all pleadings to
be accompanied by copies of relevant tariffs. The NPRM proposes to
prohibit replies unless authorized by the Commission and when
permitted, replies must contain copies or descriptions of documents
relevant to the pleadings; name, address and telephone number of all
individuals with information relevant to the pleadings. The NPRM
proposes to require all motions seeking Commission orders must be
accompanied by proposed orders in both hard copy and on computer disk.
The NPRM proposes to prohibit amendments to complaints to add new
claims or requests for relief. The NPRM further requires parties to
submit a joint statement of proposed stipulated facts and key legal
issues within 5 days after the answer is filed, as well as requiring
all relevant facts and documentation to be contained in each pleading.
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 NPRM also proposes to require parties to memorialize jointly,
in writing, Commission rulings made in a status conference and to
submit such writing, within 24 hours, to the Commission staff person
who made such rulings. This proposal would remove the burden of
memorializing oral rulings made in status conferences from the
Commission to the parties.
Finally, the NPRM proposes to require a complainant 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 would help to prevent the filing of
procedurally insufficient complaints.
Initial Regulatory Flexibility Analysis
Pursuant to Section 603(a) of the Regulatory Flexibility Act, 5
U.S.C. Section 603(a) (1981), the Commission concluded that the
proposals in the NPRM may have some economic impact on small business
entities, due to the proposals to require or encourage complainants and
defendants to engage in certain pre-filing activities, change service
requirements, modify the form of initial pleadings, shorten filing
deadlines, eliminate certain pleading opportunities that do not appear
useful or necessary, and eliminate or modify the discovery process.
Public comment is requested on the Initial Regulatory Flexibility
Analysis set forth fully in the NPRM. These comments must be filed in
accordance with the same filing deadlines set for comments on the other
issues in this NPRM but they must have a separate and distinct heading
designating them as responses to the Initial Regulatory Flexibility
Analysis.
Need for and Objectives of the Proposed Rules: The Commission is
issuing this Complaint NPRM to implement certain complaint provisions
contained in the Telecommunications Act of 1996 and to improve
generally the speed and effectiveness of its formal complaint process.
Legal Basis: The Complaint NPRM is adopted pursuant to Sections 1,
4(i), 4(j), 207 - 209, 260, 271, 274, and 275 of the Communications Act
of 1934, as amended, 47 U.S.C. Secs. 151, 154(i), 154(j), 207 - 209,
260, 271, 274, 275.
Description and Number of Small Entities Which May be Affected: The
proposals in this proceeding may have a significant impact on a
substantial number of small businesses as defined by Section 601(3) of
the Regulatory Flexibility Act. Under the Small Business Act, a ``small
business concern'' is one that: (1) is independently owned and
operated; (2) is not dominant in its field of operation; and (3) meets
any additional criteria established by the Small Business
Administration (SBA). SBA has defined a small business for Standard
Industrial Classification (SIC) categories 4812 (Radiotelephone
Communications) and 4813 (Telephone Communications, Except
Radiotelephone) as those which have fewer than 1,500 employees.
1. Telephone Companies (SIC 481)
Estimate of Potential Complainants that may be Classified as Small
Businesses. Section 208(a) provides that formal complaints against a
common carrier may be filed by ``[a]ny person, any body politic or
municipal organization.'' The FCC has no control as to the filing
frequency of complaints, nor as to the parties that will file
complaints. The filing of complaints depends entirely upon the
complainant's perception that it possesses a cause of action against a
common carrier subject to the Communications Act of 1934, as amended,
and it is the complainant's decision to file its complaint with the
FCC. Therefore the Commission is unable at this time to estimate the
number of future complainants that would qualify as small business
concerns under SBA's definition.
Estimate of Potential Defendants that may be Classified as Small
Businesses. The United States Bureau of the Census (``the Census
Bureau'') reports that, at the end of 1992, there were 3,497 firms
engaged in providing telephone services, as defined therein, for at
least one year. This number encompasses a broad category which contains
a variety of different subsets of carriers, including local exchange
carriers, interexchange carriers, competitive access providers,
cellular carriers, mobile service carriers, operator service providers,
pay telephone operators, PCS providers, covered SMR providers, and
resellers. It seems certain that some of those 3,497 telephone service
firms may not qualify as small entities or small incumbent LECs because
they are not ``independently owned and operated.'' For example, a PCS
provider that is affiliated with an interexchange carrier having more
than 1,500 employees would not meet the definition of a small business.
It seems reasonable to conclude, therefore, that fewer than 3,497
telephone service firms are small entity telephone service firms or
small incumbent LECs that may be affected by this Order. The Commission
seeks comment on this conclusion. The Commission estimates below the
potential defendants affected by this order by service category. The
Commission seeks comment on these estimates.
Wireline Carriers and Service Providers. SBA has developed a
definition of small entities for telephone communications companies
other than radiotelephone (wireless) companies. The Census Bureau
reports that, there were 2,321 such telephone companies in operation
for at least one year at the end of 1992. All but 26 of the 2,321 non-
radiotelephone companies listed by the Census Bureau were reported to
have fewer than 1,000 employees. Thus, even if all 26 of those
companies had more than 1,500 employees, there would still be 2,295
non-radiotelephone companies that might qualify as small entities or
small incumbent LECs. Although it seems certain that some of these
carriers are not independently owned and operated, the Commission is
unable at this time to estimate with greater precision the number of
wireline carriers and service providers that would qualify as small
business concerns under SBA's definition. Consequently, the Commission
estimates that there are fewer than 2,295 small entity telephone
communications companies other than radiotelephone companies that may
be affected by the decisions and rules adopted in this Order.
Local Exchange Carriers. Neither the Commission nor SBA has
developed a definition of small providers of local
[[Page 67980]]
exchange services (LECs). The closest applicable definition under SBA
rules is for telephone communications companies other than
radiotelephone (wireless) companies. The most reliable source of
information regarding the number of LECs nationwide of which the
Commission is aware appears to be the data that it collects annually in
connection with the Telecommunications Relay Service (TRS). According
to the Commission's most recent data, 1,347 companies reported that
they were engaged in the provision of local exchange services. Although
it seems certain that some of these carriers are not independently
owned and operated, or have more than 1,500 employees, the Commission
is unable at this time to estimate with greater precision the number of
LECs that would qualify as small business concerns under SBA's
definition. Consequently, the Commission estimate that there are fewer
than 1,347 small incumbent LECs that may be affected by the decisions
and rules adopted in this Order.
Interexchange Carriers. Neither the Commission nor SBA has
developed a definition of small entities specifically applicable to
providers of interexchange services (IXCs). The closest applicable
definition under SBA rules is for telephone communications companies
other than radiotelephone (wireless) companies. The most reliable
source of information regarding the number of IXCs nationwide of which
the Commission is aware appears to be the data collected annually in
connection with TRS. According to the Commission's most recent data, 97
companies reported that they were engaged in the provision of
interexchange services. Although it seems certain that some of these
carriers are not independently owned and operated, or have more than
1,500 employees, the Commission is unable at this time to estimate with
greater precision the number of IXCs that would qualify as small
business concerns under SBA's definition. Consequently, the Commission
estimates that there are fewer than 97 small entity IXCs that may be
affected by the decisions and rules adopted in this Order.
Competitive Access Providers. Neither the Commission nor SBA has
developed a definition of small entities specifically applicable to
providers of competitive access services (CAPs). The closest applicable
definition under SBA rules is for telephone communications companies
other than radiotelephone (wireless) companies. The most reliable
source of information regarding the number of CAPs nationwide of which
the Commission is aware appears to be the data that it collects
annually in connection with the TRS. According to the Commission's most
recent data, 30 companies reported that they were engaged in the
provision of competitive access services. Although it seems certain
that some of these carriers are not independently owned and operated,
or have more than 1,500 employees, the Commission is unable at this
time to estimate with greater precision the number of CAPs that would
qualify as small business concerns under SBA's definition.
Consequently, the Commission estimates that there are fewer than 30
small entity CAPs that may be affected by the decisions and rules
adopted in this Order.
Operator Service Providers. Neither the Commission nor SBA has
developed a definition of small entities specifically applicable to
providers of operator services. The closest applicable definition under
SBA rules is for telephone communications companies other than
radiotelephone (wireless) companies. The most reliable source of
information regarding the number of operator service providers
nationwide of which the Commission is aware appears to be the data that
it collects annually in connection with the TRS. According to the
Commission's most recent data, 29 companies reported that they were
engaged in the provision of operator services. Although it seems
certain that some of these companies are not independently owned and
operated, or have more than 1,500 employees, the Commission is unable
at this time to estimate with greater precision the number of operator
service providers that would qualify as small business concerns under
SBA's definition. Consequently, the Commission estimates that there are
fewer than 29 small entity operator service providers that may be
affected by the decisions and rules adopted in this Order.
Pay Telephone Operators. Neither the Commission nor SBA has
developed a definition of small entities specifically applicable to pay
telephone operators. The closest applicable definition under SBA rules
is for telephone communications companies other than radiotelephone
(wireless) companies. The most reliable source of information regarding
the number of pay telephone operators nationwide of which the
Commission is aware appears to be the data that it collects annually in
connection with the TRS. According to the Commission's most recent
data, 197 companies reported that they were engaged in the provision of
pay telephone services. Although it seems certain that some of these
carriers are not independently owned and operated, or have more than
1,500 employees, the Commission is unable at this time to estimate with
greater precision the number of pay telephone operators that would
qualify as small business concerns under SBA's definition.
Consequently, the Commission estimates that there are fewer than 197
small entity pay telephone operators that may be affected by the
decisions and rules adopted in this Order.
Wireless (Radiotelephone) Carriers. SBA has developed a definition
of small entities for radiotelephone (wireless) companies. The Census
Bureau reports that there were 1,176 such companies in operation for at
least one year at the end of 1992. According to SBA's definition, a
small business radiotelephone company is one employing fewer than 1,500
persons. The Census Bureau also reported that 1,164 of those
radiotelephone companies had fewer than 1,000 employees. Thus, even if
all of the remaining 12 companies had more than 1,500 employees, there
would still be 1,164 radiotelephone companies that might qualify as
small entities if they are independently owned and operated. Although
it seems certain that some of these carriers are not independently
owned and operated, the Commission is unable at this time to estimate
with greater precision the number of radiotelephone carriers and
service providers that would qualify as small business concerns under
SBA's definition. Consequently, the Commission estimates that there are
fewer than 1,164 small entity radiotelephone companies that may be
affected by the decisions and rules adopted in this Order.
Cellular Service Carriers. Neither the Commission nor SBA has
developed a definition of small entities specifically applicable to
providers of cellular services. The closest applicable definition under
SBA rules is for telephone communications companies other than
radiotelephone (wireless) companies. The most reliable source of
information regarding the number of cellular service carriers
nationwide of which the Commission is aware appears to be the data that
it collects annually in connection with the TRS. According to the
Commission's most recent data, 789 companies reported that they were
engaged in the provision of cellular services. Although it seems
certain that some of these carriers are not independently owned and
operated, or have more than 1,500 employees, the Commission is unable
at this time to estimate with greater precision the number of cellular
service carriers that
[[Page 67981]]
would qualify as small business concerns under SBA's definition.
Consequently, the Commission estimates that there are fewer than 789
small entity cellular service carriers that may be affected by the
decisions and rules adopted in this Order.
Mobile Service Carriers. Neither the Commission nor SBA has
developed a definition of small entities specifically applicable to
mobile service carriers, such as paging companies. The closest
applicable definition under SBA rules is for telephone communications
companies other than radiotelephone (wireless) companies. The most
reliable source of information regarding the number of mobile service
carriers nationwide of which the Commission is aware appears to be the
data that it collects annually in connection with the TRS. According to
the Commission's most recent data, 117 companies reported that they
were engaged in the provision of mobile services. Although it seems
certain that some of these carriers are not independently owned and
operated, or have more than 1,500 employees, the Commission is unable
at this time to estimate with greater precision the number of mobile
service carriers that would qualify under SBA's definition.
Consequently, the Commission estimates that there are fewer than 117
small entity mobile service carriers that may be affected by the
decisions and rules adopted in this Order.
Broadband PCS Licensees. The broadband PCS spectrum is divided into
six frequency blocks designated A through F. As set forth in 47 CFR
Sec. 24.720(b), the Commission has defined ``small entity'' in the
auctions for Blocks C and F as a firm that had average gross revenues
of less than $40 million in the three previous calendar years. The
Commission's definition of a ``small entity'' in the context of
broadband PCS auctions has been approved by SBA. The Commission has
auctioned broadband PCS licenses in Blocks A, B, and C. The Commission
does not have sufficient data to determine how many small businesses
bid successfully for licenses in Blocks A and B. There were 90 winning
bidders that qualified as small entities in the Block C auction. Based
on this information, the Commission concludes that the number of
broadband PCS licensees affected by the decisions in this Order
includes, at a minimum, the 90 winning bidders that qualified as small
entities in the Block C broadband PCS auction.
At present, no licenses have been awarded for Blocks D, E, and F of
broadband PCS spectrum. Therefore, there are no small businesses
currently providing these services. However, a total of 1,479 licenses
will be awarded in the D, E, and F Block broadband PCS auctions, which
are scheduled to begin on August 26, 1996. Of the 153 qualified bidders
for the D, E, and F Block PCS auctions, 105 were small businesses.
Eligibility for the 493 F Block licenses is limited to entrepreneurs
with average gross revenues of less than $125 million. There are 114
eligible bidders for the F Block. The Commission cannot estimate,
however, the number of these licenses that will be won by small
entities under this definition, nor how many small entities will win D
or E Block licenses. Given that nearly all radiotelephone companies
have fewer than 1,000 employees and that no reliable estimate of the
number of prospective D, E, and F Block licensees can be made, the
Commission assumes for purposes of this IRFA, that all of the licenses
in the D, E, and F Block Broadband PCS auctions may be awarded to small
entities under the Commission's rules, which may be affected by the
decisions and rules adopted in this Order.
SMR Licensees. Pursuant to 47 CFR Sec. 90.814(b)(1), the Commission
has defined ``small entity'' in auctions for geographic area 800 MHz
and 900 MHz SMR licenses as a firm that had average annual gross
revenues of less than $15 million in the three previous calendar years.
This definition of a ``small entity'' in the context of 800 MHz and 900
MHz SMR has been approved by the SBA. The rules adopted in this Order
may apply to SMR providers in the 800 MHz and 900 MHz bands that either
hold geographic area licenses or have obtained extended implementation
authorizations. The Commission does not know how many firms provide 800
MHz or 900 MHz geographic area SMR service pursuant to extended
implementation authorizations, nor how many of these providers have
annual revenues of less than $15 million. The Commission assumes, for
purposes of this IRFA, that all of the extended implementation
authorizations may be held by small entities, which may be affected by
the decisions and rules adopted in this Order.
The Commission recently held auctions for geographic area licenses
in the 900 MHz SMR band. There were 60 winning bidders who qualified as
small entities in the 900 MHz auction. Based on this information, the
Commission concludes that the number of geographic area SMR licensees
affected by the rule adopted in this Order includes these 60 small
entities. No auctions have been held for 800 MHz geographic area SMR
licenses. Therefore, no small entities currently hold these licenses. A
total of 525 licenses will be awarded for the upper 200 channels in the
800 MHz geographic area SMR auction. However, the Commission has not
yet determined how many licenses will be awarded for the lower 230
channels in the 800 MHz geographic area SMR auction. There is no basis,
moreover, on which to estimate how many small entities will win these
licenses. Given that nearly all radiotelephone companies have fewer
than 1,000 employees and that no reliable estimate of the number of
prospective 800 MHz licensees can be made, the Commission assumes, for
purposes of this IRFA, that all of the licenses may be awarded to small
entities who, thus, may be affected by the decisions in this Order.
Resellers. Neither the Commission nor SBA has developed a
definition of small entities specifically applicable to resellers. The
closest applicable definition under SBA rules is for all telephone
communications companies. The most reliable source of information
regarding the number of resellers nationwide of which the Commission is
aware appears to be the data that it collects annually in connection
with the TRS. According to the Commission's most recent data, 206
companies reported that they were engaged in the resale of telephone
services. Although it seems certain that some of these carriers are not
independently owned and operated, or have more than 1,500 employees,
the Commission is unable at this time to estimate with greater
precision the number of resellers that would qualify as small business
concerns under SBA's definition. Consequently, the Commission estimates
that there are fewer than 206 small entity resellers that may be
affected by the decisions and rules adopted in this Order.
2. Cable System Operators (SIC 4841)
Cable Systems: SBA has developed a definition of small entities for
cable and other pay television services, which includes all such
companies generating less than $11 million in revenue annually. This
definition includes cable systems operators, closed circuit television
services, direct broadcast satellite services, multipoint distribution
systems, satellite master antenna systems and subscription television
services. According to the Census Bureau, there were 1,323 such cable
and other pay television services generating less than $11 million in
revenue that were in operation for at least one year at the end of
1992.
[[Page 67982]]
The Commission has developed its own definition of a small cable
system operator for the purposes of rate regulation. Under the
Commission's rules, a ``small cable company,'' is one serving fewer
than 400,000 subscribers nationwide. Based on the Commission's most
recent information, the Commission estimates that there were 1,439
cable operators that qualified as small cable system operators at the
end of 1995. Since then, some of those companies may have grown to
serve over 400,000 subscribers, and others may have been involved in
transactions that caused them to be combined with other cable
operators. Consequently, the Commission estimates that there are fewer
than 1,439 small entity cable system operators that may be affected by
the decisions and rules adopted in this Order.
The Communications Act also contains a definition of a small cable
system operator, which is ``a cable operator that, directly or through
an affiliate, serves in the aggregate fewer than 1 percent of all
subscribers in the United States and is not affiliated with any entity
or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' The Commission has determined that there are 61,700,000
subscribers in the United States. Therefore, the Commission found that
an operator serving fewer than 617,000 subscribers shall be deemed a
small operator, if its annual revenues, when combined with the total
annual revenues of all of its affiliates, do not exceed $250 million in
the aggregate. Based on available data, the Commission finds that the
number of cable operators serving 617,000 subscribers or less totals
1,450. Although it seems certain that some of these cable system
operators are affiliated with entities whose gross annual revenues
exceed $250,000,000, the Commission is unable at this time to estimate
with greater precision the number of cable system operators that would
qualify as small cable operators under the definition in the
Communications Act.
Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements: Section 1.721 of the proposed rules would
require all complainants to complete and submit a Formal Complaint
Intake Form with their complaints. The intake form requirement is
designed to help complainants avoid procedural and substantive defects
that might affect the staff's ability to quickly process complaints and
delay full responses by defendant carriers to otherwise legitimate
complaints. In addition, the completed form should enable the staff and
the defendant carriers to quickly identify the specific statutory
provisions under which relief is being sought in the complaint. Because
the proposed form would solicit information that would be already
contained in the body of the formal complaint, no additional
professional skills would be necessary to complete the form.
Potential Impact: Some of the proposed requirements in this
Complaint NPRM may have a significant economic impact on small business
entities. Generally, this Complaint NPRM proposes to require or
encourage complainants and defendants to engage in certain pre-filing
activities, change service requirements, modify the form of initial
pleadings, shorten filing deadlines, eliminate certain pleading
opportunities that do not appear useful or necessary, and modify the
discovery process.
Pre-Filing Activities and Discovery: The Commission proposes to
require a complainant to do the following: certify that it discussed
the possibility of settlement with the defendant carrier's
representative(s) prior to filing the complaint and attach certain
written documentation. The Commission seeks comment on limiting
discovery. The Commission also seeks comment on the feasibility of
allowing the parties to a complaint proceeding to agree among
themselves to a cost-recovery system as a basis for facilitating the
prompt identification and exchange of information. While these proposed
rules may place a greater burden on a small business entity to provide
better legal and factual support early in the process, the Commission
tentatively concludes that it does not significantly alter the level of
evidentiary and legal support that would be ultimately required of
parties in formal complaint actions pursuant to the current rules. It
may, however, make it more difficult for all complainants, including
small business, to gather the information needed to prevail on their
complaints. Potentially higher initial costs may be somewhat offset by
the prompt resolution of complaints and the avoidance of protracted and
costly discovery proceedings and briefing requirements. It has been
noted, for example, that the overall litigation costs of ``rocket
docket'' cases in the U.S. District Court for the Eastern District of
Virginia are lower than the costs of cases that take longer to resolve.
Indeed, by requiring better and more complete submissions earlier in
the process, this proposed rule reduces the need for discovery and
other information filings, thereby significantly reducing the burden on
small business entities. The Commission seeks comment on this tentative
conclusion and any other potential impact of these proposals on small
business entities.
Format and Content Requirements and Other Required Submissions: The
Commission proposes to require parties to submit a joint statement of
stipulated facts and key legal issues five days after the answer is
filed. The Commission also proposes to require all pleadings that seek
Commission orders, as well as the orders themselves, to contain
proposed findings of fact and conclusions of law, with supporting legal
analysis, and to require these submissions to be in both hard copy and
on computer disks in ``read only'' mode and formatted in WordPerfect
5.1 for Windows, or as otherwise directed by the staff in particular
cases. The Commission also proposes to require the complaint, answer,
and any authorized reply to include: (1) the name, address and
telephone number of each individual likely to have discoverable
information relevant to the disputed facts alleged 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. While these proposed rules may place a
greater burden on a small business entity to provide better legal and
factual support early in the process, the Commission tentatively
concludes that it does not significantly alter the level of evidentiary
and legal support that would be ultimately required of parties in
formal complaint actions pursuant to the current rules. It may,
however, make it more difficult for all complainants, including small
business, to gather the information needed to prevail on their
complaints. Potentially higher initial costs may be somewhat offset by
the prompt resolution of complaints and the avoidance of protracted and
costly discovery proceedings and briefing requirements. It has been
noted, for example, that the overall litigation costs of ``rocket
docket'' cases in the U.S. District Court for the Eastern District of
Virginia are lower than the costs of cases that take longer to resolve.
Indeed, by requiring better and more complete submissions earlier in
the process, this proposed rule reduces the need for discovery and
other information filings, thereby significantly reducing the burden on
small business entities. The Commission seeks comment on this
[[Page 67983]]
tentative conclusion and any other potential impact of these proposals
on small business entities.
Damages. The Commission proposes to allow bifurcation of liability
and damages issues by permitting a complainant to file a supplemental
complaint for damages after a finding of liability. In such a case, the
Commission would defer adjudication of all damages issues until after a
finding of liability. The Commission also proposes to require, in
certain cases after liability has been found, defendants to place a sum
of money in an interest-bearing escrow account, to cover part or all of
the damages for which they may be found liable. While the bifurcation
of liability and damages issues may require small business entities to
postpone litigation of damages issues, any increased costs will be
somewhat offset by the prompt resolution of the liability issues in
complaints and the avoidance of protracted and costly discovery
proceedings and briefing requirements in the initial proceeding. The
proposal to require defendants to place a sum of money in an interest-
bearing escrow account may have a significant economic impact on
defendants that are small business entities without sufficient funds.
The Commission seeks comment on this tentative conclusion and any other
potential impact of these proposals on small business entities.
Significant Alternatives to the Proposed Rules Which Minimize
Significant Economic Impact on Small Entities and Accomplish Stated
Objectives: The Commission has included a proposal to waive many of the
proposed pleading requirements with respect to complainants and other
entities that can demonstrate good cause. Upon an appropriate showing
of financial hardship or other public interest factors, the Commission
proposes to waive format and content requirements under Section 1.721
of the rules. Furthermore, the proposed rules apply only to Section 208
complaints that are filed with the Commission. Complainants wishing to
assure themselves of the ability to utilize full discovery, for
example, are not precluded from filing their complaints in federal
district court. The impact on small business entities of the proposal
to require defendants to place a sum of money in an interest-bearing
escrow account would be minimized by the fact that this measure would
be implemented under standards similar to those used for determining
whether a preliminary injunction is appropriate, e.g., likelihood of
success on the merits, irreparable harm, etc. In addition, the
Complaint NPRM solicits comments on a variety of alternatives.
Federal Rules that May Overlap, Duplicate, or Conflict with the
Proposed Rules: None.
Summary of Notice of Proposed Rule Making
I. Background
1. In February 1996, Congress passed and the President signed the
``Telecommunications Act of 1996'' (``1996 Act''). The 1996 Act
prescribes deadlines ranging from 90 days to 5 months for the
resolution of certain types of complaints against the Bell Operating
Companies (``BOCs'') and other telecommunications carriers that are
subject to the 1996 Act's requirements. The complaint provisions added
by the 1996 Act that are relevant to this NPRM are Sections 208, 255,
260, 271, 274, and 275. This NPRM proposes rules necessary to implement
those complaint resolution provisions.
II. Discussion
2. The NPRM seeks comment on changes to the Commission's current
rules for processing formal complaints against carriers that would: (1)
require or encourage complainants and defendants to engage in certain
pre-filing activities designed to resolve or narrow issues and compile
and/or exchange better factual information before resort to the
complaint process; (2) eliminate delays in serving complaints on
defendant carriers; (3) improve the format and content of complaints,
answers and other pleadings filed by parties; (4) eliminate certain
pleading opportunities that do not appear useful or necessary; and (5)
limit or eliminate discovery.
A. Pre-Filing Procedures and Activities
3. The Commission asks interested parties to identify specific pre-
filing activities available to potential complainants and 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. The
Commission proposes to require a complainant to certify that it
discussed the possibility of settlement with the defendant carrier's
representative(s) prior to filing the complaint.
4. The Commission also seeks comment on whether a committee
composed of industry members would serve a needed role or useful
purpose in addressing disputes over technical and other business
disputes, before such disputes are brought before the Commission in the
form of formal complaint actions that must be resolved under expedited
procedures. Participation in a proceeding before such a committee would
be strictly voluntary.
B. Service
5. The primary goal of the Commission in proposing changes to the
current service procedures is to prevent the delay caused by those
procedures, which implement the Section 208 requirement that the
Commission serve formal complaints on defendant carriers. The
Commission proposes to authorize or require a complainant to effect
service simultaneously on the following persons: the defendant carrier,
the Commission, and the appropriate staff office. The complainant would
also be required to serve a copy of the complaint and associated
attachments directly on the Chief of the division or branch responsible
for handling the complaint. The Commission proposes to provide for a
separate lock box at the Mellon Bank in Pittsburgh for complaints
against wireless telecommunications service providers to help ensure
the prompt receipt and handling of such complaints by the Wireless
Telecommunications Bureau. The Commission also proposes 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.
6. In applying the requirement in Section 208 of the Act that the
Commission serve the complaint on the defendant carrier, the staff
routinely reviews complaints in the first instance and determines
whether they meet the requirements under the Act and the Commission's
rules. To accomplish this objective while eliminating the delay caused
by having the Commission serve the defendant, the Commission also
proposes to require a complainant to submit a completed intake form
with any formal complaint as part of the filing requirement to indicate
that the complaint meets the various threshold requirements for stating
a cause of action under the Act and the Commission's rules. Finally,
the Commission proposes to require parties to serve all subsequent
pleadings by facsimile to be followed by mail delivery, or by overnight
delivery.
C. Format and Content Requirements
7. The 1996 Act's complaint resolution deadlines necessitate
substantial modification of the content requirements for pleadings
filed in formal complaint proceedings. These
[[Page 67984]]
modifications must have the effect of creating complete records for the
disposition of formal complaints. The Commission's overall goals are to
improve the utility, quality, and content of the complaint, answer, and
other filings submitted by parties in formal complaint cases and to
expedite the issuance of orders that resolve procedural and substantive
issues.
8. The Commission proposes to require any party to a formal
complaint proceeding, in its complaint, answer, or any other pleading
required during the complaint process, to include full statements of
relevant facts, and to attach to such pleadings supporting
documentation and affidavits of persons with knowledge of the facts
stated in the pleadings. The Commission also proposes to require all
pleadings that seek Commission orders, including complaints, answers,
briefs, reply briefs, and motions, as well as the orders themselves, to
contain findings of fact and conclusions of law, and to require these
submissions to be in both hard copy and on computer disks in ``read
only'' mode and formatted in WordPerfect 5.1 for Windows, or as
otherwise directed by the staff in particular cases. In recognition of
the fact that many of the proposed pleading requirements could be
unduly burdensome on certain individuals or parties, the Commission
proposes to waive format and content requirements upon an appropriate
showing of financial hardship or other public interest factors. The
Commission also proposes to require parties to append copies of
relevant tariffs or tariff provisions that are relied upon in a
pleading.
D. Answers
9. The Commission proposes to reduce the permissible time for a
defendant to file an answer to a complaint from 30 to 20 days after
service or receipt of the complaint.
E. Status Conferences
10. The Commission proposes to require that, unless otherwise
ordered by the staff, an initial status conference take place in all
formal complaint proceedings 10 business days after the defendant files
its answer to the complaint. At the status conference, the Commission
and parties may discuss claims and defenses, settlement possibilities,
scheduling, whether discovery shall be permitted, and if so, a
discovery plan. The parties would be required to memorialize jointly,
in writing, any Commission rulings made during these status
conferences.
F. Discovery
11. The Commission's goal in modifying the discovery rules is to
limit or eliminate discovery while still permitting parties the
opportunity to develop a sufficient record for resolution of their
dispute. It is the Commission's belief that while the parties should
continue to bear the burden of developing an adequate record, that
burden should be borne earlier in the proceeding, upon the filing of
the initial pleadings rather than upon discovery. Therefore the
Commission seeks comment on limiting or eliminating discovery as a
matter of right. It is anticipated that the proposed requirements for
complaints, answers, and proposed stipulated facts will, in a majority
of cases, present a sufficient factual record to enable the Commission
to rely upon the initial pleadings alone to determine the outcome of
the case. The Commission also seeks comment on the feasibility of
allowing the parties to a complaint proceeding to agree among
themselves to a cost-recovery system as a basis for facilitating the
prompt identification and exchange of information.
12. The Commission also proposes to authorize the Bureau, on its
own motion, to refer certain disputes to an administrative law judge
for expedited hearing on factual issues.
G. Cease, Cease-and-Desist Orders and Other Forms of Interim Relief
13. The Commission sought comment on the legal and evidentiary
standards necessary for obtaining cease or cease-and-desist orders
pursuant to Title II of the Act and other forms of interim relief in
Section 208 formal complaint cases, in order to expedite the issuance
of cease or cease-and-desist orders within the 1996 Act's deadlines and
to create more certainty regarding the legal and factual basis for
granting interim relief.
H. Damages
14. The Commission's goal is to eliminate or minimize the delay
endemic to the resolution of damages issues. The Commission proposes to
allow bifurcation of liability and damages issues by permitting a
complainant to file supplemental complaint for damages after a finding
of liability. In such a case, the Commission would defer adjudication
of all damages issues until after a finding of liability. This approach
would enable the Commission to make a liability finding within the
statutory deadline and still preserve the complainant's right to a
damage award. The Commission also proposes to require that any
complaint seeking an award of damages contain a detailed computation of
damages, such that the Commission's adjudication of damages would end
with a determination about the sufficiency of the computation formula
submitted by the complainant rather than a finding as to the exact
amount of damages, if any, owed to the complainant. The Commission also
proposes to establish, following a finding of liability, a limited
period during which the parties could engage in settlement negotiations
or submit their damage claims to voluntary alternative dispute
resolution mechanisms in lieu of further proceedings before the
Commission. The Commission also seeks comment on a proposal to refer
damages issues to an administrative law judge for decision once
liability for damages has been determined by the Commission or if the
parties agree to mediation by an administrative law judge. The
Commission proposes to require, in certain cases after liability has
been found, defendants to place a sum of money in an interest-bearing
escrow account, to cover part or all of the damages for which they may
be found liable.
I. Cross-Complaints and Counterclaims
15. The Commission proposes to allow compulsory counterclaims,
those arising out of the same transaction or occurrence that is the
subject matter of the opposing party's claim, only if the defendant
files them concurrently with the answer. If a defendant fails to file
such a compulsory counterclaim with its answer, it will be barred. A
defendant may, but is not required to, file permissive counterclaims
(those not arising out of the same transaction or occurrence) against
the complainant. In addition, a defendant may, but is not required to,
file cross-claims that arise out of the same transaction against co-
parties. To the extent that the defendant elects to file such
permissive counterclaims and cross-claims, it must file these pleadings
concurrently with its answer. The defendant always has the option of
filing any barred permissive counterclaims or cross-claims in a
separate proceeding, provided that the statute of limitations has not
run.
16. In addition, the Commission will revise its rules to clarify
the applicability of filing fees to both complaints and cross-
complaints.
J. Replies
17. The Commission proposes to prohibit replies to oppositions to
motions. The Commission also proposes to prohibit replies to answers
unless
[[Page 67985]]
specifically authorized by the Commission, generally upon a
complainant's motion showing that there is good cause to reply to
affirmative defenses that are supported by factual allegations that are
different from any denials also contained in the answer.
K. Motions
18. In cases where discovery is conducted, the Commission proposes
to require parties filing Motions to Compel to certify that they have
made a good faith attempt to resolve the matter before filing the
motion, in order to limit Commission involvement in conflicts that
should be easily resolved. The Commission also proposes to make failure
to file an opposition to a motion possible grounds for granting the
motion, as well as shorten the deadline for filing oppositions to
motions from ten to five business days. Finally, the Commission
proposes to prohibit amendment of complaints except for changes
necessary under 47 CFR Sec. 1.720(g), which requires that information
and supporting authority be current and updated as necessary in a
timely manner.
L. Confidential or Proprietary Information and Materials
19. The Commission proposes to allow parties to designate as
proprietary any materials generated in the course of a formal
complaint, and not limit such designation to materials produced in
response to discovery. The Commission also seeks comment on whether
additional protections are needed in light of the short complaint
resolution deadlines in the 1996 Act and the Commission's proposals in
this NPRM to eliminate certain pleading and discovery opportunities.
M. Other Required Submissions
20. The Commission proposes to require parties to submit a joint
statement of stipulated facts and key legal issues five days after the
answer is filed. The Commission feels that drafting such a statement
would promote agreement on a significant number of the disputed facts
and legal issues, and that the statement itself would serve as a guide
for the Commission to determine whether discovery is necessary in a
particular case. Additionally, the Commission seeks comment on
streamlining the current briefing process by prohibiting the filing of
briefs in cases where discovery is not conducted, by continuing to
allow the parties to file briefs, but permitting the staff to limit the
scope of such briefs, or by shortening the deadline by which briefs are
due. The Commission proposes to limit the page length of briefs to 25
pages for initial briefs and 10 pages for reply briefs.
N. Sanctions
21. The Commission seeks comment on what sanctions and/or remedies
would be necessary or appropriate to ensure full compliance with and
satisfaction of the proposed rule requirements.
O. Other Matters
22. The Commission seeks comment on two matters presented by
certain language in Section 271 relative to other complaint provisions
in the Act. First, the Commission sought comment on its tentative
conclusion that the phrase ``act on'' as used in Section 271(d)(6)(B)
encompasses actions taken by the Bureau and need not necessarily be
final action by the Commission. Second, the Commission noted that the
90-day complaint resolution deadline for Section 271(d) complaints
applies only in the absence of an agreement otherwise by the parties to
the complaint action. The Commission sought comment on specific
procedures and timetables that could be employed to ensure early
notification to the Commission of waivers or extension agreements under
Section 271(d)(6)(B) and to avoid the unnecessary expenditure of time
and resources by the staff and parties to such a complaint action.
III. Comments and Ex Parte Requirements
23. Pursuant to Sections 1.415 and 1.419 of the Commission's rules,
47 CFR Secs. 1.415, 1.419, all interested parties may file comments on
the matters discussed in the NPRM and on proposed rules contained in
the appendices by January 6, 1997 and reply comments on or before
January 31, 1997. Parties are also invited to submit, in conjunction
with their comments or reply comments, proposed text for rules that the
Commission could adopt in this proceeding. Specific rule proposals
should be filed as an appendix to a party's comments or reply comments.
Such appendices may include only proposed text for rules that would
implement proposals set forth in the parties' comments and reply
comments in this proceeding, and may not include any comments or
arguments. Proposed rules should be provided in the format used for
rules in the Code of Federal Regulations, and should otherwise conform
to the Comment Filing Procedures set forth in this NPRM.
24. To file formally in this proceeding, participants must file an
original and six copies of all comments, reply comments, and supporting
comments. If participants want each Commissioner to receive a personal
copy of their comments, they must file an original and nine copies. In
addition, participants are encouraged to submit two additional copies
directly to the Common Carrier Bureau, Enforcement Division, Room 6008,
2025 M Street, N.W., Washington, D.C. 20554. Comments and reply
comments should be sent to the Office of the Secretary, Federal
Communications Commission, 1919 M Street, N.W., Room 222, Washington,
D.C. 20554. Parties should also file one copy of any documents filed in
this docket with the Commission's copy contractor, International
Transcription Services, Inc., 2100 M Street, N.W., Suite 140,
Washington, D.C. 20037. Comments and reply comments will be available
for public inspection during regular business hours in the FCC
Reference Center, 1919 M Street, N.W., Room 239, Washington, D.C.
20554.
25. In order to facilitate review of comments and reply comments,
both by parties and the Commission, comments and reply comments should
include a summary of the substantive arguments raised in the pleading.
26. Parties are also asked to submit comments and reply comments on
diskette. Such diskette submissions would be in addition to the formal
filing requirements addressed above. Parties submitting diskettes
should submit them to Anita Cheng, Common Carrier Bureau, Enforcement
Division, Room 6008, 2025 M Street, N.W., Washington, D.C. 20554. Each
disk must be a standard 3\1/2\'' magnetic disk, formatted to be
readable by high-density 1.44 MB floppy drives operating under MS-DOS
(3.X or later versions). Participants are encouraged to submit
documents formatted in WordPerfect 5.1 for Windows. Otherwise, parties
must submit the documents formatted in both ASCII and any word
processing program. The diskette should be submitted in ``read only''
mode. The diskette should be clearly labelled with the party's name,
proceeding, type of pleading (comment or reply comments) and date of
submission. The diskette should be accompanied by a cover letter.
27. This is a non-restricted notice and comment rule making
proceeding. Ex parte presentations are permitted, except during the
Sunshine Agenda period, provided they are disclosed as provided in
Commission rules. See
[[Page 67986]]
generally 47 CFR Secs. 1.1202, 1.1203, and 1.1206(a).
IV. Conclusion
28. In this NPRM, the Commission proposes to amend its rules
governing the filing of formal complaints to implement certain
complaint provisions in the 1996 Act and establish procedures necessary
to facilitate the full and fair resolution of complaints filed under
such provisions within the deadlines established by the
Telecommunications Act of 1996. The Commission's goal is to establish
rules of practice and procedure which, by providing a forum for prompt
resolution of complaints of unreasonable, discriminatory, or otherwise
unlawful conduct by telecommunications carriers, will foster rather
than impede robust competition in all telecommunications markets.
VI. Ordering Clauses
29. Accordingly, it is ordered that pursuant to Sections 1, 4, 201-
205, 208, 215, 218, 220 of the Communications Act of 1934, as amended,
47 U.S.C. Secs. 151, 154, 201-205, 208, 215, 218 and 220, a notice of
proposed rulemaking is hereby adopted.
30. It is further ordered that the Chief of the Common Carrier
Bureau is delegated authority to require the submission of additional
information, make further inquiries, and modify the dates and
procedures if necessary to provide for a more complete record and a
more efficient proceeding.
31. It is further ordered that the Secretary shall cause a copy of
this NPRM, including the Initial Regulatory Flexibility Analysis, to be
sent to the Chief Counsel for Advocacy of the Small Business
Administration in accordance with Section 603(a) of the Regulatory
Flexibility Act, 5 U.S.C. Section 603(a) (1981). The Secretary shall
also cause a summary of this Notice to appear in the Federal Register.
List of Subjects
47 CFR Part 0
Organization and functions (Government agencies).
47 CFR Part 1
Communications common carriers.
Federal Communications Commission.
Shirley S. Suggs,
Chief, Publications Branch.
Rule Changes
Parts 0 and 1 of Title 47 of the Code of Federal Regulations are
proposed to be amended as follows:
PART 0--COMMISSION ORGANIZATION
1. The authority citation for Part 0 continues to read as follows:
Authority: Sec. 5, 48 Stat. 1068, as amended, 47 U.S.C. 155,
225, unless otherwise noted.
2. Section 0.291 is proposed to be amended by revising paragraph
(d) to read as follows:
Sec. 0.291 Authority delegated.
* * * * *
(d) Authority to designate for hearing. The Chief, Common Carrier
Bureau shall not have authority to designate for hearing any formal
complaints which present novel questions of law or policy which cannot
be resolved under outstanding precedents or guidelines. The Chief,
Common Carrier Bureau shall not have authority to designate for hearing
any applications except applications for facilities where the issues
presented relate solely to whether the applicant has complied with
outstanding precedents and guidelines.
* * * * *
PART 1--PRACTICE AND PROCEDURE
3. The authority citation for Part 1 continues to read as follows:
Authority: 47 U.S.C. 151, 154, 303, and 309(j) unless otherwise
noted.
4. Section 1.47 is proposed to be amended by revising paragraph (b)
and adding new paragraph (h) to read as follows:
Sec. 1.47 Service of documents and proof of service.
* * * * *
(b) Where any person is required to serve any document filed with
the Commission, service shall be made by that person or by his
representative on or before the day on which the document is filed.
* * * * *
(h) Every carrier subject to the Communications Act of 1934, as
amended, shall designate an agent in the District of Columbia, upon
whom service of all notices, process, orders, decisions, and
requirements of the Commission may be made for and on behalf of said
carrier in any proceeding pending before the Commission. Such
designation shall be filed, and updated as necessary, in writing and
electronically in the office of the secretary of the Commission.
Service of all notices, process, orders, decisions, and requirements of
the Commission may be made upon such carrier by leaving a copy thereof
with such designated agent at his office or usual place of residence in
the District of Columbia. If a carrier fails to designate such an
agent, service of any notice or other process in any proceeding before
the Commission, or of any order, decision, or requirement of the
Commission, may be made by posting such notice, process, order,
requirement, or decision in the office of the secretary of the
Commission.
5. Section 1.720 is proposed to be amended by revising the
introductory paragraph and paragraph (h) to read as follows:
Sec. 1.720 General pleading requirements.
Formal complaint proceedings are generally resolved on a written
record consisting of a complaint, answer, and statement of stipulated
facts, but may also include other written submissions such as briefs
and responses to written interrogatories. The Bureau in its discretion
may designate formal complaint proceedings for resolution by hearing
before an Administrative Law Judge, or where appropriate, it may refer
certain issues of fact to an Administrative Law Judge for expedited
hearing, while responsibility for the overall resolution of the
proceeding is retained by the responsible Bureau. All written
submissions, both substantively and procedurally, must conform to the
following standards:
* * * * *
(h) Specific reference must be made to any tariff provision relied
on in support of a claim or defense. Copies of relevant tariffs or
relevant portions of tariffs that are relied upon in a pleading shall
be appended to the pleading.
* * * * *
6. Section 1.721 is proposed to be amended by revising paragraphs
(a)(5), (a)(6), (a)(7), (a)(8), adding paragraphs (a)(9), (a)(10),
(a)(11), (a)(12), and adding paragraph (c) to read as follows:
Sec. 1.721 Format and content.
(a) * * *
(5) A complete statement of facts which, if proven true, would
constitute such a violation. All facts must be supported, pursuant to
Sec. 1.720(c), by relevant affidavits and documentation, including
copies of all applicable agreements, offers, counter-offers, denials,
or other relevant correspondence.
(6) Complete detailed explanation of the manner in which a
defendant has violated the Act, Commission order, or Commission rule in
question, including identification or description and relevant time
period, of the communications, transmissions, services, or other
carrier conduct
[[Page 67987]]
complained of and nature of the injury sustained;
(7) The relief sought, including recovery of damages and the amount
of damages claimed, if known;
(8) Certification that each complainant has discussed the
possibility of settlement with each defendant prior to the filing of
the formal complaint;
(9) Whether suit has been filed in any court or other government
agency on the basis of the same cause of action, or whether the
complaint itself seeks prospective relief identical to the relief
proposed or at issue in a notice-and-comment proceeding that is
concurrently before the Commission;
(10) A copy of, or a description by category and location of all
documents, data compilations and tangible things in the complainant's
possession, custody or control that are relevant to the disputed facts
alleged with particularity in the complaint. The complaint may also
include an explanation of why any relevant documents are believed to be
confidential.
(11) The name, address and telephone number of each individual
likely to have discoverable information relevant to the disputed facts
alleged with particularity in the complaint, identifying the subjects
of information; and
(12) A completed Formal Complaint Intake Form.
* * * * *
(c) Upon showing of good cause by the complainant, the Commission
may waive any of the requirements of this section.
Section 1.722 is proposed to be amended by revising the
introductory text of paragraph (b) and adding paragraphs (c) and (d) to
read as follows:
Sec. 1.722 Damages.
* * * * *
(b) Damages will not be awarded upon a complaint unless
specifically requested. Damages may be awarded, however, upon a
supplemental complaint as described more fully in paragraph (c) of this
section, based upon a finding of the Commission in the original
proceeding. Provided that:
* * * * *
(c) In all cases in which recovery of damages is sought, it shall
be the responsibility of the complainant to provide a computation of
each and every category of damages for which recovery is sought, along
with an identification of all relevant documents and materials or such
other evidence to be used by the complainant to determine the amount of
such damages.
(1) Where the recovery of damages is sought on the original
complaint, such original complaint must include the computation of
damages and identification of documents, materials and other evidence
to be used in such computation described in paragraph (c) of this
section.
(2) A complainant electing to seek damages upon a supplemental
complaint as provided in paragraph (b) of this section must clearly and
unequivocally state such election in the original complaint. In cases
in which a complainant clearly and unequivocally states its election to
seek damages upon supplemental complaint, the computation and
identification of all relevant documents, materials and other evidence
described in paragraph (c) of this section need not be provided until
such time the complainant files its supplemental complaint.
(3) Where a complainant voluntarily elects to seek the recovery of
damages upon a supplemental complaint, the Commission will resolve the
liability complaint within the relevant complaint resolution deadlines
contained in the Act and defer adjudication of the damage complaint
until after the liability complaint has been resolved.
(d) Where a complainant elects in its original complaint to seek
the recovery of damages upon a supplemental complaint, the following
procedures may apply in the event the Commission determines liability
based upon its review of the original complaint:
(1) If the parties agree, issues concerning the amount, if any, of
damages may be submitted for mediation to a Commission Administrative
Law Judge. Such Administrative Law Judge shall be chosen in the
following manner:
(i) By agreement of the parties and the Chief Administrative Law
Judge; or
(ii) In the absence of such agreement, the Chief Administrative Law
Judge shall designate the Administrative Law Judge.
(2) After the defendant has been determined to be liable in such
bifurcated proceeding, the Commission may order the defendant to
deposit into an interest bearing escrow account a sum equal to the
amount of damages which it finds, upon preliminary investigation, is
likely to be ordered after the issue of damages is fully litigated, or
some lesser sum which may be appropriate, provided the Commission finds
that the grant of this relief is favored on balance upon consideration
of the following factors:
(i) Complainant's potential irreparable injury in the absence of
such deposit;
(ii) The likelihood that the amount of damages ordered at the
conclusion of litigation will be equal to or greater than the amount
deposited;
(iii) The balance of the hardships between complainant and
defendant; and
(iv) Whether public interest considerations favor the ordering of
the deposit.
8. Section 1.724 is proposed to be amended by revising paragraphs
(a), (b), and (c) and adding new paragraphs (f), (g) and (h) to read as
follows:
Sec. 1.724 Answers.
(a) Any carrier upon which a copy of a formal complaint is served
under this subpart shall answer within 20 days of service of the formal
complaint, unless otherwise directed by the Commission.
(b) The answer shall advise the complainant and the Commission
fully and completely of the nature of any defense, and shall respond
specifically to all material allegations of the complaint. Every effort
should be made to narrow the issues in the answer. Any defendant
failing to file and serve an answer within the time and in the manner
prescribed by this part may be deemed in default and an order may be
entered against the defendant in accordance with the allegations
contained in the complaint.
(c) The defendant shall state concisely its defenses to each claim
asserted and shall admit or deny the averments on which the complainant
relies. If the defendant is without knowledge or information sufficient
to form a belief as to the truth of an averment, the defendant shall so
state and this has the effect of a denial. When a defendant intends in
good faith to deny only part of an averment, the defendant shall
specify so much of it as is true and shall deny only the remainder. The
defendant may make its denials as specific denials of designated
averments or paragraphs. General denials are prohibited.
* * * * *
(f) The answer shall include a copy of, or a description by
category and location of all documents, data compilations and tangible
things in the defendant's possession, custody or control that are
relevant to the disputed facts alleged with particularity in the
pleadings. The answer may also include an explanation of why any
relevant documents are believed to be confidential.
(g) The answer shall also list the name, address and telephone
number of each individual likely to have discoverable information
relevant to the disputed facts alleged with particularity
[[Page 67988]]
in the pleadings, identifying the subjects of information.
(h) Upon showing of good cause by the defendant, the Commission may
waive any of the requirements of this section.
9. Section 1.725 is proposed to be revised to read as follows:
Sec. 1.725 Cross-complaints and counterclaims.
(a) Compulsory counterclaims, those claims arising out of the
transaction or occurrence that is the subject matter of the complaint
and does not require for its adjudication the presence of third parties
of whom the court cannot acquire jurisdiction, must be filed
concurrently with the answer or it will be barred.
(b) Permissive counterclaims, those claims not arising out of the
transaction or occurrence that is the subject matter of the complaint,
must be filed concurrently with the answer in order to be resolved in
the same proceeding. If not filed concurrently with the answer,
however, the defendant will not be barred from filing such claim in a
separate proceeding, provided that the statute of limitations has not
run.
(c) Cross-complaints, claims by one party against a co-party
arising out of the same transaction or occurrence that is the subject
matter of either the complaint or counterclaim therein or relating to
any property that is the subject matter of the original matter, must be
filed concurrently with the answer in order to be resolved in the same
proceeding. If not filed concurrently with the answer, however, the co-
party will not be barred from filing such claim in a separate
proceeding, provided the statute of limitations has not run.
10. Section 1.726 is proposed to be revised to read as follows:
Sec. 1.726 Replies.
(a) Replies are prohibited unless authorized by the Commission for
good cause shown. If no reply is submitted, the complainant will be
deemed to have denied the affirmative defenses.
(b) A complainant wishing to submit a reply must, within five days
after the service of the answer, file a motion seeking leave to do so.
A copy of the complainant's proposed reply should accompany its motion.
A complainant's reply shall respond only to the specific factual
allegations made by the defendant supporting its affirmative defenses.
Replies which contain other allegations or arguments will not be
accepted or considered by the Commission.
(c) Replies shall be accompanied by a copy of, or a description by
category and location of all documents, data compilations and tangible
things in the complainant's possession, custody or control that are
relevant to the disputed facts alleged with particularity in the
pleadings. The reply may also include an explanation of why any
relevant documents are believed to be confidential. Replies shall also
include the name, address and 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.
11. Section 1.727 is proposed to be amended by revising paragraphs
(b), (c), (d), and (e) and adding new paragraphs (g) and (h) to read as
follows:
Sec. 1. 727 Motions.
* * * * *
(b) Motions that the allegations in the complaint be made more
definite and certain are prohibited.
(c) The moving party shall provide a proposed order for adoption,
which appropriately incorporates the basis therefor, including proposed
findings of fact and conclusions of law relevant to the pleading. The
proposed order shall be clearly marked as a ``proposed order.'' The
proposed order shall be submitted both as a hard copy and on computer
disk in accordance with the requirements of Sec. 1.734(d). The proposed
order format should conform to that of a reported FCC order.
(d) A party opposing any motion shall also provide a proposed order
for adoption, which appropriately incorporates the basis therefor. The
proposed order shall be clearly captioned as a ``Proposed Order.'' The
proposed order shall be submitted both as a hard copy and on computer
disk in accordance with the requirements of Sec. 1.734(d). The proposed
order format should conform to that of a reported FCC order.
(e) Oppositions to motions may be filed within five days after the
motion is filed. Oppositions shall be limited to the specific issues
and allegations contained in the motion; when a motion is incorporated
in an answer to a complaint, an opposition to the motion shall not
address any issues presented in the answer that are not also
specifically raised in the motion. Failure to oppose any motion may
constitute grounds for granting of the motion.
* * * * *
(g) All motions must contain proposed findings of fact and
conclusions of law, with supporting legal analysis, relevant to the
content of the pleading. All facts relied upon in motions must be
supported by documentation or affidavits pursuant to Sec. 1.720(c),
except for those facts of which official notice may be taken.
Assertions based on information and belief are prohibited.
(h) Amendments or supplements to complaints to add new claims or
requests for relief are prohibited. Parties are responsible, however,
for the continuing accuracy and completeness of all information and
supporting authority furnished in a pending complaint proceeding as
required under Sec. 1.720(g).
Sec. 1.730 [Removed]
12. Section 1.730 is proposed to be removed.
13. Section 1.731 is proposed to be amended by revising the section
heading and paragraph (a) to read as follows:
Sec. 1.731 Confidentiality of information produced or exchanged by
the parties.
(a) Any materials generated in the course of a formal complaint
proceeding may be designated as proprietary by that party if the party
believes in good faith that the materials fall within an exemption to
disclosure contained in the Freedom of Information Act (FOIA), 5 U.S.C.
552(b) (1) through (9). Any party asserting confidentiality for such
materials shall so indicate by clearly marking each page, or portion
thereof, for which a proprietary designation is claimed. If a
proprietary designation is challenged, the party claiming
confidentiality shall have the burden of demonstrating, by a
preponderance of the evidence, that the material designated as
proprietary falls under the standards for nondisclosure enunciated in
the FOIA.
* * * * *
Section 1.732 is proposed to be amended by revising paragraphs (b),
(c), and (d) and adding new paragraph (h) to read as follows:
Sec. 1.732 Other required written submissions.
* * * * *
(b) In cases when discovery is not conducted, briefs shall be filed
concurrently by both complainant and defendant within 90 days from the
date a complaint is served. Such briefs shall be no longer than 25
pages.
(c) In cases when discovery is conducted, briefs shall be filed
concurrently by both complainant and defendant at such time designated
by the staff, typically within 30 days after discovery is completed.
(d) Reply briefs may be submitted by either party within 20 days
from the
[[Page 67989]]
date initial briefs are due. Reply briefs shall be no longer than 10
pages.
* * * * *
(h) Within 5 days after the answer is filed, the parties shall
submit a joint statement of stipulated facts and key legal issues.
15. Section 1.733 is proposed to be amended by revising paragraphs
(a) introductory text, (a)(2), (a)(4), (a)(5), (a)(6), (b), and (c) to
read as follows:
Sec. 1.733 Status conference.
(a) In any complaint proceeding, the Commission may, in its
discretion, direct the attorneys and/or the parties to appear before it
for a status conference. Unless otherwise ordered by the Commission, an
initial status conference shall take place within ten business days
after the answer is filed, unless otherwise directed by the staff. A
status conference may include discussion of:
* * * * *
(2) The necessity for or desirability of additional pleadings or
evidentiary submissions;
* * * * *
(4) Settlement of all or some of the matters in controversy by
agreement of the parties;
(5) Whether discovery is necessary and, if so, the scope, type and
schedule for any discovery;
(6) The schedule for the remainder of the case and the date for
further conferences; and
* * * * *
(b) In addition to the status conference referenced in paragraph
(a) of this section, any party may also request that a conference be
held at any time after the complaint has been filed.
(c) During a status conference, the Commission may issue oral
rulings pertaining to a variety of interlocutory matters relevant to
the conduct of a formal complaint proceeding including, inter alia,
procedural matters, discovery, and the submission of briefs or other
evidentiary materials. Within 24 hours after a status conference, the
parties in attendance, unless otherwise directed, must submit a joint
proposed order memorializing the oral rulings made during the
conference to the Commission. Commission staff will review and make
revisions, if necessary, prior to signing and filing the submission as
part of the record. Parties may, but are not required to, tape record
the Commission's summary of its oral rulings. Alternatively, parties
may use a stenographer to transcribe the oral presentations and
exchanges between and among the participating parties, insofar as such
communications are not ``off-the-record.'' The cost of such
stenographer will be shared equally by the parties.
* * * * *
16. Section 1.734 is proposed to be amended by revising paragraph
(c) and adding new paragraph (d) to read as follows:
Sec. 1.734 Specifications as to pleadings, briefs, and other
documents; subscription.
* * * * *
(c) The original of all pleadings and other submissions filed by
any party shall be signed by that party, or by the party's attorney.
The signing party shall state his or her address, telephone number,
facsimile number and the date on which the document was signed. Copies
should be conformed to the original. Except when otherwise specifically
provided by rule or statute, pleadings need not be verified. The
signature of an attorney or party shall be a certificate that the
attorney or party has read the pleading, motion, or other paper; that
to the best of his or her knowledge, information, and belief formed
after reasonable inquiry, it is well grounded in fact and is warranted
by existing law or a good faith argument for the extension,
modification, or reversal of existing law; and that it is not
interposed solely for purposes of delay or for any other improper
purpose.
(d) All proposed orders shall be submitted both as hard copies and
on a 3.5 inch diskette formatted in an IBM compatible form using MS-DOS
5.0 and WordPerfect 5.1 software. The diskette should be submitted in
``read only'' mode. The diskette should be clearly labelled with the
party's name, proceeding, type of pleading, and date of submission. The
diskette should be accompanied by a cover letter. Parties who have
submitted copies of tariffs or reports with their hard copies need not
include such tariffs or reports on the magnetic disk.
17. Section 1.735 is proposed to be amended by revising paragraphs
(b), (d) and (e) to read as follows:
Sec. 1.735 Copies; service; separate filings against multiple
defendants.
* * * * *
(b) The complainant must file an original plus three copies of the
complaint, accompanied by the correct fee, in accordance with subpart G
of this part. See 47 CFR 1.1105(1)(c). However, if a complaint is
addressed against multiple defendants, the complainant shall pay a
separate fee and supply three additional copies of the complaint for
each additional defendant. For complaints filed with the Common Carrier
Bureau, the complainant must also serve a copy on the Chief, Formal
Complaints and Investigations Branch. For complaints filed with the
Wireless Telecommunications Bureau, the complainant must also serve a
copy on the Chief, Enforcement Division. For complaints filed with the
International Bureau, the complainant must also serve a copy on the
Chief, Telecommunications Division. The requirements of this paragraph
also apply to defendants filing cross-complaints.
* * * * *
(d) The complainant shall serve the complaint on the named
defendant's registered agent for service of process. If filing a cross-
complaint, the defendant/cross-complainant shall serve such cross-
complaint on the named cross-defendant's registered agent for service
of process and all counsel of record in the complaint proceeding.
(e) All subsequent pleadings and briefs filed in any formal
complaint proceeding, as well as all letters, documents or other
written submissions, shall be served either by overnight delivery or by
facsimile and followed by mail, by the filing party on the counsel of
record of all other parties to the proceeding, together with a proof of
such service in accordance with the requirements of Sec. 1.47(g).
* * * * *
18. Section 1.1105 is proposed to be amended by revising the entry
(1)(c), and adding (1)(d) to read as follows:
Sec. 1.1105 Schedule of charges for applications and other filings in
the common carrier services.
Payment
Action FCC form No. Fee amount type code Address
1. * * *
c. Formal Complaints/Cross-Complaints and Corr. and 159 150 ........... CIZ Federal Communication Commission, Common Carrier Enforcement,
Pole Attachment Compaints/Cross- P.O. Box 358120, Pittsburgh, PA 15251-5120.
Complaints, except those relating to
wireless telecommunications services,
Filing Fee..
[[Page 67990]]
d. Formal Complaints/Cross-Complaints Corr. and 159 150 CIZ Federal Communications Commission, Wireless Telecommunications
relating to wireless telecommunications Bureau, P.O.Box 358128, Pittsburgh, PA 15251-5120.
services, including cellualr telephone,
paging, personal communications
services, and other commercial mobile
radio services, Filing Fee..
* * * * * *
Attachment to the Proposed Rule
FORMAL COMPLAINT INTAKE FORM
Case Name:-------------------------------------------------------------
Complainant Name, Address, Phone and Facsimile Number:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Complaint alleges violation of the following provisions of the
Communications Act of 1934, as amended:--------------------------------
Answer (Y)es, (N)o or N/A to the following:
____ Complaint conforms to the specifications prescribed by 47 CFR
Secs. 1.49, 1.734.
____ Complaint complies with the pleading requirements of 47 CFR
Sec. 1.720.
____ Complaint conforms to the format and content requirements of 47
CFR Sec. 1.721:
____ Complaint contains a detailed explanation of the manner in
which the defendant violated the provisions of the Communications
Act of 1934, as amended.
____ Relevant documentation and/or affidavits is attached,
including agreements, offers, counter-offers, denials, or other
relevant correspondence.
____ Contains certification that complainant has discussed the
possibility of settlement with each defendant prior to the filing of
the formal complaint.
____ Suit has been filed in another court or government agency
on the basis of the same cause of action. If yes, please explain:
________
____ Seeks prospective relief identical to the relief proposed
or at issue in a notice-and-comment proceeding that is concurrently
before the Commission. If yes, please explain: ____________
____ If damages are sought, contains specified amount and nature
of damages claimed.
____ Contains a copy of, or a description by category and
location of all documents, data compilations and tangible things in
the complainant's possession, custody or control that are relevant
to the disputed facts alleged with particularity in the complaint.
____ Contains the name, address and telephone number of each
individual likely to have discoverable information relevant to the
disputed facts alleged with particularity in the complaint,
identifying the subjects of information.
____ All reported FCC orders relied upon have been properly cited in
accordance with Section 1.14 of the Commission's Rules, Title 47
Code of Federal Regulations, 47 CFR Sec. 1.14.
____ Copies of cited non-FCC authority are attached.
____ Copy of complaint has been served on defendant's registered
agent for service in accordance with [to be amended] 47 CFR
Sec. 1.47(b).
____ If more than 10 pages, the complaint contains a table of
contents as specified in 47 CFR Sec. 1.49(b).
____ The correct number of copies, required by 47 CFR
Sec. 1.51(c)(2) and 47 CFR Sec. 1.51(c)(2) if applicable, have been
filed.
____ Complaint has been properly signed and verified in accordance
with 47 CFR Sec. 1.52.
____ $150.00 filing fee specified in 47 CFR Sec. 1.1105(1)(c) is
attached.
____ If complaint is by multiple complainants, it conforms with the
requirements of 47 CFR Sec. 1.723(a).
____ If complaint involves multiple grounds, it complies with the
requirements of 47 CFR Sec. 1.723(b).
____ If complaint is directed against multiple defendants, it
complies with the requirements of 47 CFR Sec. 1.735 (a)-(b).
[FR Doc. 96-32322 Filed 12-24-96; 8:45 am]
BILLING CODE 6712-01-P
