01-2760. Procedures for Arbitrations Conducted in Accordance With the Communications Act of 1934

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

The Commission amends on its own motion a section of the rules in which FCC arbitrators are granted additional discretion when arbitrating interconnection disputes.

DATES:

Effective February 1, 2001.

FOR FURTHER INFORMATION CONTACT:

William Kehoe, Special Counsel, Common Carrier Bureau, Policy and Program Planning Division, [phone].

SUPPLEMENTARY INFORMATION:

This is a summary of the amendment to 47 CFR 51.807 in the Commission's Order, FCC 01-21, adopted January 17, 2001 and released January 19, 2001. The complete text of this Order is available for inspection and copying during regular business hours in the FCC Reference information Center, Courtyard Level, 445 12th Street, SW., Washington, DC, and also may be purchased from the Commission's copy contractor, International Transcription Services (ITS, Inc.), CY-B400, 445 12th Street, SW., Washington, DC.

Synopsis of the Amendment to Section 51.807

1. The Commission adopted an interim rule in the Local Competition Order establishing a scheme of “final offer” arbitration for section 252(e)(5) proceedings. This rule provides that, in issuing an arbitration award, the arbitrator “shall use final offer arbitration,” which may take the form of either entire package final offer arbitration or issue-by issue final offer arbitration.” 47 CFR 51.807(d)(1). If the parties' offers do not meet the standards of section 251, the arbitrator may require the parties to submit additional final offers or may adopt a result offered by neither party. 47 CFR 51.807(f)(3) (1999).

2. Experience gained by states in arbitrating numerous interconnection disputes over the past five years suggest that “final offer” arbitration may not always afford the arbitrator sufficient flexibility to resolve complex interconnection issues. Accordingly, the Commission amends § 51.807(f)(3) to provide the arbitrator additional flexibility in certain circumstances. The arbitrator shall have discretion to require the parties to submit new final offers, or adopt a result not submitted by any party, in circumstances where a final offer submitted by one or more of the parties fails to comply with the Act or the Commission's rules. There may be some unique circumstances where, even though the parties submit a final offer that complies with the Act and the Commission's rules, the arbitrator will have a basis for concluding that another result is more consistent with the requirements of section 252(c) of the Act, and the Commission's rules, although we do not identify those circumstances here.

3. Because this rule is a rule of agency procedure and practice, it may be adopted without affording prior notice and opportunity for comment. See 5 U.S.C. 553(b)(3)(A). In addition, we find good cause to make this change effective upon publication in the Federal Register. See 5 U.S.C. 553(d)(3). In an order released contemporaneously herewith, the Commission has preempted the jurisdiction of the Commonwealth of Virginia State Corporation Commission and therefore may soon need to begin the process of arbitrating complex interconnection agreement issues among carriers in Virginia. This rule change is necessary to facilitate the efficient and expeditious discharge of the Commission's statutory responsibility in the Virginia arbitration proceeding pursuant to section 252 of the Communications Act.

Paperwork Reduction Act

4. The action contained herein has been analyzed with respect to the Paperwork Reduction Act of 1995 and found to impose new or modified reporting and recordkeeping requirements or burdens on the public.

Regulatory Flexibility Analysis

5. The action contained herein relates to agency procedure and practice and does not change the Commission's Regulatory Flexibility Analysis in connection with the amended rule.

Ordering Clauses

4. This Order is effective February 1, 2001.

5. Pursuant to sections 4(i ), 4(j), 201(b), 303(r), 251, and 252 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 201(b), 303(r), 251, and 252, that the amendment to § 51.807 is adopted as set forth in the appendix to this Order, to be effective February 1, 2001.

List of Subjects in 47 CFR Part 51

• Communications common carriers
• Telecommunications
• Telephone
• Arbitration

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

For the reasons set forth in the preamble, amend Part 51 of 47 CFR as follows:

1. The authority citation for part 51 continues to read:

Authority: 47 U.S.C. 154(i), 154(j), 201(b), 303 (r), 251, and 252.

2. Revise § 51.807, paragraph (f)(3) to read as follows:

§ 51.807

Arbitration and mediation of agreements by the Commission pursuant to section 252(e)(5) of the Act.

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(f) * * *

(3) Provide a schedule for implementation of the terms and conditions by the parties to the agreement. If a final offer submitted by one or more parties fails to comply with the requirements of this section or if the arbitrator determines in unique circumstances that another result would better implement the Communications Act, the arbitrator has discretion to take steps designed to result in an arbitrated agreement that satisfies the requirements of section 252(c) of the Act, including requiring parties to submit new final offers within a time frame specified by the arbitrator, or adopting a result not submitted by any party that is consistent with the requirements of section 252(c) of the Act, and the rules prescribed by the Commission pursuant to that section.

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