[Federal Register Volume 62, Number 243 (Thursday, December 18, 1997)]
[Proposed Rules]
[Pages 66321-66323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33183]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[CC Docket No. 96-238; DA 97-2178]


Accelerated Docket Procedures for Formal Complaints Filed Against 
Common Carriers

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: On November 25, 1997, the Commission adopted its Report and 
Order in this docket promulgating new, streamlined rules for handling 
formal complaints filed with the Commission (the ``Complaint R&O''). In 
the Complaint R&O, the Commission encouraged its staff to explore and 
use alternative approaches to complaint adjudication designed to ensure 
the prompt discovery of relevant information and the full and fair 
resolution of disputes in the most expeditious manner possible. By this 
Public Notice, additional comment is sought on issues relating to the 
possible alternative forms of complaint adjudication that, 
complementing the rules recently announced in the Complaint R&O, 
ultimately should redound to the benefit of telecommunications 
consumers by enhancing competition in the relevant markets. 
Specifically, comment is invited regarding the feasibility of creating 
an ``Accelerated Docket'' that would provide for a 60-day complaint 
adjudication process.

DATES: Written comments are due on or before January 12, 1998.

ADDRESSES: Comments should be sent to the Office of Secretary, Federal 
Communications Commission, 1919 M Street, N.W., suite 222, Washington, 
D.C. 20554. In addition, parties are asked to submit two copies each of 
their comments directly to: (1) The Enforcement Task Force, Office of 
General Counsel, Federal Communications Commission, Room 650-L, 1919 M 
Street, N.W., Washington, D.C. 20554 and (2) Enforcement Division, 
Common Carrier Bureau, Federal Communications Commission, Room 6120, 
2025 M Street, N.W., Washington, D.C. 20554. Parties should also file 
one copy of any documents filed in response to this notice with the 
Commission's copy contractor, International Transcription Services, 
Inc., 1231 20th Street, N.W., Washington, D.C. 20036.

FOR FURTHER INFORMATION CONTACT:
Jeffrey H. Dygert, Common Carrier Bureau, Enforcement Division, (202) 
418-0960, or Glenn T. Reynolds, Common Carrier Bureau, (202) 418-1500.

SUPPLEMENTARY INFORMATION: This is a summary of the Common Carrier 
Bureau's Public Notice in CC Docket No. 96-238, adopted on December 12, 
1997 and released December 12, 1997. The full text of the Public Notice 
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. 20554. The complete text of the Public Notice may also be 
purchased from the Commission's duplicating contractor, International 
Transcription Services, 1231 20th Street, N.W., Washington, D.C. 20036 
(202) 857-3800.

Summary of the Public Notice

    1. On November 25, 1997, the Commission adopted its Report and 
Order in this docket promulgating new, streamlined rules for handling 
formal complaints filed with the Commission (the ``Complaint R&O'').\1\ 
By this Public Notice, the Competition Enforcement Task Force (the 
``Task Force'') and the Common Carrier Bureau (the ``Bureau'') seek 
additional comment on issues relating to the possible alternative, 
accelerated forms of complaint adjudication that would supplement or 
provide an alternative to the procedures set out in the Complaint R&O.
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    \1\ See Amendment of Rules Governing Procedures To Be Followed 
When Formal Complaints Are Filed Against Common Carriers, Report & 
Order, CC Docket No. 96-238, FCC 97-396 (rel. Nov. 25, 1997) (the 
``Complaint R&O'').
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    2. Specifically, the Task Force and the Bureau currently are 
evaluating whether the needs of some industry participants better could 
be met by an ``Accelerated Docket'' for complaint adjudication that 
would (1) provide for the presentation of live evidence and argument in 
a hearing-type proceeding and (2) operate on a 60-day time frame, or on 
some other schedule that is more compressed than that applicable more 
generally to complaint proceedings under the new procedures set out in 
the Complaint R&O.
    3. The Accelerated Docket would serve as a hearing-style 
alternative to the normal process for resolution of formal complaints, 
administered by the Bureau's Enforcement Division, which relies 
primarily on the parties' presentation of arguments on paper. To the 
extent possible, Accelerated Docket proceedings would be governed by 
the requirements announced in the Complaint R&O. In accordance with the 
Commission's authority under sections 1, 4, 201-205, 208, 215, 218 and 
220 of

[[Page 66322]]

the Communications Act, interested parties are invited to submit 
comments and recommendations as to how such a hearing-based process 
could be designed to ensure speedy, consistent and fair adjudication of 
complaints. Specifically, commenters should address the extent to which 
the rules set forth in the Complaint R&O could be applied to the 
Accelerated Docket. Additionally, where appropriate, comments should 
identify specialized procedures or requirements that may be necessary 
in the context of the alternative, hearing-style process under 
consideration. Commenters should restrict themselves to addressing the 
feasibility of using the below-discussed rules and requirements 
promulgated in the Complaint R&O and the extent to which different 
requirements may be necessary for the alternative docket. Comments 
should not attempt to revisit issues previously decided in this 
proceeding.
    4. With reference to the Accelerated Docket discussed above, 
comment is invited on the following issues:
    (i) Need for Accelerated Docket. Commenters are invited generally 
to discuss factors that may support the creation of a hearing-type, 
accelerated complaint process like that discussed herein. Thus, 
commenters should provide information about specific events, general 
industry trends or particular categories of disputes that might benefit 
from treatment under the Accelerated Docket. Additionally, comment is 
sought on whether the Accelerated Docket initially should be limited to 
issues of competition in the provision of telecommunications services. 
In particular, comments should offer suggestions and recommendations as 
to how the Commission can work cooperatively with state utility 
commissions on such enforcement matters to ensure that the respective 
interests of the Commission and the states are protected.
    (ii) Minitrials. The Bureau and the Task Force are considering 
whether the requirements of speed and fairness would be served by 
conducting minitrials of complaints accepted onto the Accelerated 
Docket. Such a hearing-type proceeding would permit the parties to 
present evidence and argument to the fact-finder and would likely 
permit closer inquiry into factual issues and more effective 
credibility determinations than are possible on a paper record. As 
currently envisioned, these minitrials would cover a broader range of 
issues than those hearings likely to arise from the Bureau's newly 
expanded authority to designate issues for hearing before an ALJ. As 
with other complaints brought under Sections 206 through 209 of the 
Communications Act, these minitrials would not be subject to the on-
the-record hearing requirements of the Administrative Procedure Act. 
See Amendment of Rules Governing Procedures To Be Followed When Formal 
Complaints Are Filed Against Common Carriers. Report and Order, CC Dkt 
No. 92-26, 58 FR 25569 (April 27, 1993). Under the 60-day process 
currently under consideration, such a hearing would need to be 
conducted no later than 45 days after the filing of the complaint. 
During the hearing, each side would be permitted to present evidence in 
support of their respective positions. Given the need for dispatch, one 
approach under consideration is to allot each side an equal amount of 
time within which to present its case and to cross-examine its 
opponent's witnesses. Comment is sought as to the feasibility and 
desirability of adjudicating complaints using this or a similar 
process.
    (iii) Discovery. One of the key elements to streamlining the 
enforcement process is to maximize staff control over the discovery 
process. For the Accelerated Docket to be successful, discovery must be 
as targeted and focused as possible. As the Accelerated Docket is 
currently envisioned, its proceedings would be governed by the recently 
announced discovery rules unless otherwise noted. In this regard, 
comment is invited on how best to conduct discovery in connection with 
the 60-day complaint process currently under contemplation. Given the 
compressed time frame for Accelerated Docket proceedings, commenters 
should address whether parties should submit all discovery requests and 
disputes to the Task Force in advance of the initial status conference 
so that the Task Force may issue its decision on these issues at that 
conference. Should the parties exchange all documents relevant to the 
issues raised in the complaint and answer either when they file their 
initial pleadings, or at some other point before the initial status 
conference discussed below? If not all relevant documents, should the 
parties be required to exchange all documents that bear some closer 
relationship to the claims and defenses in the proceeding? Finally, 
given the short time frame available for discovery, what sanctions 
would be appropriate when a party fails to provide discovery as ordered 
by the Task Force, including the production of witnesses for 
depositions?
    (iv) Pre-filing Procedures. Under the recently announced rules, a 
complaint must certify that it has discussed, or attempted to discuss, 
the possibility of a good faith settlement with the defendant carrier's 
representative(s) before filing the complaint. Comment is sought on 
whether a complainant seeking acceptance onto the Accelerated Docket 
should, as a precondition of such acceptance, have attempted to 
undertake informal settlement discussions under the auspices of the 
Task Force. Should adequate advance notice to the prospective defendant 
of the issues to be covered in these informal settlement discussions be 
one of the criteria considered in determining acceptance onto the 
Accelerated Docket? What other criteria should be applied by the Task 
Force and the Bureau in determining what complaints should be accepted 
onto the Accelerated Docket? To what extent, if any, would the 
Commission's ex parte rules be implicated by the Task Force's 
involvement in such pre-filing discussions between prospective parties 
to a potential complainant proceeding? If a complaint does not request 
expedited treatment, might an action be included on the Accelerated 
Docket at the defendant's request? Comment is also sought on whether, 
or in what circumstances, previously filed complaints should be 
designated for inclusion on the Accelerated Docket. What steps would be 
necessary to provide adequate protection to the confidential or 
propriety information of the parties engaged in such informal, pre-
filing discussions?
    (v) Pleading Requirements. The Commission's recently announced 
pleading requirements require greater diligence by complainants and 
defendants in presenting and defending against claims of misconduct. 
Pleadings submitted in Accelerated Docket proceedings would be required 
to meet these same standards. In light of these recently heightened 
requirements for pleading content, comment is invited on the 
reasonableness of requiring the answer to be filed within seven 
calendar days of a complaint, as likely would be necessary in the 60-
day complaint process currently under contemplation.
    (iv) Status Conferences. Under a hearing-type, 60-day process, an 
initial status conference would seem necessary no later than 15 
calendar days after the filing of the complaint. Comment is sought as 
to the feasibility of holding a status conference at that time. The 
Bureau and the Task Force contemplate that the initial status 
conference for Accelerated Docket proceedings would proceed under the 
newly announced rules in the Complaint R&O. Thus, before the status 
conference, the parties would meet and confer about the following 
issues: (1) Settlement

[[Page 66323]]

prospects, (2) discovery, (3) issues in dispute, (4) a schedule for the 
remainder of the proceeding. The parties would be required to reduce to 
a joint, written statement their agreements and remaining disputes 
regarding these matters, and submit it to the Commission two days in 
advance of the status conference. The parties also would be required to 
agree to a joint statement of stipulated facts, disputed facts and key 
legal issues, which also would be submitted to the Commission two days 
before the status conference. Comment is invited on imposing these 
requirements for the initial status conference in a 60-day process. 
Additionally, comment is invited on the nature of the briefing 
schedule, if any, that the Task Force should set at the initial status 
conference.
    (vii) Damages. Given the fact that adjudications of damages would 
be extremely difficult to complete within a 60-day time frame, 
commenters should address whether the Accelerated Docket should be 
restricted to bifurcated, liability claims, with damages claims to be 
handled separately under the procedures set out in the Complaint R&O.
    (viii) Other Issues. Commenters are invited to address whether any 
other rules should be specifically tailored to accommodate a 60-day, 
hearing-type adjudication process.
    (ix) Review by the Commission. To satisfy statutory requirements 
for the disposition of certain categories of complaints, it likely 
would be necessary in Accelerated Docket proceedings, for all briefing 
on any petition seeking review of an initial decision by the Task Force 
to be completed between 20 and 30 days of the decision's release. Also 
under consideration is the possibility of en banc oral argument before 
the Commission for Accelerated Docket proceedings in which the 
Commission does not summarily adopt the initial Task Force decision. 
Comment is sought on issues relating to this type of review process for 
initial decisions in the Accelerated Docket.
    5. Comments should be filed on or before January 12, 1998. There 
will be no reply comments. Commenters should organize their comments 
under the numbered paragraph headings set out above. Interested parties 
must file an original and four copies of their comments with the Office 
of the Secretary, Federal Communications Commission, Room 222, 1919 M 
Street, N.W., Washington, D.C. 20554. Additionally, commenters are 
asked to submit two copies each directly to: (1) The Enforcement Task 
Force, Office of General Counsel, Federal Communications Commission, 
Room 650-L, 1919 M Street, N.W., Washington, D.C. 20554 and (2) The 
Enforcement Division, Common Carrier Bureau, Federal Communications 
Commission, Room 6120, 2025 M Street, N.W., Washington, D.C. 20554.
    6. Comments should be clearly labeled with CC Docket No. 96-238. 
Parties also should send comments to the Commission's copy contractor, 
International Transcription Service, 1231 20th Street, N.W., 
Washington, D.C. 20036. Comments will be available for public 
inspection during regular business hours in the FCC Reference Center, 
Room 239, 1919 M Street, N.W., Washington, D.C. 20554.
    7. Parties are also asked to submit comments on diskette. Such 
diskette submissions will be in addition to, and not a substitute for, 
the formal filing requirements set out above. Parties submitting 
diskettes, should submit them to Jeffrey H. Dygert, Common Carrier 
Bureau, Enforcement Division, Room 6120, 2025 M Street, N.W., 
Washington D.C. 20554. Comments on diskette should be submitted in 
``read only'' mode in WordPerfect 5.1 for Windows. The diskette should 
be clearly labelled with the party's name, proceeding and date of 
submission. The diskette should be accompanied by a cover letter.

List of Subjects in 47 CFR Part 1

    Administrative practice and procedure, Communications common 
carriers, Investigations, Penalties.

Federal Communications Commission.
A. Richard Metzger, Jr.,
Chief, Common Carrier Bureau.
[FR Doc. 97-33183 Filed 12-17-97; 8:45 am]
BILLING CODE 6712-01-P