Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Rules and Regulations 44831 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 1, 6, 7, 14, 20, 64, and 68 

[EB Docket No. 17–245; FCC 18–96] 

Formal Complaint Proceedings to the 

Enforcement Bureau 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) considers creating a 

uniform set of procedural rules for 

formal complaint proceedings delegated 

to the Enforcement Bureau and 

currently handled by its Market 

Disputes Resolution Division and 

Telecommunications Consumers 

Division. This document streamlines 

and consolidates the procedural rules 

governing formal complaints filed under 

section 208 of the Communications Act 

of 1934, as amended (Act); pole 

attachment complaints filed under 

section 224 of the Act; and formal 

advanced communications services and 

equipment complaints filed under 

sections 255, 716, and 718 of the Act. 

DATES: Effective October 4, 2018. 

FOR FURTHER INFORMATION CONTACT: 

Michael Engel, Federal Communications 

Commission Enforcement Bureau, 

Market Disputes Resolution Division, at 

(202) 418–7330. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order in EB Docket No. 17–245, 

FCC 18–96 adopted July 12, 2018 and 

released July 18, 2018. The full text of 

this document is available for public 

inspection during regular business 

hours in the FCC Reference Information 

Center, Portals II, 445 12th Street SW, 

Room CY–A257, Washington, DC 20554. 

It also is available on the Commission’s 

website at https://apps.fcc.gov/edocs_

public/. On September 13, 2017, the 

Commission adopted a Notice of 

Proposed Rulemaking (NPRM) 

proposing and seeking comment on 

revisions to formal complaint 

procedures. The NPRM was published 

in the Federal Register on September 

26, 2017 (82 FR 44755). Specifically, the 

NPRM proposed to streamline and 

consolidate the procedural rules 

governing formal complaints filed under 

Section 208 of the Act; pole attachment 

complaints filed under Section 224 of 

the Act; and formal advanced 

communications services and 

equipment complaints filed under 

Sections 255, 716, and 718 of the Act. 

Paperwork Reduction Act 

This document contains new or 

modified information collection 

requirements subject to the Paperwork 

Reduction Act of 1995 (PRA), Public 

Law 104–13. It will be submitted to the 

Office of Management and Budget 

(OMB) for review under section 3507(d) 

of the PRA. OMB, the general public, 

and other Federal agencies will be 

invited to comment on the new or 

modified information collection 

requirements contained in this 

proceeding. In addition, we note that 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

Law 107–198, see 44 U.S.C. 3506(c)(4), 

we previously sought specific comment 

on how the Commission might further 

reduce the information collection 

burden for small business concerns with 

fewer than 25 employees. In this present 

document, we have assessed the effects 

of this rule and find that any burden on 

small businesses will be minimal 

because the rules streamline the formal 

complaint process and reduce burdens 

on all parties. 

Congressional Review Act 

The Commission will send a copy of 

this Report and Order in a report to be 

sent to Congress and the Government 

Accountability Office pursuant to the 

Congressional Review Act, see 5 U.S.C. 

801(a)(1)(A). 

List of Subjects in 47 CFR Parts 1, 6, 7, 

14, 20, 64, and 68 

Common carriers, Communications, 

Telecommunications, Telephone. 

Federal Communications Commission 

Marlene Dortch, 

Secretary. 

Final Rules 

For the reasons discussed in this 

preamble, the Federal Communications 

Commission amends 47 CFR parts 1, 6, 

7, 14, 20, 64, and 68 as follows: 

PART 1—PRACTICE AND 

PROCEDURE 

■ 1. The authority citation for part 1 

continues to read as follows: 

Authority: 47 U.S.C. 151, 154(i), 155, 157, 

160, 201, 225, 227, 303, 309, 332, 1403, 1404, 

1451, 1452, and 1455, unless otherwise 

noted. 

■ 2. Amend § 1.47 by revising paragraph 

(d) to read as follows: 

§ 1.47 Service of documents and proof of 

service. 

* * * * * 

(d) Except in formal complaint 

proceedings against common carriers 

under §§ 1.720 through 1.740 of this 

chapter, documents may be served upon 

a party, his attorney, or other duly 

constituted agent by delivering a copy 

or by mailing a copy to the last known 

address. Documents that are required to 

be served must be served in paper form, 

even if documents are filed in electronic 

form with the Commission, unless the 

party to be served agrees to accept 

service in some other form. 

* * * * * 

■ 3. Amend § 1.49 by revising paragraph 

(f)(1)(i) to read as follows: 

§ 1.49 Specifications as to pleadings and 

documents. 

* * * * * 

(f) * * * 

(1) * * * 

(i) Formal complaint proceedings 

under section 208 of the Act and rules 

in §§ 1.720 through 1.740, and pole 

attachment complaint proceedings 

under section 224 of the Act and rules 

in §§ 1.1401 through 1.1415; 

* * * * * 

■ 4. Revise § 1.717 to read as follows: 

§ 1.717 Procedure. 

The Commission will forward 

informal complaints to the appropriate 

carrier for investigation and may set a 

due date for the carrier to provide a 

written response to the informal 

complaint to the Commission, with a 

copy to the complainant. The response 

will advise the Commission of the 

carrier’s satisfaction of the complaint or 

of its refusal or inability to do so. Where 

there are clear indications from the 

carrier’s response or from other 

communications with the parties that 

the complaint has been satisfied, the 

Commission may, in its discretion, 

consider a complaint proceeding to be 

closed. In all other cases, the 

Commission will notify the complainant 

that if the complainant is not satisfied 

by the carrier’s response, or if the carrier 

has failed to submit a response by the 

due date, the complainant may file a 

formal complaint in accordance with 

§ 1.721. 

■ 5. Revise § 1.718 to read as follows: 

§ 1.718 Unsatisfied informal complaints; 

formal complaints relating back to the filing 

dates of informal complaints. 

When an informal complaint has not 

been satisfied pursuant to § 1.717, the 

complainant may file a formal 

complaint with this Commission in the 

form specified in § 1.721. Such filing 

will be deemed to relate back to the 

filing date of the informal complaint: 

Provided, That the formal complaint: Is 

filed within 6 months from the date of 

the carrier’s response, or if no response 


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44832 Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Rules and Regulations 

has been filed, within 6 months of the 

due date for the response; makes 

reference to the date of the informal 

complaint, and is based on the same 

cause of action as the informal 

complaint. If no formal complaint is 

filed within the 6-month period, the 

informal complaint proceeding will be 

closed. 

■ 6. Amend the table of contents of part 

1 by revising the section headings of 

§§ 1.720 through 1.736, and adding 

section headings for §§ 1.737 through 

1.740, to read as follows: 

* * * * * 

Sec. 

1.720 Purpose. 

1.721 General pleading requirements. 

1.722 Format and content of complaints. 

1.723 Damages. 

1.724 Complaints governed by section 

208(b)(1) of the Act. 

1.725 Joinder of complainants and causes 

of action. 

1.726 Answers. 

1.727 Cross-complaints and counterclaims. 

1.728 Replies. 

1.729 Motions. 

1.730 Discovery. 

1.731 Confidentiality of information 

produced or exchanged. 

1.732 Other required written submissions. 

1.733 Status conference. 

1.734 Fee remittance; electronic filing; 

copies; service; separate filings against 

multiple defendants. 

1.735 Conduct of proceedings. 

1.736 Accelerated Docket Proceedings. 

1.737 Mediation. 

1.738 Complaints filed pursuant to 47 

U.S.C. 271(d)(6)(B). 

1.739 Primary jurisdiction referrals. 

1.740 Review period for section 208 formal 

complaints not governed by section 

208(b)(1) of the Act. 

* * * * * 

■ 7. Revise §§ 1.720 through 1.736 to 

read as follows: 

§ 1.720 Purpose. 

The following procedural rules apply 

to formal complaint proceedings under 

47 U.S.C. 208, pole attachment 

complaint proceedings under 47 U.S.C. 

224, and advanced communications 

services and equipment formal 

complaint proceedings under 47 U.S.C. 

255, 617, and 619, and part 14 of this 

chapter. Additional rules relevant only 

to pole attachment complaint 

proceedings are provided in subpart J of 

this part. 

§ 1.721 General pleading requirements. 

Formal complaint proceedings are 

generally resolved on a written record 

consisting of a complaint, answer, reply, 

and joint statement of stipulated facts, 

disputed facts and key legal issues, 

along with all associated evidence in the 

record. The Commission may also 

require or permit other written 

submissions such as briefs, proposed 

findings of fact and conclusions of law, 

or other supplementary documents or 

pleadings. 

(a) All papers filed in any proceeding 

subject to this part must be drawn in 

conformity with the requirements of 

§§ 1.49, 1.50, and 1.52. 

(b) Pleadings must be clear, concise, 

and direct. All matters concerning a 

claim, defense or requested remedy, 

including damages, should be pleaded 

fully and with specificity. 

(c) Pleadings must contain facts 

which, if true, are sufficient to 

constitute a violation of the Act or a 

Commission regulation or order, or a 

defense to an alleged violation. 

(d) Averred facts, claims, or defenses 

shall be made in numbered paragraphs 

and must be supported by relevant 

evidence. The contents of each 

paragraph shall be limited as far as 

practicable to a statement of a single set 

of circumstances. Each claim founded 

on a separate transaction or occurrence 

and each affirmative defense shall be 

separately stated to facilitate the clear 

presentation of the matters set forth. 

Assertions based on information and 

belief are prohibited unless made in 

good faith and accompanied by a 

declaration or affidavit explaining the 

basis for the party’s belief and why the 

party could not reasonably ascertain the 

facts from any other source. 

(e) Legal arguments must be 

supported by appropriate statutory, 

judicial, or administrative authority. 

(f) Opposing authorities must be 

distinguished. 

(g) Copies must be provided of all 

non-Commission authorities relied upon 

which are not routinely available in 

national reporting systems, such as 

unpublished decisions or slip opinions 

of courts or administrative agencies. In 

addition, copies of state authorities 

relied upon shall be provided. 

(h) Parties are responsible for the 

continuing accuracy and completeness 

of all information and supporting 

authority furnished in a pending 

complaint proceeding. Information 

submitted, as well as relevant legal 

authorities, must be current and 

updated as necessary and in a timely 

manner before a decision is rendered on 

the merits of the complaint. 

(i) Specific reference shall be made to 

any tariff or contract provision relied on 

in support of a claim or defense. Copies 

of relevant tariffs, contracts, or relevant 

portions that are referred to or relied 

upon in a complaint, answer, or other 

pleading shall be appended to such 

pleading. 

(j) Pleadings shall identify the name, 

address, telephone number, and email 

address for either the filing party’s 

attorney or, where a party is not 

represented by an attorney, the filing 

party. Pleadings may be signed by a 

party’s attorney. 

(k) All attachments shall be Batesstamped or otherwise numbered 

sequentially. Parties shall cite to Batesstamped page numbers in their 

pleadings. 

(l) Pleadings shall be served on all 

parties to the proceeding in accordance 

with § 1.734 and shall include a 

certificate of service. 

(m) Each pleading or other 

submission must contain a written 

verification that the signatory has read 

the submission and, 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 for any improper 

purpose, such as to harass, cause 

unnecessary delay, or needlessly 

increase the cost of the proceeding. If 

any pleading or other submission is 

signed in violation of this provision, the 

Commission may upon motion or upon 

its own initiative impose appropriate 

sanctions. 

(n) Parties may petition the staff, 

pursuant to § 1.3, for a waiver of any of 

the rules governing formal complaints. 

Such waiver may be granted for good 

cause shown. 

(o) A complaint may, on request of the 

filing party, be dismissed without 

prejudice as a matter of right prior to the 

adoption date of any final action taken 

by the Commission with respect to the 

complaint. A request for the return of an 

initiating document will be regarded as 

a request for dismissal. 

(p) Amendments or supplements to 

complaints to add new claims or 

requests for relief are prohibited. 

(q) Failure to prosecute a complaint 

will be cause for dismissal. 

(r) Any document purporting to be a 

formal complaint which does not state 

a cause of action under the 

Communications Act, or a Commission 

regulation or order, will be dismissed. 

In such case, any amendment or 

supplement to such document will be 

considered a new filing which must be 

made within any applicable statutory 

limitations of actions. 

(s) Any other pleading that does not 

conform with the requirements of the 

applicable rules may be deemed 

defective. In such case the Commission 

may strike the pleading or request that 

specified defects be corrected and that 


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proper pleadings be filed with the 

Commission and served on all parties 

within a prescribed time as a condition 

to being made a part of the record in the 

proceeding. 

(t) Pleadings shall be construed so as 

to do justice. 

(u) Any party that fails to respond to 

official correspondence, a request for 

additional information, or an order or 

directive from the Commission may be 

subject to appropriate sanctions. 

§ 1.722 Format and content of complaints. 

A formal complaint shall contain: 

(a) The name of each complainant and 

defendant; 

(b) The occupation, address and 

telephone number of each complainant 

and, to the extent known, each 

defendant; 

(c) The name, address, telephone 

number, and email address of 

complainant’s attorney, if represented 

by counsel; 

(d) Citation to the section of the 

Communications Act or Commission 

regulation or order alleged to have been 

violated; each such alleged violation 

shall be stated in a separate count; 

(e) Legal analysis relevant to the 

claims and arguments set forth therein; 

(f) The relief sought, including 

recovery of damages and the amount of 

damages claimed, if known; 

(g) Certification that the complainant 

has, in good faith, discussed or 

attempted to discuss the possibility of 

settlement with each defendant prior to 

the filing of the formal complaint. In 

disputes between businesses, 

associations, or other organizations, the 

certification shall include a statement 

that the complainant has engaged or 

attempted to engage in executive-level 

discussions concerning the possibility 

of settlement. Executive-level 

discussions are discussions among 

representatives of the parties who have 

sufficient authority to make binding 

decisions on behalf of the entity they 

represent regarding the subject matter of 

the discussions. Such certification shall 

include a statement that, prior to the 

filing of the complaint, the complainant 

notified each defendant in writing of the 

allegations that form the basis of the 

complaint and invited a response within 

a reasonable period of time. A refusal by 

a defendant to engage in discussions 

contemplated by this rule may 

constitute an unreasonable practice 

under the Act. The certification shall 

also include a brief summary of all 

additional steps taken to resolve the 

dispute prior to the filing of the formal 

complaint; 

(h) A statement explaining whether a 

separate action has been filed with the 

Commission, any court, or other 

government agency that is based on the 

same claim or same set of facts, in 

whole or in part, or whether the 

complaint seeks prospective relief 

identical to the relief proposed or at 

issue in a notice-and-comment 

rulemaking proceeding that is 

concurrently before the Commission; 

(i) An information designation 

containing: 

(1) The name and, if known, the 

address and telephone number of each 

individual likely to have information 

relevant to the proceeding, along with 

the subjects of that information, 

excluding individuals otherwise 

identified in the complaint or exhibits 

thereto, and individuals employed by 

another party; and 

(2) A copy—or a description by 

category and location—of all relevant 

documents, electronically stored 

information, and tangible things that the 

disclosing party has in its possession, 

custody, or control, excluding 

documents submitted with the 

complaint. 

(j) A completed Formal Complaint 

Intake Form; 

(k) A declaration, under penalty of 

perjury, by the complainant or 

complainant’s counsel describing the 

amount, method, and date of the 

complainant’s payment of the filing fee 

required under § 1.1106 and the 

complainant’s 10-digit FCC Registration 

Number, as required by subpart W of 

this part. Submission of a complaint 

without the FCC Registration Number 

will result in dismissal of the complaint. 

§ 1.723 Damages. 

(a) If a complainant in a formal 

complaint proceeding wishes to recover 

damages, the complaint must contain a 

clear and unequivocal request for 

damages. 

(b) In all cases in which recovery of 

damages is sought, the complaint must 

include either: 

(1) 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 prove the amount of 

such damages; or 

(2) If any information not in the 

possession of the complainant is 

necessary to develop a detailed 

computation of damages, an explanation 

of: 

(i) Why such information is 

unavailable to the complaining party; 

(ii) The factual basis the complainant 

has for believing that such evidence of 

damages exists; and 

(iii) A detailed outline of the 

methodology that would be used to 

create a computation of damages with 

such evidence. 

(c) If a complainant wishes a 

determination of damages to be made in 

a proceeding that is separate from and 

subsequent to the proceeding in which 

the determinations of liability and 

prospective relief are made, the 

complainant must: 

(1) Comply with paragraph (a) of this 

section, and 

(2) State clearly and unequivocally 

that the complainant wishes a 

determination of damages to be made in 

a proceeding that is separate from and 

subsequent to the proceeding in which 

the determinations of liability and 

prospective relief will be made. 

(d) If the Commission decides that a 

determination of damages would best be 

made in a proceeding that is separate 

from and subsequent to the proceeding 

in which the determinations of liability 

and prospective relief are made, the 

Commission may at any time bifurcate 

the case and order that the initial 

proceeding will determine only liability 

and prospective relief, and that a 

separate, subsequent proceeding 

initiated in accordance with paragraph 

(e) of this section will determine 

damages. 

(e) If a complainant exercises its right 

under paragraph (c) of this section, or 

the Commission invokes its authority 

under paragraph (d) of this section, the 

complainant may initiate a separate 

proceeding to obtain a determination of 

damages by filing a supplemental 

complaint within sixty days after public 

notice (as defined in § 1.4(b)) of a 

decision that contains a finding of 

liability on the merits of the original 

complaint. Supplemental complaints 

filed pursuant to this section need not 

comply with the requirements in 

§§ 1.721(c) or 1.722(d), (g), (h), (j), and 

(k). The supplemental complaint shall 

be deemed, for statutory limitations 

purposes, to relate back to the date of 

the original complaint. 

(f) The Commission may, in its 

discretion, order the defendant either to 

post a bond for, or deposit into an 

interest bearing escrow account, a sum 

equal to the amount of damages which 

the Commission 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: 

(1) The complainant’s potential 

irreparable injury in the absence of such 

deposit; 


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(2) The extent to which damages can 

be accurately calculated; 

(3) The balance of the hardships 

between the complainant and the 

defendant; and 

(4) Whether public interest 

considerations favor the posting of the 

bond or ordering of the deposit. 

(g) The Commission may, in its 

discretion, end adjudication of damages 

by adopting a damages computation 

method or formula. In such cases, the 

parties shall negotiate in good faith to 

reach an agreement on the exact amount 

of damages pursuant to the 

Commission-mandated method or 

formula. Within 30 days of the release 

date of the damages order, parties shall 

submit jointly to the Commission either: 

(1) A statement detailing the parties’ 

agreement as to the amount of damages; 

(2) A statement that the parties are 

continuing to negotiate in good faith 

and a request that the parties be given 

an extension of time to continue 

negotiations; or 

(3) A statement detailing the bases for 

the continuing dispute and the reasons 

why no agreement can be reached. 

(h) In any proceeding to which no 

statutory deadline applies, the 

Commission may, in its discretion, 

suspend ongoing damages proceedings 

to provide the parties with time to 

pursue settlement negotiations or 

mediation under § 1.737. 

§ 1.724 Complaints governed by section 

208(b)(1) of the Act. 

(a) Any party that intends to file a 

complaint subject to the 5-month 

deadline in 47 U.S.C. 208(b)(1) must 

comply with the pre-complaint 

procedures below. The Enforcement 

Bureau’s Market Disputes Resolution 

Division will not process complaints 

subject to the 5-month deadline unless 

the filer complies with these 

procedures. 

(b) A party seeking to file a complaint 

subject to 47 U.S.C. 208(b)(1) shall 

notify the Chief of the Market Disputes 

Resolution Division in writing of its 

intent to file the complaint, and provide 

a copy of the letter to the defendant. 

Commission staff will convene a 

conference with both parties as soon as 

practicable. During that conference, the 

staff may discuss, among other things: 

(1) Scheduling in the case; 

(2) Narrowing factual and legal issues 

in dispute; 

(3) Information exchange and 

discovery necessary to adjudicate the 

dispute; 

(4) Entry of a protective order 

governing confidential material; and 

(5) Preparation for and scheduling a 

mandatory settlement negotiation 

session at the Commission. 

(c) Staff will endeavor to complete the 

pre-complaint process as expeditiously 

as possible. Staff may direct the parties 

to exchange relevant information during 

the pre-complaint period. 

§ 1.725 Joinder of complainants and 

causes of action. 

(a) Two or more complainants may 

join in one complaint if their respective 

causes of action are against the same 

defendant and concern substantially the 

same facts and alleged violation of the 

Communications Act or Commission 

regulation or order. 

(b) Two or more grounds of complaint 

involving substantially the same facts 

may be included in one complaint, but 

should be separately stated and 

numbered. 

§ 1.726 Answers. 

(a) Any defendant upon which a copy 

of a formal complaint is served shall 

answer such complaint in the manner 

prescribed under this section within 30 

calendar days of service of the formal 

complaint by the complainant, 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 shall be made to 

narrow the issues in the answer. The 

defendant shall state concisely its 

defense to each claim asserted, admit or 

deny the averments on which the 

complainant relies, and state in detail 

the basis for admitting or denying such 

averment. General denials are 

prohibited. Denials based on 

information and belief are prohibited 

unless made in good faith and 

accompanied by a declaration or 

affidavit explaining the basis for the 

defendant’s belief and why the 

defendant could not reasonably 

ascertain the facts from the complainant 

or any other source. 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 deny the 

allegations of the complaint as specific 

denials of either designated averments 

or paragraphs. 

(c) The answer shall include legal 

analysis relevant to the claims and 

arguments set forth therein. 

(d) Averments in a complaint or 

supplemental complaint filed pursuant 

to § 1.723(d) are deemed to be admitted 

when not denied in the answer. 

(e) Affirmative defenses to allegations 

in the complaint shall be specifically 

captioned as such and presented 

separately from any denials made in 

accordance with paragraph (b) of this 

section. 

(f) The answer shall include an 

information designation containing: 

(1) The name and, if known, the 

address and telephone number of each 

individual likely to have information 

relevant to the proceeding, along with 

the subjects of that information, 

excluding individuals otherwise 

identified in the complaint, answer, or 

exhibits thereto, and individuals 

employed by another party; and 

(2) A copy—or a description by 

category and location—of all relevant 

documents, electronically stored 

information, and tangible things that the 

disclosing party has in its possession, 

custody, or control, excluding 

documents submitted with the 

complaint or answer. 

(g) Failure to file an answer may be 

deemed an admission of the material 

facts alleged in the complaint. Any 

defendant that fails 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 such defendant in 

accordance with the allegations 

contained in the complaint. 

§ 1.727 Cross-complaints and 

counterclaims. 

Cross-complaints seeking any relief 

within the jurisdiction of the 

Commission against any party 

(complainant or defendant) to that 

proceeding are prohibited. Any claim 

that might otherwise meet the 

requirements of a cross-complaint may 

be filed as a separate complaint in 

accordance with §§ 1.720 through 1.740. 

For purposes of this subpart, the term 

‘‘cross-complaint’’ shall include 

counterclaims. 

§ 1.728 Replies. 

(a) A complainant shall file and serve 

a reply within 10 calendar days of 

service of the answer, unless otherwise 

directed by the Commission. The reply 

shall contain statements of relevant, 

material facts and legal arguments that 

respond to the factual allegations and 

legal arguments made by the defendant. 

Other allegations or arguments will not 

be considered by the Commission. 

(b) Failure to reply will not be 

deemed an admission of any allegations 

contained in the responsive pleading, 

except with respect to any affirmative 

defense set forth therein. Failure to 


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reply to an affirmative defense shall be 

deemed an admission of such 

affirmative defense and of any facts 

supporting such affirmative defense that 

are not specifically contradicted in the 

complaint. 

(c) The reply shall include legal 

analysis relevant to the claims and 

arguments set forth therein. 

(d) The reply shall include an 

information designation containing: 

(1) The name and, if known, the 

address and telephone number of each 

individual likely to have information 

relevant to the proceeding and 

addressed in the reply, along with the 

subjects of that information, excluding 

individuals otherwise identified in the 

complaint, answer, reply, or exhibits 

thereto, and individuals employed by 

another party; and 

(2) A copy—or a description by 

category and location—of all relevant 

documents, electronically stored 

information, and tangible things that the 

disclosing party has in its possession, 

custody, or control that are addressed in 

the reply, excluding documents 

submitted with the complaint or 

answer. 

§ 1.729 Motions. 

(a) A request for a Commission order 

shall be by written motion, stating with 

particularity the grounds and authority 

therefor, including any supporting legal 

analysis, and setting forth the relief 

sought. 

(b) Motions to compel discovery must 

contain a certification by the moving 

party that a good faith attempt to resolve 

the dispute was made prior to filing the 

motion. 

(c) Motions seeking an order that the 

allegations in the complaint be made 

more definite and certain are prohibited. 

(d) Motions to dismiss all or part of 

a complaint are permitted. The filing of 

a motion to dismiss does not suspend 

any other filing deadlines under the 

Commission’s rules, unless staff issues 

an order suspending such deadlines. 

(e) Oppositions to motions shall be 

filed and served within 5 business days 

after the motion is served. 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, the opposition to 

such 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 the 

motion. 

(f) No reply may be filed to an 

opposition to a motion, except under 

direction of Commission staff. 

§ 1.730 Discovery. 

(a) A complainant may file with the 

Commission and serve on a defendant, 

concurrently with its complaint, up to 

10 written interrogatories. A defendant 

may file with the Commission and serve 

on a complainant, concurrently with its 

answer, up to 10 written interrogatories. 

A complainant may file with the 

Commission and serve on a defendant, 

concurrently with its reply, up to five 

additional written interrogatories. 

Subparts of any interrogatory will be 

counted as separate interrogatories for 

purposes of compliance with this limit. 

Interrogatories filed and served 

pursuant to this procedure may be used 

to seek discovery of any non-privileged 

matter that is relevant to the material 

facts in dispute in the pending 

proceeding. This procedure may not be 

employed for the purpose of delay, 

harassment, or obtaining information 

that is beyond the scope of permissible 

inquiry related to the material facts in 

dispute in the proceeding. 

(b) Interrogatories filed and served 

pursuant to paragraph (a) of this section 

shall contain an explanation of why the 

information sought in each interrogatory 

is both necessary to the resolution of the 

dispute and not available from any other 

source. 

(c) Unless otherwise directed by the 

Commission, within seven calendar 

days, a responding party shall file with 

the Commission and serve on the 

propounding party any opposition and 

objections to interrogatories. The 

grounds for objecting to an interrogatory 

must be stated with specificity. Unless 

otherwise directed by the Commission, 

any interrogatories to which no 

opposition or objection is raised shall be 

answered within 20 calendar days. 

(d) Commission staff shall rule in 

writing on the scope of, and schedule 

for answering, any disputed 

interrogatories based upon the 

justification for the interrogatories 

properly filed and served pursuant to 

paragraph (a) of this section, and any 

objections or oppositions thereto, 

properly filed and served pursuant to 

paragraph (c) of this section. 

(e) Interrogatories shall be answered 

separately and fully in writing under 

oath or affirmation by the party served, 

or if such party is a public or private 

corporation or partnership or 

association, by any officer or agent who 

shall furnish such information as is 

available to the party. The answers shall 

be signed by the person making them, 

and the attorney who objects must sign 

any objections. The answers shall be 

filed with the Commission and served 

on the propounding party. 

(f) The Commission, in its discretion, 

may allow additional discovery, 

including, but not limited to, document 

production and/or depositions, and it 

may modify the scope, means and 

scheduling of discovery in light of the 

needs of a particular case and the 

requirements of applicable statutory 

deadlines. 

(g) The Commission may, in its 

discretion, require parties to provide 

documents to the Commission in a 

scanned or other electronic format that: 

(1) Indexes the documents by useful 

identifying information; and 

(2) Allows staff to annotate the index 

so as to make the format an efficient 

means of reviewing the documents. 

(h) A propounding party asserting that 

a responding party has provided an 

inadequate or insufficient response to a 

discovery request may file a motion to 

compel within ten days of the service of 

such response, or as otherwise directed 

by Commission staff, pursuant to the 

requirements of § 1.729. 

§ 1.731 Confidentiality of information 

produced or exchanged. 

(a) Any information produced in the 

course of a formal complaint proceeding 

may be designated as confidential by 

either party to the proceeding or a third 

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), and 

under § 0.459 of this chapter. Any party 

asserting confidentiality for such 

materials must: 

(1) Clearly mark each page, or portion 

thereof, for which a confidential 

designation is claimed. The party 

claiming confidentiality should restrict 

its designations to encompass only the 

specific information that it asserts is 

confidential. If a confidential 

designation is challenged, the party 

claiming confidentiality shall have the 

burden of demonstrating, by a 

preponderance of the evidence, that the 

materials designated as confidential fall 

under the standards for nondisclosure 

enunciated in the FOIA and that the 

designation is narrowly tailored to 

encompass only confidential 

information. 

(2) File with the Commission, using 

the Commission’s Electronic Comment 

Filing System, a public version of the 

materials that redacts any confidential 

information and clearly marks each page 

of the redacted public version with a 

header stating ‘‘Public Version.’’ The 

redacted document shall be machinereadable whenever technically possible. 

Where the document to be filed 

electronically contains metadata that is 


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confidential or protected from 

disclosure by a legal privilege 

(including, for example, the attorneyclient privilege), the filer may remove 

such metadata from the document 

before filing it electronically. 

(3) File with the Secretary’s Office an 

unredacted hard copy version of the 

materials that contains the confidential 

information and clearly marks each page 

of the unredacted confidential version 

with a header stating ‘‘Confidential 

Version.’’ The unredacted version must 

be filed on the same day as the redacted 

version. 

(4) Serve one hard copy of the filed 

unredacted materials and one hard copy 

of the filed redacted materials on the 

attorney of record for each party to the 

proceeding, or, where a party is not 

represented by an attorney, each party 

to the proceeding either by hand 

delivery, overnight delivery, or email, 

together with a proof of such service in 

accordance with the requirements of 

§§ 1.47(g) and 1.734(f). 

(b) An attorney of record for a party 

or a party that receives unredacted 

materials marked as confidential may 

disclose such materials solely to the 

following persons, only for use in 

prosecuting or defending a party to the 

complaint action, and only to the extent 

necessary to assist in the prosecution or 

defense of the case: 

(1) Support personnel for counsel of 

record representing the parties in the 

complaint action; 

(2) Officers or employees of the 

receiving party who are directly 

involved in the prosecution or defense 

of the case; 

(3) Consultants or expert witnesses 

retained by the parties; and 

(4) Court reporters and stenographers 

in accordance with the terms and 

conditions of this section. 

(c) The individuals identified in 

paragraph (b) of this section shall not 

disclose information designated as 

confidential to any person who is not 

authorized under this section to receive 

such information, and shall not use the 

information in any activity or function 

other than the prosecution or defense in 

the case before the Commission. Each 

such individual who is provided access 

to the information shall sign a 

declaration or affidavit stating that the 

individual has personally reviewed the 

Commission’s rules and understands the 

limitations they impose on the signing 

party. 

(d) Parties may make copies of 

materials marked confidential solely for 

use by the Commission or persons 

designated in paragraph (b) of this 

section. Each party shall maintain a log 

recording the number of copies made of 

all confidential material and the persons 

to whom the copies have been provided. 

(e) The Commission may adopt a 

protective order with further restrictions 

as appropriate. 

(f) Upon termination of a formal 

complaint proceeding, including all 

appeals and petitions, the parties shall 

ensure that all originals and 

reproductions of any confidential 

materials, along with the log recording 

persons who received copies of such 

materials, shall be provided to the 

producing party. In addition, upon final 

termination of the proceeding, any notes 

or other work product derived in whole 

or in part from the confidential 

materials of an opposing or third party 

shall be destroyed. 

§ 1.732 Other required written 

submissions. 

(a) The Commission may, in its 

discretion, require the parties to file 

briefs summarizing the facts and issues 

presented in the pleadings and other 

record evidence and presenting relevant 

legal authority and analysis. The 

Commission may limit the scope of any 

briefs to certain subjects or issues. 

Unless otherwise directed by the 

Commission, all briefs shall include all 

legal and factual claims and defenses 

previously set forth in the complaint, 

answer, or any other pleading submitted 

in the proceeding. 

(b) Claims and defenses previously 

made but not reflected in the briefs will 

be deemed abandoned. 

(c) The Commission may require the 

parties to submit any additional 

information it deems appropriate for a 

full, fair, and expeditious resolution of 

the proceeding. 

§ 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. 

A status conference may include 

discussion of: 

(1) Simplification or narrowing of the 

issues; 

(2) The necessity for or desirability of 

additional pleadings or evidentiary 

submissions; 

(3) Obtaining admissions of fact or 

stipulations between the parties as to 

any or all of the matters in controversy; 

(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 such discovery; 

(6) The schedule for the remainder of 

the case and the dates for any further 

status conferences; and 

(7) Such other matters that may aid in 

the disposition of the complaint. 

(b)(1) Parties shall meet and confer 

prior to the initial status conference to 

discuss: 

(i) Settlement prospects; 

(ii) Discovery; 

(iii) Issues in dispute; 

(iv) Schedules for pleadings; 

(v) Joint statement of stipulated facts, 

disputed facts, and key legal issues; and 

(2) Parties shall submit a joint 

statement of all proposals agreed to and 

disputes remaining as a result of such 

meeting to Commission staff on a date 

specified by the Commission. 

(c) In addition to the initial 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. 

(d) During a status conference, the 

Commission staff may issue oral rulings 

pertaining to a variety of 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. 

(e) Status conferences will be 

scheduled by the Commission staff at 

such time and place as it may designate 

to be conducted in person or by 

telephone conference call. 

(f) The failure of any attorney or party, 

following reasonable notice, to appear at 

a scheduled conference will be deemed 

a waiver by that party and will not 

preclude the Commission staff from 

conferring with those parties or counsel 

present. 

§ 1.734 Fee remittance; electronic filing; 

copies; service; separate filings against 

multiple defendants. 

(a) Complaints may not be brought 

against multiple defendants unless they 

are commonly owned or controlled, are 

alleged to have acted in concert, are 

alleged to be jointly liable to 

complainant, or the complaint concerns 

common questions of law or fact. 

Complaints may, however, be 

consolidated by the Commission for 

disposition. 

(b) The complainant shall remit 

separately the correct fee either by 

check, wire transfer, or electronically, in 

accordance with part 1, subpart G (see 

§ 1.1106) and, shall file an original copy 

of the complaint, using the 

Commission’s Electronic Comment 

Filing System. If a complaint is 

addressed against multiple defendants, 

the complainant shall pay a separate fee 

for each additional defendant. 

(c) The complainant shall serve the 

complaint by hand delivery on either 

the named defendant or one of the 


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named defendant’s registered agents for 

service of process on the same date that 

the complaint is filed with the 

Commission in accordance with the 

requirements of paragraph (b) of this 

section. 

(d) Upon receipt of the complaint by 

the Commission, the Commission shall 

promptly send, by email, to each 

defendant named in the complaint, 

notice of the filing of the complaint. The 

Commission shall additionally send by 

email, to all parties, a schedule detailing 

the date the answer and any other 

applicable pleading will be due and the 

date, time, and location of the initial 

status conference. 

(e) Parties shall provide hard copies of 

all submissions to staff in the 

Enforcement Bureau upon request. 

(f) All subsequent pleadings and 

briefs filed in any formal complaint 

proceeding, as well as all letters, 

documents, or other written 

submissions, shall be filed using the 

Commission’s Electronic Comment 

Filing System, excluding confidential 

material as set forth in § 1.731. In 

addition, all pleadings and briefs filed 

in any formal complaint proceeding, as 

well as all letters, documents, or other 

written submissions, shall be served by 

the filing party on the attorney of record 

for each party to the proceeding, or, 

where a party is not represented by an 

attorney, each party to the proceeding 

either by hand delivery, overnight 

delivery, or email, together with a proof 

of such service in accordance with the 

requirements of § 1.47(g). Service is 

deemed effective as follows: 

(1) Service by hand delivery that is 

delivered to the office of the recipient 

by 5:30 p.m., local time of the recipient, 

on a business day will be deemed 

served that day. Service by hand 

delivery that is delivered to the office of 

the recipient after 5:30 p.m., local time 

of the recipient, on a business day will 

be deemed served on the following 

business day; 

(2) Service by overnight delivery will 

be deemed served the business day 

following the day it is accepted for 

overnight delivery by a reputable 

overnight delivery service; or 

(3) Service by email that is fully 

transmitted to the office of the recipient 

by 5:30 p.m., local time of the recipient, 

on a business day will be deemed 

served that day. Service by email that is 

fully transmitted to the office of the 

recipient after 5:30 p.m., local time of 

the recipient, on a business day will be 

deemed served on the following 

business day. 

(g) Supplemental complaints filed 

pursuant to § 1.723 shall conform to the 

requirements set forth in this section, 

except that the complainant need not 

submit a filing fee. 

§ 1.735 Conduct of proceedings. 

(a) The Commission may issue such 

orders and conduct its proceedings as 

will best conduce to the proper dispatch 

of business and the ends of justice. 

(b) The Commission may decide each 

complaint upon the filings and 

information before it, may request 

additional information from the parties, 

and may require one or more informal 

meetings with the parties to clarify the 

issues or to consider settlement of the 

dispute. 

§ 1.736 Accelerated Docket Proceedings. 

(a) With the exception of complaint 

proceedings under 47 U.S.C. 255, 617, 

and 619, and part 14 of this chapter, 

parties to a formal complaint proceeding 

against a common carrier, or a pole 

attachment complaint proceeding 

against a cable television system 

operator, a utility, or a 

telecommunications carrier, may 

request inclusion on the Accelerated 

Docket. Proceedings on the Accelerated 

Docket must be concluded within 60 

days, and are therefore subject to shorter 

pleading deadlines and other 

modifications to the procedural rules 

that govern formal complaint 

proceedings. 

(b) A complainant that seeks 

inclusion of a proceeding on the 

Accelerated Docket shall submit a 

request to the Chief of the Enforcement 

Bureau’s Market Disputes Resolution 

Division, by phone and in writing, prior 

to filing the complaint. 

(c) Within five days of receiving 

service of any formal complaint against 

a common carrier, or a pole attachment 

complaint against a cable television 

system operator, a utility, or a 

telecommunications carrier, a defendant 

may submit a request seeking inclusion 

of the proceeding on the Accelerated 

Docket to the Chief of the Enforcement 

Bureau’s Market Disputes Resolution 

Division. The defendant shall submit 

such request by phone and in writing, 

and contemporaneously transmit a copy 

of the written request to all parties to 

the proceeding. 

(d) Commission staff has discretion to 

decide whether a complaint, or portion 

of a complaint, is suitable for inclusion 

on the Accelerated Docket. 

(e) In appropriate cases, Commission 

staff may require that the parties 

participate in pre-filing settlement 

negotiations or mediation under § 1.737. 

(f) If the parties do not resolve their 

dispute and the matter is accepted for 

handling on the Accelerated Docket, 

staff will establish the schedule and 

process for the proceeding. 

(g) If it appears at any time that a 

proceeding on the Accelerated Docket is 

no longer appropriate for such 

treatment, Commission staff may 

remove the matter from the Accelerated 

Docket either on its own motion or at 

the request of any party. 

(h) In Accelerated Docket 

proceedings, the Commission may 

conduct a minitrial, or a trial-type 

hearing, as an alternative to deciding a 

case on a written record. Minitrials shall 

take place no later than between 40 and 

45 days after the filing of the complaint. 

A Commission Administrative Law 

Judge (‘‘ALJ’’) or staff may preside at the 

minitrial. 

(i) Applications for review of staff 

decisions issued on delegated authority 

in Accelerated Docket proceedings shall 

comply with the filing and service 

requirements in § 1.115(e)(4). In 

Accelerated Docket proceedings which 

raise issues that may not be decided on 

delegated authority (see 47 U.S.C. 

155(c)(1); 47 CFR 0.331(c)), the staff 

decision will be a recommended 

decision subject to adoption or 

modification by the Commission. Any 

party to the proceeding that seeks 

modification of the recommended 

decision shall do so by filing comments 

challenging the decision within 15 days 

of its release. Opposition comments, 

shall be filed within 15 days of the 

comments challenging the decision; 

reply comments shall may be filed 10 

days thereafter and shall be limited to 

issues raised in the opposition 

comments. 

(j) If no party files comments 

challenging the recommended decision, 

the Commission will issue its decision 

adopting or modifying the 

recommended decision within 45 days 

of its release. If parties to the proceeding 

file comments to the recommended 

decision, the Commission will issue its 

decision adopting or modifying the 

recommended decision within 30 days 

of the filing of the final comments. 

■ 8. Add §§ 1.737 through 1.740 to read 

as follows: 

§ 1.737 Mediation. 

(a) The Commission encourages 

parties to attempt to settle or narrow 

their disputes. To that end, staff in the 

Enforcement Bureau’s Market Disputes 

Resolution Division are available to 

conduct mediations. Staff will 

determine whether a matter is 

appropriate for mediation. Participation 

in mediation is generally voluntary, but 

may be required as a condition for 

including a matter on the Accelerated 

Docket. 


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(b) Parties may request mediation of a 

dispute before the filing of a complaint. 

After a complaint has been filed, parties 

may request mediation as long as a 

proceeding is pending before the 

Commission. 

(c) Parties may request mediation by: 

Calling the Chief of the Enforcement 

Bureau’s Market Disputes Resolution 

Division; submitting a written request in 

a letter addressed to the Chief of the 

Market Disputes Resolution Division; or 

including a mediation request in any 

pleading in a formal complaint 

proceeding, or an informal complaint 

proceeding under § 1.717. Any party 

requesting mediation must verify that it 

has attempted to contact all other 

parties to determine whether they are 

amenable to mediation, and shall state 

the response of each party, if any. 

(d) Staff will schedule the mediation 

in consultation with the parties. Staff 

may request written statements and 

other information from the parties to 

assist in the mediation. 

(e) In any proceeding to which no 

statutory deadline applies, staff may, in 

its discretion, hold a case in abeyance 

pending mediation. 

(f) The parties and Commission staff 

shall keep confidential all written and 

oral communications prepared or made 

for purposes of the mediation, including 

mediation submissions, offers of 

compromise, and staff and party 

comments made during the course of 

the mediation (Mediation 

Communications). Neither staff nor the 

parties may use, disclose or seek to 

disclose Mediation Communications in 

any proceeding before the Commission 

(including an arbitration or a formal 

complaint proceeding involving the 

instant dispute) or before any other 

tribunal, unless compelled to do so by 

law. Documents and information that 

are otherwise discoverable do not 

become Mediation Communications 

merely because they are disclosed or 

discussed during the mediation. Unless 

otherwise directed by Commission staff, 

the existence of the mediation will not 

be treated as confidential. A party may 

request that the existence of the 

mediation be treated as confidential in 

a case where this fact has not previously 

been publicly disclosed, and staff may 

grant such a request for good cause 

shown. 

(g) Any party or Commission staff 

may terminate a mediation by notifying 

other participants of their decision to 

terminate. Staff shall promptly confirm 

in writing that the mediation has ended. 

The confidentiality rules in paragraph 

(f) of this section shall continue to apply 

to any Mediation Communications. 

Further, unless otherwise directed, any 

staff ruling requiring that the existence 

of the mediation be treated as 

confidential will continue to apply after 

the mediation has ended. 

(h) For disputes arising under 47 

U.S.C. 255, 617, and 619, and the 

advanced communications services and 

equipment rules, parties shall submit 

the Request for Dispute Assistance in 

accordance with § 14.32 of this chapter. 

§ 1.738 Complaints filed pursuant to 47 

U.S.C. 271(d)(6)(B). 

(a) Where a complaint is filed 

pursuant to 47 U.S.C. 271(d)(6)(B), 

parties shall indicate whether they are 

willing to waive the 90 day resolution 

deadline contained in 47 U.S.C. 

271(d)(6)(B) in the following manner: 

(1) The complainant shall so indicate 

in both the complaint itself and in the 

Formal Complaint Intake Form, and the 

defendant shall so indicate in its 

answer; or 

(2) The parties shall indicate their 

agreement to waive the 90 day 

resolution deadline to the Commission 

staff at the initial status conference, to 

be held in accordance with § 1.733. 

(b) Requests for waiver of the 90 day 

resolution deadline for complaints filed 

pursuant to 47 U.S.C. 271(d)(6)(B) will 

not be entertained by the Commission 

staff subsequent to the initial status 

conference, absent a showing by the 

complainant and defendant that such 

waiver is in the public interest. 

§ 1.739 Primary jurisdiction referrals. 

(a) Any party to a case involving 

claims under the Act that has been 

referred to the Commission by a court 

pursuant to the primary jurisdiction 

doctrine must contact the Market 

Disputes Resolution Division of the 

Enforcement Bureau for guidance before 

filing any pleadings or otherwise 

proceeding before the Commission. 

(b) Based upon an assessment of the 

procedural history and the nature of the 

issues involved, the Market Disputes 

Resolution Division will determine the 

procedural means by which the 

Commission will handle the primary 

jurisdiction referral. 

(c) Failure to contact the Market 

Disputes Resolution Division prior to 

filing any pleadings or otherwise 

proceeding before the Commission, or 

failure to abide by the Division’s 

determinations regarding the referral, 

may result in dismissal. 

§ 1.740 Review period for section 208 

formal complaints not governed by section 

208(b)(1) of the Act. 

(a) Except in extraordinary 

circumstances, final action on a formal 

complaint filed pursuant to section 208 

of the Act, and not governed by section 

208(b)(1), should be expected no later 

than 270 days from the date the 

complaint is filed with the Commission. 

(b) The Enforcement Bureau shall 

have the discretion to pause the 270-day 

review period in situations where 

actions outside the Commission’s 

control are responsible for unreasonably 

delaying Commission review of a 

complaint referenced in paragraph (a) of 

this section. 

■ 9. Amend the table of contents of part 

1 by revising the entries in Subpart J to 

read as follows: 

* * * * * 

Subpart J—Pole Attachment Complaint 

Procedures 

Sec. 

1.1401 Purpose. 

1.1402 Definitions. 

1.1403 Duty to provide access; 

modifications; notice of removal, 

increase or modification; petition for 

temporary stay; and cable operator 

notice. 

1.1404 Pole attachment complaint 

proceedings. 

1.1405 Dismissal of pole attachment 

complaints for lack of jurisdiction. 

1.1406 Commission consideration of the 

complaint. 

1.1407 Remedies. 

1.1408 Imputation of rates; modification 

costs. 

1.1409 Allocation of unusable space costs. 

1.1410 Use of presumptions in calculating 

the space factor. 

1.1411 Timeline for access to utility poles. 

1.1412 Contractors for survey and makeready. 

1.1413 Complaints by incumbent local 

exchange carriers. 

1.1414 Review period for pole access 

complaints. 

* * * * * 

■ 10. Revise § 1.1401 to read as follows: 

§ 1.1401 Purpose. 

The rules and regulations contained 

in subpart J of this part provide 

complaint and enforcement procedures 

to ensure that telecommunications 

carriers and cable system operators have 

nondiscriminatory access to utility 

poles, ducts, conduits, and rights-of-way 

on rates, terms, and conditions that are 

just and reasonable. They also provide 

complaint and enforcement procedures 

for incumbent local exchange carriers 

(as defined in 47 U.S.C. 251(h)) to 

ensure that the rates, terms, and 

conditions of their access to pole 

attachments are just and reasonable. 

■ 11. Amend § 1.1402 by revising 

paragraph (f) to read as follows: 

§ 1.1402 Definitions. 

* * * * * 

(f) The term defendant means a cable 

television system operator, a utility, or 


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a telecommunications carrier against 

whom a complaint is filed. 

* * * * * 

■ 12. Amend § 1.1403 by revising 

paragraphs (c)(1) and (d) to read as 

follows: 

§ 1.1403 Duty to provide access; 

modifications; notice of removal, increase 

or modification; petition for temporary stay; 

and cable operator notice. 

* * * * * 

(c) * * * 

(1) Removal of facilities or 

termination of any service to those 

facilities, such removal or termination 

arising out of a rate, term or condition 

of the cable television system operator’s 

or telecommunications carrier’s pole 

attachment agreement; 

* * * * * 

(d) A cable television system operator 

or telecommunications carrier may file 

a ‘‘Petition for Temporary Stay’’ of the 

action contained in a notice received 

pursuant to paragraph (c) of this section 

within 15 days of receipt of such notice. 

Such submission shall not be 

considered unless it includes, in concise 

terms, the relief sought, the reasons for 

such relief, including a showing of 

irreparable harm and likely cessation of 

cable television service or 

telecommunication service, a copy of 

the notice, and certification of service as 

required by § 1.1404(b). The named may 

file an answer within 7 days of the date 

the Petition for Temporary Stay was 

filed. No further filings under this 

section will be considered unless 

requested or authorized by the 

Commission and no extensions of time 

will be granted unless justified pursuant 

to § 1.46. 

* * * * * 

■ 13. Revise §§ 1.1404 through 1.1405 to 

read as follows: 

§ 1.1404 Pole attachment complaint 

proceedings. 

(a) Pole attachment complaint 

proceedings shall be governed by the 

formal complaint rules in subpart E of 

this part, §§ 1.720–1.740, except as 

otherwise provided in this subpart J. 

(b) The complaint shall be 

accompanied by a certification of 

service on the named defendant, and 

each of the Federal, State, and local 

governmental agencies that regulate any 

aspect of the services provided by the 

complainant or defendant. 

(c) In a case where it is claimed that 

a rate, term, or condition is unjust or 

unreasonable, the complaint shall 

contain a statement that the State has 

not certified to the Commission that it 

regulates the rates, terms and conditions 

for pole attachments. The complaint 

shall include a statement that the utility 

is not owned by any railroad, any 

person who is cooperatively organized 

or any person owned by the Federal 

Government or any State. 

(d) The complaint shall be 

accompanied by a copy of the pole 

attachment agreement, if any, between 

the cable television system operator or 

telecommunications carrier and the 

utility. If there is no present pole 

attachment agreement, the complaint 

shall contain: 

(1) A statement that the utility uses or 

controls poles, ducts, or conduits used 

or designated, in whole or in part, for 

wire communication; and 

(2) A statement that the cable 

television system operator or 

telecommunications carrier currently 

has attachments on the poles, ducts, 

conduits, or rights-of-way. 

(e) The complaint shall state with 

specificity the pole attachment rate, 

term or condition which is claimed to 

be unjust or unreasonable and provide 

all data and information supporting 

such claim. Data and information 

supporting the complaint (including all 

information necessary for the 

Commission to apply the rate formulas 

in § 1.1406 should be based upon 

historical or original cost methodology, 

insofar as possible. Data should be 

derived from ARMIS, FERC 1, or other 

reports filed with state or federal 

regulatory agencies (identify source). 

The complainant shall also specify any 

other information and argument relied 

upon to attempt to establish that a rate, 

term, or condition is not just and 

reasonable. 

(f) A utility must supply a cable 

television system operator or 

telecommunications carrier the 

information required in paragraph (e) of 

this section, as applicable, along with 

the supporting pages from its ARMIS, 

FERC Form 1, or other report to a 

regulatory body, and calculations made 

in connection with these figures, within 

30 days of the request by the cable 

television system operator or 

telecommunications carrier. 

(g) If any of the information and data 

required in paragraphs (e) and (f) of this 

section is not provided to the cable 

television system operator or 

telecommunications carrier by the 

utility upon reasonable request, the 

cable television system operator or 

telecommunications carrier shall 

include a statement indicating the steps 

taken to obtain the information from the 

utility, including the dates of all 

requests. No complaint filed by a cable 

television system operator or 

telecommunications carrier shall be 

dismissed where the utility has failed to 

provide the information required under 

paragraphs (e) and (f) after such 

reasonable request. 

§ 1.1405 Dismissal of pole attachment 

complaints for lack of jurisdiction. 

(a) The complaint shall be dismissed 

for lack of jurisdiction in any case 

where a suitable certificate has been 

filed by a State pursuant to paragraph 

(b) of this section. Such certificate shall 

be conclusive proof of lack of 

jurisdiction of this Commission. A 

complaint alleging a denial of access 

shall be dismissed for lack of 

jurisdiction in any case where the 

defendant or a State offers proof that the 

State is regulating such access matters. 

Such proof should include a citation to 

state laws and regulations governing 

access and establishing a procedure for 

resolving access complaints in a state 

forum. A complaint against a utility 

shall also be dismissed if the utility 

does not use or control poles, ducts, or 

conduits used or designated, in whole 

or in part, for wire communication or if 

the utility does not meet the criteria of 

§ 1.1402(a). 

(b) It will be rebuttably presumed that 

the state is not regulating pole 

attachments if the Commission does not 

receive certification from a state that: 

(1) It regulates rates, terms and 

conditions for pole attachments; 

(2) In so regulating such rates, terms 

and conditions, the state has the 

authority to consider and does consider 

the interests of the consumers of the 

services offered via such attachments, as 

well as the interests of the consumers of 

the utility services; and 

(3) It has issued and made effective 

rules and regulations implementing the 

state’s regulatory authority over pole 

attachments (including a specific 

methodology for such regulation which 

has been made publicly available in the 

state). 

(c) Upon receipt of such certification, 

the Commission shall give public 

notice. In addition, the Commission 

shall compile and publish from time to 

time, a listing of states which have 

provided certification. 

(d) Upon receipt of such certification, 

the Commission shall forward any 

pending case thereby affected to the 

state regulatory authority, shall so notify 

the parties involved and shall give 

public notice thereof. 

(e) Certification shall be by order of 

the state regulatory body or by a person 

having lawful delegated authority under 

provisions of state law to submit such 

certification. Said person shall provide 

in writing a statement that he or she has 

such authority and shall cite the law, 


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regulation or other instrument 

conferring such authority. 

(f) Notwithstanding any such 

certification, jurisdiction will revert to 

this Commission with respect to any 

individual matter, unless the state takes 

final action on a complaint regarding 

such matter: 

(1) Within 180 days after the 

complaint is filed with the state, or 

(2) Within the applicable periods 

prescribed for such final action in such 

rules and regulations of the state, if the 

prescribed period does not extend 

beyond 360 days after the filing of such 

complaint. 

§§ 1.1406, 1.1407 and 1.1408 [Removed] 

■ 14. Remove §§ 1.1406, 1.1407 and 

1.1408. 

§ 1.1409 [Redesignated as § 1.1406] 

■ 15. Redesignate § 1.1409 as § 1.1406, 

and revise newly designated § 1.1406 to 

read as follows: 

§ 1.1406 Commission consideration of the 

complaint. 

(a) The complainant shall have the 

burden of establishing a prima facie 

case that the rate, term, or condition is 

not just and reasonable or that the 

denial of access violates 47 U.S.C. 

224(f). If, however, a utility argues that 

the proposed rate is lower than its 

incremental costs, the utility has the 

burden of establishing that such rate is 

below the statutory minimum just and 

reasonable rate. In a case involving a 

denial of access, the utility shall have 

the burden of proving that the denial 

was lawful, once a prima facie case is 

established by the complainant. 

(b) The Commission shall determine 

whether the rate, term or condition 

complained of is just and reasonable. 

For the purposes of this paragraph, a 

rate is just and reasonable if it assures 

a utility the recovery of not less than the 

additional costs of providing pole 

attachments, nor more than an amount 

determined by multiplying the 

percentage of the total usable space, or 

the percentage of the total duct or 

conduit capacity, which is occupied by 

the pole attachment by the sum of the 

operating expenses and actual capital 

costs of the utility attributable to the 

entire pole, duct, conduit, or right-ofway. The Commission shall exclude 

from actual capital costs those 

reimbursements received by the utility 

from cable operators and 

telecommunications carriers for nonrecurring costs. 

(c) The Commission shall deny the 

complaint if it determines that the 

complainant has not established a prima 

facie case, or that the rate, term or 

condition is just and reasonable, or that 

the denial of access was lawful. 

(d) The Commission will apply the 

following formulas for determining a 

maximum just and reasonable rate: 

(1) The following formula shall apply 

to attachments to poles by cable 

operators providing cable services. This 

formula shall also apply to attachments 

to poles by any telecommunications 

carrier (to the extent such carrier is not 

a party to a pole attachment agreement) 

or cable operator providing 

telecommunications services until 

February 8, 2001: 

(2) With respect to attachments to 

poles by any telecommunications carrier 

or cable operator providing 

telecommunications services, the 

maximum just and reasonable rate shall 

be the higher of the rate yielded by 

paragraphs (d)(2)(i) or (d)(2)(ii) of this 

section. 

(i) The following formula applies to 

the extent that it yields a rate higher 

than that yielded by the applicable 

formula in paragraph (d)(2)(ii) of this 

section: 

Rate = Space Factor × Cost 

Where Cost 

in Service Areas where the number of 

Attaching Entities is 5 = 0.66 × (Net Cost 

of a Bare Pole × Carrying Charge Rate) 

in Service Areas where the number of 

Attaching Entities is 4 = 0.56 × (Net Cost 

of a Bare Pole × Carrying Charge Rate) 

in Service Areas where the number of 

Attaching Entities is 3 = 0.44 × (Net Cost 

of a Bare Pole × Carrying Charge Rate) 

in Service Areas where the number of 

Attaching Entities is 2 = 0.31 × (Net Cost 

of a Bare Pole × Carrying Charge Rate) 

in Service Areas where the number of 

Attaching Entities is not a whole number 

= N × (Net Cost of a Bare Pole × Carrying 

Charge Rate), where N is interpolated 

from the cost allocator associated with 

the nearest whole numbers above and 

below the number of Attaching Entities. 

(ii) The following formula applies to 

the extent that it yields a rate higher 

than that yielded by the applicable 

formula in paragraph (d)(2)(i) of this 

section: 


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(3) The following formula shall apply 

to attachments to conduit by cable 

operators and telecommunications 

carriers: 

simplified as: 

(4) If no inner-duct is installed the 

fraction, ‘‘1 Duct divided by the No. of 

Inner-Ducts’’ is presumed to be 1⁄2. 

§ 1.1410 [Redesignated as § 1.1407] 

■ 16. Redesignate § 1.1410 as § 1.1407, 

and revise newly designated § 1.1407 to 

read as follows: 

§ 1.1407 Remedies. 

(a) If the Commission determines that 

the rate, term, or condition complained 

of is not just and reasonable, it may 

prescribe a just and reasonable rate, 

term, or condition and may: 

(1) Terminate the unjust and/or 

unreasonable rate, term, or condition; 

(2) Substitute in the pole attachment 

agreement the just and reasonable rate, 

term, or condition established by the 

Commission; and/or 

(3) Order a refund, or payment, if 

appropriate. The refund or payment will 

normally be the difference between the 

amount paid under the unjust and/or 

unreasonable rate, term, or condition 

and the amount that would have been 

paid under the rate, term, or condition 

established by the Commission, plus 

interest, consistent with the applicable 

statute of limitations. 

(b) If the Commission determines that 

access to a pole, duct, conduit, or rightof-way has been unlawfully denied or 

delayed, it may order that access be 

permitted within a specified time frame 

and in accordance with specified rates, 

terms, and conditions. 

§§ 1.1411 through 1.1415 [Removed] 

■ 17. Remove §§ 1.1411 through 1.1415. 

§ 1.1416 [Redesignated as § 1.1408] 

■ 18. Redesignate § 1.1416 as § 1.1408. 

§ 1.1417 [Redesignated as § 1.1409] 

■ 19. Redesignate § 1.1417 as § 1.1409, 

and amend newly designated § 1.1409 

by revising paragraph (a) and (c) to read 

as follows: 

§ 1.1409 Allocation of Unusable Space 

Costs. 

(a) With respect to the formula 

referenced in § 1.1406(d)(2), a utility 

shall apportion the cost of providing 

unusable space on a pole so that such 

apportionment equals two-thirds of the 

costs of providing unusable space that 

would be allocated to such entity under 

an equal apportionment of such costs 

among all attaching entities. 

* * * * * 

(c) Utilities may use the following 

rebuttable presumptive averages when 

calculating the number of attaching 

entities with respect to the formula 

referenced in § 1.1406(d)(2). For nonurbanized service areas (under 50,000 

population), a presumptive average 

number of attaching entities of three. 

For urbanized service areas (50,000 or 

higher population), a presumptive 

average number of attaching entities of 

five. If any part of the utility’s service 

area within the state has a designation 

of urbanized (50,000 or higher 

population) by the Bureau of Census, 

United States Department of Commerce, 

then all of that service area shall be 

designated as urbanized for purposes of 

determining the presumptive average 

number of attaching entities. 

* * * * * 

§ 1.1418 [Redesignated as § 1.1410] 

■ 20. Redesignate § 1.1418 as § 1.1410, 

and revise newly designated § 1.1410 to 

read as follows: 

§ 1.1410 Use of presumptions in 

calculating the space factor. 

With respect to the formulas 

referenced in § 1.1406(d)(1) and (d)(2), 

the space occupied by an attachment is 

presumed to be one foot. The amount of 

usable space is presumed to be 13.5 feet. 

The amount of unusable space is 

presumed to be 24 feet. The pole height 

is presumed to be 37.5 feet. These 

presumptions may be rebutted by either 

party. 

§ 1.1420 [Redesignated as § 1.1411] 

■ 21. Redesignate § 1.1420 as § 1.1411, 

and revise paragraph (d) and the 

introductory text of paragraph (i) to read 

as follows: 


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§ 1.1411 Timeline for access to utility 

poles. 

* * * * * 

(d) Estimate. Where a request for 

access is not denied, a utility shall 

present to a cable operator or 

telecommunications carrier an estimate 

of charges to perform all necessary 

make-ready work within 14 days of 

providing the response required by 

paragraph (c) of this section, or in the 

case where a prospective attacher’s 

contractor has performed a survey, 

within 14 days of receipt by the utility 

of such survey. 

(1) A utility may withdraw an 

outstanding estimate of charges to 

perform make-ready work beginning 14 

days after the estimate is presented. 

(2) A cable operator or 

telecommunications carrier may accept 

a valid estimate and make payment any 

time after receipt of an estimate but 

before the estimate is withdrawn. 

* * * * * 

(i) If a utility fails to respond as 

specified in paragraph (c) of this 

section, a cable operator or 

telecommunications carrier requesting 

attachment in the communications 

space may, as specified in § 1.1412, hire 

a contractor to complete a survey. If 

make-ready is not complete by the date 

specified in paragraph (e)(1)(ii) of this 

section, a cable operator or 

telecommunications carrier requesting 

attachment in the communications 

space may hire a contractor to complete 

the make-ready: 

* * * * * 

§ 1.1422 [Redesignated as 1.1412] 

■ 22. Redesignate § 1.1422 as § 1.1412, 

and amend newly designated § 1.1412 

by revising paragraphs (a) and (b) to 

read as follows: 

§ 1.1412 Contractors for survey and makeready. 

(a) A utility shall make available and 

keep up-to-date a reasonably sufficient 

list of contractors it authorizes to 

perform surveys and make-ready in the 

communications space on its utility 

poles in cases where the utility has 

failed to meet deadlines specified in 

§ 1.1411. 

(b) If a cable operator or 

telecommunications carrier hires a 

contractor for purposes specified in 

§ 1.1411, it shall choose from among a 

utility’s list of authorized contractors. 

* * * * * 

§§ 1.1424 [Redesignated as § 1.1413] 

■ 23. Redesignate § 1.1424 as § 1.1413. 

§ 1.1425 [Redesignated as § 1.1414] 

■ 24. Redesignate § 1.1425 as § 1.1414, 

and revise newly designated § 1.1414 to 

read as follows: 

§ 1.1414 Review period for pole 

attachment complaints. 

(a) Pole access complaints. Except in 

extraordinary circumstances, final 

action on a complaint where a cable 

television system operator or provider of 

telecommunications service claims that 

it has been denied access to a pole, duct, 

conduit, or right-of-way owned or 

controlled by a utility should be 

expected no later than 180 days from 

the date the complaint is filed with the 

Commission. The Enforcement Bureau 

shall have the discretion to pause the 

180-day review period in situations 

where actions outside the Enforcement 

Bureau’s control are responsible for 

delaying review of a pole access 

complaint. 

(b) Other pole attachment complaints. 

All other pole attachment complaints 

shall be governed by the review period 

in § 1.740. 

PART 6—ACCESS TO 

TELECOMMUNICATIONS SERVICE, 

TELECOMMUNICATIONS EQUIPMENT 

AND CUSTOMER PREMISES 

EQUIPMENT BY PERSONS WITH 

DISABILITIES 

■ 25. The authority citation for part 6 

continues to read as follows: 

Authority: 47 U.S.C. 151–154, 208, 255, 

and 303(r). 

■ 26. Revise § 6.15 to read as follows: 

§ 6.15 Generally. 

(a) All manufacturers of 

telecommunications equipment or 

customer premises equipment and all 

providers of telecommunications 

services, as defined under this subpart 

are subject to the enforcement 

provisions specified in the Act and the 

rules in this chapter. 

(b) For purposes of §§ 6.15–6.16, the 

term ‘‘manufacturers’’ shall denote 

manufacturers of telecommunications 

equipment or customer premises 

equipment and the term ‘‘providers’’ 

shall denote providers of 

telecommunications services. 

■ 27. Revise § 6.16 to read as follows: 

§ 6.16 Informal or formal complaints. 

Any person may file either a formal or 

informal complaint against a 

manufacturer or provider alleging 

violations of section 255 of the Act or 

this part subject to the enforcement 

requirements set forth in §§ 14.30 

through 14.38 of this chapter. 

§§ 6.17 through 6.23 [Removed] 

■ 28. Remove §§ 6.17 through 6.23. 

PART 7—ACCESS TO VOICEMAIL AND 

INTERACTIVE MENU SERVICES AND 

EQUIPMENT BY PEOPLE WITH 

DISABILITIES 

■ 29. The authority citation for part 7 

continues to read as follows: 

Authority: 47 U.S.C. 151–154, 208, 255, 

and 303(r). 

■ 30. Revise § 7.15 to read as follows: 

§ 7.15 Generally. 

(a) For purposes of §§ 7.15 through 

7.16, the term ‘‘manufacturers’’ shall 

denote any manufacturer of 

telecommunications equipment or 

customer premises equipment which 

performs a voicemail or interactive 

menu function. 

(b) All manufacturers of 

telecommunications equipment or 

customer premises equipment and all 

providers of voicemail and interactive 

menu services, as defined under this 

subpart, are subject to the enforcement 

provisions specified in the Act and the 

rules in this chapter. 

(c) The term ‘‘provider’’ shall denote 

any provider of voicemail or interactive 

menu service. 

■ 31. Revise § 7.16 to read as follows: 

§ 7.16 Informal or formal complaints. 

Any person may file either a formal or 

informal complaint against a 

manufacturer or provider alleging 

violations of section 255 or this part 

subject to the enforcement requirements 

set forth in §§ 14.30 through 14.38 of 

this chapter. 

§§ 7.17 through 7.23 [Removed] 

■ 32. Remove §§ 7.17 through 7.23. 

* * * * * 

PART 14—ACCESS TO ADVANCED 

COMMUNICATIONS SERVICES AND 

EQUIPMENT BY PEOPLE WITH 

DISABILITIES 

■ 33. The authority citation for part 14 

continues to read as follows: 

Authority: 47 U.S.C. 151–154, 255, 303, 

403, 503, 617, 618, 619 unless otherwise 

noted. 

■ 34. Amend § 14.38 by revising the 

section heading and the introductory 

text to read as follows: 

§ 14.38 Formal complaints. 

Formal complaint proceedings 

alleging a violation of 47 U.S.C. 255, 

617, or 619, or parts 6, 7, or 14 of this 

chapter, shall be governed by the formal 


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complaint rules in subpart E of part 1, 

§§ 1.7201.740. 

* * * * * 

§§ 14.39 through 14.52 [Removed] 

■ 35. Remove §§ 14.39 through 14.52. 

PART 20—COMMERCIAL MOBILE 

SERVICES 

■ 36. The authority citation to part 20 

continues to read as follows: 

Authority: 47 U.S.C. 151, 152(a) 154(i), 

157, 160, 201, 214, 222, 251(e), 301, 302, 303, 

303(b), 303(r), 307, 307(a), 309, 309(j)(3), 316, 

316(a), 332, 610, 615, 615a, 615b, 615c, 

unless otherwise noted. 

■ 37. Amend § 20.18 by revising 

paragraph (m)(4)(vii) to read as follows: 

§ 20.18 911 Service. 

* * * * * 

(m) * * * 

(4) * * * 

(vii) A copy of the certification must 

be served on the PSAP in accordance 

with § 1.47 of this chapter. The PSAP 

may challenge in writing the accuracy of 

the carrier’s certification and shall serve 

a copy of such challenge on the carrier. 

See §§ 1.45 and 1.47 and §§ 1.720 

through 1.740 of this chapter. 

* * * * * 

PART 64—MISCELLANEOUS RULES 

RELATING TO COMMON CARRIERS 

■ 38. The authority citation for part 64 

continues to read as follows: 

Authority: 47 U.S.C. 154, 201, 202, 218, 

222, 225, 226, 227, 228, 251(e), 254(k), 

403(b)(2)(B), (c), 616, 620, 1401–1473, unless 

otherwise noted. 

■ 39. Amend § 64.1160 by revising 

paragraph (e) to read as follows: 

§ 64.1160 Absolution procedures where 

the subscriber has not paid charges. 

* * * * * 

(e) The Federal Communications 

Commission will not adjudicate a 

complaint filed pursuant to §§ 1.719 or 

§§ 1.720–1.740 of this chapter, involving 

an alleged unauthorized change, as 

defined by § 64.1100(e), while a 

complaint based on the same set of facts 

is pending with a state commission. 

* * * * * 

■ 40. Amend § 64.6217 by revising 

paragraph (c) to read as follows: 

§ 64.6217 Complaints. 

* * * * * 

(c) Formal complaints. Formal 

complaints against an NDBEDP certified 

program may be filed in the form and 

in the manner prescribed under §§ 1.720 

through 1.740 of this chapter. 

Commission staff may grant waivers of, 

or exceptions to, particular 

requirements under §§ 1.720 through 

1.740 of this chapter for good cause 

shown; provided, however, that such 

waiver authority may not be exercised 

in a manner that relieves, or has the 

effect of relieving, a complainant of the 

obligation under §§ 1.721 and 1.722 of 

this chapter to allege facts which, if 

true, are sufficient to constitute a 

violation or violations of section 719 of 

the Communications Act or this subpart. 

* * * * * 

PART 68—CONNECTION OF 

TERMINAL EQUIPMENT TO THE 

TELEPHONE NETWORK 

■ 41. The authority citation for part 68 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 610. 

■ 42. Amend § 68.105 by revising 

paragraph (d)(3) to read as follows: 

§ 68.105 Minimum point of entry (MPOE) 

and demarcation point. 

* * * * * 

(d) * * * 

(3) In any multiunit premises where 

the demarcation point is not already at 

the MPOE, the provider of wireline 

telecommunications services must 

comply with a request from the 

premises owner to relocate the 

demarcation point to the MPOE. The 

provider of wireline 

telecommunications services must 

negotiate terms in good faith and 

complete the negotiations within fortyfive days from said request. Premises 

owners may file complaints with the 

Commission for resolution of allegations 

of bad faith bargaining by provider of 

wireline telecommunications services. 

See 47 U.S.C. 208, 47 CFR 1.720 through 

1.740. 

* * * * * 

[FR Doc. 2018–18689 Filed 8–31–18; 8:45 am] 

BILLING CODE 6712–01–P 


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