Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41433

EFFECTIVE DATE: August 4, 1998.

FOR FURTHER INFORMATION CONTACT:

Martha Caswell, Office of

Governmentwide Policy, GSA,

telephone 202–501–3828.

SUPPLEMENTARY INFORMATION:

A. Temporary Regulation H–28

published at 61 FR 41352, August 8,

1996, and extended by the notice at 62

FR 68217 on December 31, 1997, is

cancelled.

B. In the absence of a known Federal

need, agencies should transfer IT

equipment directly to eligible schools

and nonprofit organizations in

accordance with the provisions of

Executive Order 12999, Educational

Technology: Ensuring Opportunity for

All Children in the Next Century.

Agencies must report such transfers to

GSA as part of the annual Non-Federal

Recipients Report.

C. The General Services

Administration (GSA) has determined

that this rule is not a significant

regulatory action for the purposes of

Executive Order 12866 of September 30,

1993.

D. Regulatory Flexibility Act

This rule is not required to be

published in the Federal Register for

public comment. Therefore, the

Regulatory Flexibility Act does not

apply.

E. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the proposed

revisions do not impose recordkeeping

or information collection requirements,

or the collection of information from

offerors, contractors, or members of the

public which require the approval of

OMB under 44 U.S.C. 3501–3520. This

rule also is exempt from Congressional

review prescribed under 5 U.S.C. 801

since it relates solely to agency

management and personnel.

List of Subjects in 41 CFR Part 101–43

Archives and records, Computer

technology, Information technology,

Government procurement, Property

management, Records Management, and

Telecommunications.

Therefore, as set forth in the preamble

41 CFR part 101–43 is amended as

follows:

PART 101–43—UTILIZATION OF

PERSONAL PROPERTY

1. The authority citation for part 101–

43 continues to read as follows:

Authority: Sec. 205(c), 63 Stat. 390; (40

U.S.C. 486(c)).

2. Section 101–43.000 is revised to

read as follows:

§ 101–43.000 Scope of part

This part prescribes the policies and

methods governing the economic and

efficient utilization of personal property

located within and outside the United

States, the District of Columbia, the

Commonwealth of Puerto Rico,

American Samoa, Guam, the

Commonwealth of the Northern Mariana

Islands, the Trust Territory of the Pacific

Islands, and the Virgin Islands.

Additional guidelines regarding

reutilization of hazardous materials are

prescribed in part 101–42.

§§ 101–43.600–101–43.603 (Subpart 101–

43.6)—[Reserved]

3. Subpart 101–43.6 consisting of

§§ 101–43.600 through 101–43.603, is

removed and reserved.

Subpart 101–43.48—Exhibits

4. Section 101–43.4801 is amended by

removing paragraph (c), redesignating

paragraphs (d) and (e) as paragraphs (c)

and (d) respectively, and by adding in

numerical order in the redesignated

paragraph (c) table, the following entry:

§ 101–43.4801 Excess personal property reporting requirements.

* * * * * * *

70 .............. All .............................................................. Information technology equipment.

* * * * * * *

Dated: July 7, 1998.

David J. Barram,

Administrator of General Services.

[FR Doc. 98–20693 Filed 8–3–98; 8:45 am]

BILLING CODE 6820–24–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 1

[CC Docket No. 96–238; FCC 98–154]

Procedures to Be Followed When

Formal Complaints are Filed Against

Common Carriers

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The Commission adopted a

Second Report and Order that created

an Accelerated Docket that provides for

a decision, within 60 days, of formal

complaint proceedings that are accepted

onto the Accelerated Docket. The

Accelerated Docket will stimulate the

growth of competition for

telecommunications services by

ensuring the prompt resolution of

disputes that may arise between market

participants as well as allow for the

prompt disposal of complaints that are

without substantial merit.

DATES: Effective October 5, 1998, except

for §§ 1.115, 1.721, 1.724, 1.726, 1.729,

1.730 and 1.733, which contain

information collection requirements that

are not effective until approved by the

Office of Management and Budget. The

FCC will publish a document in the

Federal Register announcing the

effective date for those sections. Written

comments by the public on the

information collections are due

September 3, 1998.

FOR FURTHER INFORMATION CONTACT:

Dorothy Attwood or Frank Lamancusa

(202) 418–0700. For additional

information concerning the information

collections contained in this Report and

Order contact Judy Boley at 202–418–

0214, or via the Internet at

jboley@fcc.gov. Direct all comments on

the information collections to Timothy

Fain, Office of Management and Budget,

Room 10236 NEOB, Washington, DC

20503, (202) 395–3561 or via internet at

fain—t@al.eop.gov, and Judy Boley,

Federal Communications Commission,

Room 234, 1919 M Street, NW,
41434 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

Washington, DC 20554 or via internet to

jboley@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Second

Report and Order in CC Docket No. 96–

238, adopted on July 9, 1998, and

released on July 14, 1998. The full text

of the Second Report and Order is

available for inspection and copying

during normal business hours in the

FCC Reference Center, Room 239, 1919

M Street, NW., Washington DC. The

complete text of this decision may also

be purchased from the Commission’s

duplicating contractor, International

Transcription Services, 1231 20th Street

NW, Washington DC 20036, (202) 857–

3800.

This Report and Order contains

modified information collections subject

to the Paperwork Reduction Act of 1995

(PRA). It has been submitted to the

Office of Management and Budget

(OMB) for review under the PRA. The

Commission is requesting emergency

OMB review of the information

collections with approval by September

11, 1998. Persons wishing to comment

on this information collection should

submit comments on or before

September 11, 1998.

Paperwork Reduction Act

This Second Report and Order

contains modified information

collections. The Commission, as part of

its continuing effort to reduce

paperwork burdens, invites the general

public to comment on the information

collections contained in this Order, as

required by the Paperwork Reduction

Act of 1995, Pub. L. 104–12. The

Commission has requested emergency

OMB review of the collections with an

approval by September 11, 1998.

Persons wishing to comment on this

information collection should submit

comments on or before September 11,

1998. Comments should address: (1)

Whether the new or modified collection

of information is necessary for the

proper performance of the functions of

the Commission, including whether the

information shall practical utility; (b)

the accuracy of the Commission’s

burden estimates; (c) ways to enhance

the quality, utility, and clarity of the

information collected; and (d) ways to

minimize the burden of the collection of

information on the respondents

including the use of automated

collection techniques or other forms of

information technology.

OMB Approval Number: 3060–0411.

Title: Amendment of Rules Governing

Procedures to Be Followed When

Formal Complaints are Filed Against

Common Carriers.

Form No.: N/A.

Type of Review: Revision.

Respondents: Individuals or

households; businesses or other for

profit, including small business; not-forprofit institutions; state, local or tribal

government.

Section/title Number of respondents

Est. time per

respondent

(hours)

Total annual

burden

(hours)

a. Requests for Inclusion on Accelerated Docket ...................................................................... 300 0.5 150

b. Pleadings ................................................................................................................................ 80 4 320

c. Automatic Document Production Requirements .................................................................... 80 20 1,600

d. Discovery ................................................................................................................................ 80 20 1,600

e. Status Conference ................................................................................................................. 80 3 240

f. Proposed Findings of Fact and Conclusions of Law .............................................................. 80 5 400

g. Minitrials Submissions ............................................................................................................ 80 3 240

h. Minitrial Transcript .................................................................................................................. 80 10 800

i. Applications for Review of Staff Decisions ............................................................................. 20 15 300

Total Annual Burden: 5,650 hours (for

new and/or modified collections only).

Estimated Costs Per Respondent:

$150.00 for each respondent that files a

complaint against a common carrier that

is accepted onto the Accelerated Docket;

it is estimated that 40 complaints will

be accepted onto the Accelerated Docket

in the next year.

Needs and Uses: The information has

been and is currently being used by the

Commission to determine the

sufficiency of complaints and to resolve

the merits of disputes between the

parties.

The Second Report and Order

requires any party to a complaint or

prospective complaint that wishes to be

on the new docket to transmit to the

Chief of the Common Carrier Bureau’s

Enforcement Division a request seeking

the inclusion of its dispute on the

Accelerated Docket. If the dispute for

which inclusion on the docket is sought

is the subject of a pending complaint,

the request must be in writing,

transmitted by facsimile or by hand,

with a copy to the other parties by the

same mode of transmission. When a

complainant has been admitted onto the

Accelerated Docket before filing its

complaint, it is required to file with its

complaint a letter indicating that the

complaint has been accepted for

treatment on the new docket.

The Second Report and Order

requires the complaint to include a

detailed explanation of the alleged

violation; answers are required to set

out fully the nature of any defense, and

to respond specifically to all material

allegations of the complaint. The rules

dispense, in Accelerated Docket

proceedings, with the requirement that

parties provide extensive legal analysis,

proposed findings of fact and

conclusions of law with their initial

pleadings and with the requirement that

they support their initial pleadings with

affidavits. Defendants are allowed ten

days to file an answer.

The Second Report and Order

requires copies of documents within a

party’s possession, custody or control

that are likely to bear significantly on

the issues in a complaint proceeding to

be produced with that party’s

complaint, answer or the reply

statements in its pre-status-conference

filing, if applicable. The rules adopt a

production standard that is narrower

than all relevant documents with the

goal of reducing the number of

documents subject to production.

The Second Report and Order

requires that parties seeking discovery

beyond that available by the automatic

document production request such

additional discovery in the filing that

they are required to make two days

before the initial status conference.

These requests may include, and

Commission staff may order, additional

document production, depositions of

persons with relevant knowledge and/or

responses to interrogatories.

Additionally, any party that intends to

rely on expert testimony must identify

its expert and provide a brief expert

statement.

The Second Report and Order

requires parties to submit to the staff,

two business days, before the initial

status conference, a listing of the
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41435

stipulations and the discovery issues on

which they have reached agreement. If

necessary, parties are permitted to

submit separate statements of disputed

factual and legal issues. Where

appropriate, a complainant’s pre-statusconference filing may respond to any

affirmative defenses that the defendant

may have raised in its answer.

The Second Report and Order further

requires parties to submit proposed

findings of fact and conclusions of law

no less than two days before the

beginning of the minitrial. Parties may,

but are not required to, submit revised

proposed findings of fact and

conclusions of law within three days

after the conclusion of the minitrial.

Separate briefs are not permitted in

Accelerated Docket proceedings.

Under the Second Report and Order,

parties to Accelerated Docket

proceedings are required to present

evidence and argument in support of

their cases to Commission staff during a

hearing-type proceeding. Three days

before the minitrial, parties are required

to exchange exhibits that they may

introduce during the proceeding and

lists of witnesses whom they may call.

The Second Report and Order

requires parties to Accelerated Docket

proceedings to arrange for the

preparation of, and file with the

Commission three days after the

minitrial, a stenographic transcript of

the minitrial proceedings.

Finally, the Second Report and Order

requires parties to Accelerated Docket

proceedings that wish to obtain review

of the staff’s decision or recommended

decision to file their application for

review or challenge to the initial

decision with the Commission within

15 days of the release of the staff

decision.

Summary of Second Report and Order

I. Introduction

1. In enacting the

Telecommunications Act of 1996 (the

‘‘1996 Act’’), Congress stressed the

importance of establishing a ‘‘procompetitive, deregulatory’’ national

policy framework for the

telecommunications industry. In

furtherance of that goal, we issued, in

this docket’s First Report and Order, 63

FR 990 (January 7, 1998), revised rules

governing formal complaints filed with

the Commission that allege unlawful

conduct by telecommunications

carriers. These new rules grew out of the

shortened deadlines for resolution of

certain categories of complaints

imposed in the 1996 Act, and they had

as their goal the prompt resolution of all

complaints in order to ‘‘reduce

impediments to robust competition in

all telecommunications markets.’’

2. On November 25, 1997, a Public

Notice, 62 FR 66321 (December 18,

1997), issued seeking further comment

on certain issues raised in this

proceeding. Specifically, the Public

Notice sought comment on the creation

of an ‘‘Accelerated Docket’’ for

complaint adjudication that would (1)

provide for the presentation of live

evidence and argument in a hearingtype proceeding and (2) operate on a 60-

day time frame, or on some other

schedule that is more compressed than

that for a formal complaint proceeding

conducted under the new procedures

set out in the First Report & Order.

3. In this Second Report and Order,

we adopt rules that will govern the

Accelerated Docket. Briefly stated, the

new complaint procedures that we

adopt today provide for the decision,

within 60 days, of formal complaint

proceedings that are accepted onto the

Accelerated Docket, with the additional

possibility of en banc hearing, before

the full Commission, of applications for

review of the staff decision. In order to

expedite the complaint process in this

manner, we require that parties seeking

to place their disputes on the

Accelerated Docket first meet for prefiling settlement discussions supervised

by Commission staff. Once a complaint

has been filed and accepted onto the

Accelerated Docket the defendant will

have ten days to file its answer. Both the

complainant and the defendant will be

required to serve on their opponents,

with their respective initial pleadings,

those documents that are likely to bear

on the issues in the proceeding and a

list of individuals likely to have relevant

knowledge. Ten days after the answer is

filed, Commission staff will hold an

initial status conference, at which the

parties may request further discovery,

including a limited number of

depositions, which we expect to play an

important role in Accelerated Docket

proceedings. Between 40 and 45 days

after the filing of a complaint, a

minitrial will be held at which the

parties will have the opportunity to

present evidence and make argument in

support of their respective positions.

Commission staff shall issue its decision

no more than sixty days after the matter

is placed on the Accelerated Docket.

Review by the full Commission will be

available through an application for

review. In appropriate cases, the

Commission may hold en banc hearings

to decide applications for review of

Accelerated Docket proceedings.

4. As discussed below, the rules that

we adopt herein modify certain

deadlines and procedural requirements

for complaint proceedings accepted

onto the Accelerated Docket. In general,

the new rules will govern admission

onto the Accelerated Docket, procedural

and scheduling aspects of Accelerated

Docket proceedings, the breadth of

discovery available in such proceedings,

and the hearing-type procedure in

which Accelerated Docket proceedings

typically will culminate. To the extent

that the rules set out in this Second

Report & Order do not specifically cover

some procedural aspect of a proceeding

on the Accelerated Docket, the rules

promulgated with the First Report &

Order will govern.

A. The Need for, and Benefits of, the

Accelerated Docket

5. The Public Notice sought comment

on whether there existed a need for the

hearing-type process and the shortened

deadline for complaint adjudication that

would be available with the Accelerated

Docket. Additionally, the Public Notice

sought comment on how the

Commission could work cooperatively

with the states to ensure that the

interests of both the Commission and

the states were protected.

6. We believe that important benefits

will flow from the expedition of the

complaint process in cases appropriate

for inclusion on the Accelerated Docket.

The Accelerated Docket will provide

prompt resolution of carrier-related

disputes and it frequently will allow

carriers to obtain more extensive

discovery from their opponents than has

been routinely available in formal

complaint proceedings. Additionally, it

will provide for the full and effective

presentation of each party’s case in a

hearing-type proceeding. The

Accelerated Docket will minimize the

opportunity for carriers to continue to

engage in anti-competitive practices

because the lawfulness of those

practices will be subject to expedited

review under our new procedures, and

market entrants will be able to obtain

adjudication of their complaints much

more quickly than in the past. We

believe, therefore, that the Accelerated

Docket will facilitate the market’s

continuing movement toward the full

competition that Congress envisioned

when it enacted the 1996 Act.

7. In addition to the benefits that we

envision flowing to competitive market

entrants, we believe that in certain

instances the incumbent local carriers

also are likely to enjoy a substantial

benefit from the new docket. The

Accelerated Docket will provide the

incumbent carriers with a means of

obtaining the expedited disposal of

certain complaints filed against them.

On balance, therefore, we believe that
41436 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

any additional burdens that may be

imposed on parties by the Accelerated

Docket are more than offset by the

resulting benefits, both to the carriers

themselves and to the public.

8. We are unpersuaded by the various

commenters’ criticisms of the

Accelerated Docket. The proposed

timeframe for resolving complaints on

the Accelerated Docket is not

unreasonable or inconsistent with due

process. As with the new rules issued in

the First Report & Order, parties to

Accelerated Docket proceedings will

have full notice of their opponents’

contentions well before the 60-day

period for conclusion of the proceeding

begins to run. During the mandatory

pre-filing settlement discussions, parties

will fully explore, under the supervision

of Commission staff, the facts

surrounding, and legal bases for, each

side’s claims and defenses.

Furthermore, matters not reasonably

susceptible to resolution within the

sixty-day framework we have

established, whether due to factual or

legal complexity or any other reason,

will not be accepted onto the

Accelerated Docket.

9. We also reject the argument that we

should refrain from issuing rules for the

Accelerated Docket until we have

accumulated additional experience

under the First Report & Order. We do

not view the new docket as something

that merely builds, with minor

modifications, on the generally

applicable formal complaint process;

rather, we believe that it will give rise

to substantial benefits independent of

the current process. Extensive

examination of proceedings under the

general rules, therefore, is not

necessarily a prerequisite to setting up

the Accelerated Docket. Moreover, we

will continue to monitor the experience

with both sets of rules. This will allow

us to make further improvements in the

future as it appears to be appropriate.

B. Subject Matter for the Accelerated

Docket

10. Under the rules that we adopt

today, we confer on the staff

administering the Accelerated Docket

broad discretion to determine which

formal complaints relating to common

carrier services it will accept onto the

docket. In exercising this discretion, the

Bureau should consider several different

factors. First among these is the extent

to which it appears that the parties to

the dispute have exhausted the

reasonable opportunities for settlement

during the supervised pre-filing

settlement discussions.

11. Second, to the extent that the

expedited resolution of a particular

dispute appears likely to advance

competition in the relevant

telecommunications markets, it may be

appropriate for inclusion on the

Accelerated Docket.

12. Third, the Bureau staff shall also

consider whether the issues presented

by a particular proceeding appear to be

suited for decision under the constraints

imposed by the Accelerated Docket. For

example, if the dispute appears to

involve more distinct questions than

may be litigated effectively under the

expedited procedures, staff would be

within its discretion to refuse the case.

Another factor for consideration in this

category likely will be whether the

complaining party has chosen to

bifurcate its liability claims from its

damages claims. Similarly, if it appears

that factual discovery will be so

extraordinarily complex and timeconsuming that it cannot effectively be

conducted under the compressed

schedule of the Accelerated Docket, the

staff administering the docket also

would be within its discretion to

decline the case.

13. Fourth, in determining whether to

admit a dispute to the Accelerated

Docket, staff shall consider any

suggestions that the complaint fails to

state a cognizable claim or raises issues

outside of the Commission’s established

jurisdiction.

14. Fifth, the staff administering the

Accelerated Docket also has discretion

to refuse a complaint proceeding where

it appears that one party would be

unreasonably limited in its ability

effectively to conduct discovery or

prepare its case because of an

overwhelming resource advantage of the

opposing party.

15. Beyond the factors listed above,

we expect that, in accepting matters

onto the Accelerated Docket, the Bureau

staff will consider such other issues as

it deems appropriate and conducive to

the prompt and fair adjudication of the

complaint proceedings before it.

C. Jurisdictional Considerations

16. Nothing in this report and order

should be interpreted to expand the

Commission’s jurisdiction to adjudicate

disputes under the Act. We also

recognize that the Eighth Circuit’s

decision on review of our Local

Competition Order places limits on the

Commission’s authority in section 208

enforcement proceedings. Questions of

our jurisdiction to adjudicate individual

complaint proceedings will be decided

on a case-by-case basis as they arise.

Furthermore, we are hopeful that

contact and careful coordination with

the relevant state commissions will

reduce the potential for state concerns

about jurisdictional issues. Accordingly,

we direct that the staff administering the

Accelerated Docket take all appropriate

steps to inform the appropriate state

utility commissions where it appears

that such action is appropriate.

II. Pre-Filing Requirements

17. The Public Notice sought

comment on whether it would be useful

for parties on the Accelerated Docket to

participate in staff supervised

settlement discussions before a

complaint was filed. The notice asked

whether one criterion for acceptance

onto the Accelerated Docket should be

adequate notice, through these pre-filing

discussions, of the issues a complainant

would raise in its complaint. It asked

whether such supervised pre-filing

settlement discussions would implicate

the Commission’s ex parte rules, and it

sought suggestions on how to protect

confidential or proprietary information

that the parties might exchange during

these discussions. Additionally, the

Public Notice sought comment on which

parties to a dispute could seek inclusion

on the Accelerated Docket.

A. Staff Supervision of Pre-Filing

Discussions

18. We believe that requiring

supervision of the parties’ pre-filing

discussions will provide substantial

benefits in the Accelerated Docket. We

believe that one way in which the

Accelerated Docket will speed the

development of competition is by

facilitating the informal resolution of

many disputes before complaints are

even filed. Involvement of Commission

staff in the parties’ pre-filing

discussions will serve to make those

talks run more smoothly and be more

productive. Staff involvement in the

discussions also may help the parties to

focus their dispute in a way that will be

most conducive to the short schedule of

the Accelerated Docket if a complaint

ultimately is filed. We are unpersuaded

by the argument that staff participation

in settlement discussions will

unnecessarily prolong that phase of

proceedings. Our commitment to the

prompt adjudication of disputes

affecting competition extends to the prefiling stage of proceedings. We are

confident that requiring staff

involvement in the mandatory pre-filing

settlement discussions will not slow

this phase of proceedings.

19. We do not believe that it would

be improper for the individual staff

member who conducts the pre-filing

discussions to handle the matter after a

complaint has been filed. Federal courts

repeatedly have held that a judge’s

participation in settlement discussions,
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41437

by itself, provides no basis for recusing

the judge from deciding the case; it does

not create the kind of personal or extrajudicial knowledge that requires

disqualification. Only when a judge

conducts himself in a manner that may

raise questions about his impartiality is

there proper ground for recusal. We see

no reason to adopt a stricter rule than

that of the federal courts on this issue.

B. Procedure for Acceptance to the

Accelerated Docket

20. We conclude that the Accelerated

Docket will be most effective if either

party to a dispute may request inclusion

on it. Requiring mutual agreement of the

parties, as suggested by some

commenters, would give either party

veto power over the process and

substantially reduce the docket’s

effectiveness at stimulating a

competitive environment. However, we

believe that the ends of the Accelerated

Docket would not be well served if the

staff had the discretion to place a

proceeding on the docket absent a

request from at least one party.

21. A prospective complainant who

wishes to have its dispute handled on

the Accelerated Docket shall contact the

Bureau either by phone or in writing to

seek assistance in reaching a negotiated

resolution to the matter. If it appears

from the preliminary information

supplied by the prospective

complainant that the dispute may be

appropriate for handling under the

procedures that we set out today, the

staff will schedule the appropriate prefiling settlement talks. Based on the

progress of these negotiations, the

nature of the dispute as revealed during

the discussions, and other

considerations, including those outlined

above, Commission staff will determine

whether the matter is appropriate for

Accelerated Docket treatment. Once the

staff determines that a dispute is

appropriate for the Accelerated Docket

and if the parties remain unable to

resolve their differences during the

supervised settlement discussions, the

complainant shall submit with its

complaint a letter indicating that it has

gained acceptance onto the docket. So

that the staff immediately may begin

work on the matter, a complainant shall,

at the time it files its complaint, serve

a copy on the staff who supervised the

settlement talks. Such a complaint, once

it is filed and accepted onto the

Accelerated Docket, will be handled by

the Bureau under the rules set out

herein.

22. As some commenters recommend,

we believe that it is also important that

defendants be able to request that their

proceeding be included on the

Accelerated Docket. We therefore adopt

a rule under which a defendant may

seek inclusion on the Accelerated

Docket by contacting the Bureau no

more than five days after receiving

service of a complaint. In order to

comply with our ex parte rules, such

contact shall be by a facsimile or handdelivered letter of which a copy also is

transmitted in the same manner to the

complainant. A defendant seeking

admission to the Accelerated Docket

will be required to file its answer within

10 days of receiving service of the

complaint, as required by this Second

Report and Order. Within two business

days of a defendant’s request letter, the

determination will be made whether to

grant the request and accept the

proceeding onto the Accelerated Docket.

If it appears that the parties have not

conducted sufficient pre-filing

settlement discussions, the staff may

schedule supervised settlement talks, as

discussed above. If appropriate, the

progress of the matter after the filing of

the answer may be postponed during

these discussions. Once a proceeding

has been accepted onto the Accelerated

Docket at the defendant’s request, the

staff will also set a schedule for both

sides’ production of documents and the

remainder of the proceeding. After the

staff has scheduled the production of

documents, matters accepted onto the

docket at a defendant’s request will

proceed according to the schedule

otherwise applicable to Accelerated

Docket proceedings.

23. It appears that certain complaints

already pending in the Bureau’s

Enforcement Division may benefit from,

and be appropriate for, the expedited

procedures of the new docket.

Accordingly, during the thirty days

following the effective date of these

rules, either party to a complaint

proceeding then pending before the

Bureau’s Enforcement Division and in

which an answer previously has been

served, or is past due, may contact the

staff administering the Accelerated

Docket to request inclusion of the matter

on the docket. A party making such a

request shall do so by facsimile or handdelivered letter of which a copy is sent

contemporaneously to the opposing

party or parties by the same mode of

transmission.

C. Ex Parte and Confidentiality Issues

24. After reviewing the matter, we

believe that staff involvement in the prefiling discussions poses no potential for

a prohibited ex parte contact. Our ex

parte rules restrict the actions of parties

to complaint proceedings only after a

complaint has been filed. Typically,

contacts between a single party and

Commission staff under these rules will

occur before the filing of a complaint

and therefore will not implicate our

rules. We believe that the main potential

for ex parte contact that these rules

create is the situation in which a

defendant requests the inclusion of its

proceeding on the Accelerated Docket.

As we note above, however, such

requests must be made by letter, a copy

of which shall be provided to the

complainant at the same time and by the

same mode of transmission as used for

the Commission staff. This will pose no

danger of an improper ex parte contact.

25. In the event that parties engaged

in the required supervised settlement

discussions should have occasion to

exchange confidential or proprietary

documents, they may negotiate a

confidentiality agreement that is

acceptable to both sides. If the parties

are unable to reach agreement on a

confidentiality agreement, they shall be

governed by 47 CFR 1.731.

III. Pleading Requirements

26. The Public Notice noted the new

pleading requirements under the First

Report & Order, and stated that these

requirements likely would also apply to

Accelerated Docket proceedings. It

requested comment on the

reasonableness of requiring that the

defendant’s answer be filed within

seven calendar days of the complaint in

order to accommodate the expedited

nature of the new docket.

A. Content Requirements for Pleadings

27. After review and careful

consideration of the comments on this

topic, we have concluded that it is

appropriate to modify slightly the

content requirements for initial

pleadings on the Accelerated Docket. As

discussed in the First Report & Order,

we believe that a full presentation, by

both parties, of the relevant facts will

‘‘improve the utility and content of

pleadings’’ and help to ‘‘speed

resolution of’’ complaints. We also

believe, however, that the key to the

success of the Accelerated Docket will

be its ability to move the parties to

narrow, focused issues as quickly as

possible so that evidence on those

issues may be presented at the minitrial.

Given the opportunity for parties to

present evidence at the minitrials, we

are less concerned with the formal

presentation of evidence through

affidavits accompanying the pleadings

than we are with having the parties

promptly reach issue. Thus, as set out

in 47 CFR 1.721(a)(5), promulgated with

the First Report & Order, the complaint:

shall include a detailed explanation of the

manner and time period in which a
41438 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

defendant has allegedly violated the Act,

Commission order, or Commission rule in

question, including a full identification or

description of the communications,

transmissions, services, or other carrier

conduct complained of and the nature of any

injury allegedly sustained by the

complainant.

Similarly, 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.’’ As discussed at greater

length below, initial pleadings on the

Accelerated Docket also shall include

that portion of the information

designation discussed in the First

Report & Order which lists individuals

believed to have firsthand knowledge of

the facts alleged with particularity in

the pleadings.

28. Given the relatively rapid pace of

the Accelerated Docket, we have

decided to dispense with certain

pleading requirements set out in the

First Report & Order. First, we will not

require that parties to Accelerated

Docket proceedings provide extensive

legal analysis, proposed findings of fact

and conclusions of law with their initial

pleadings. Rather, parties will be

required to submit proposed findings of

fact and conclusions of law shortly

before the minitrial that typically will

take place in proceedings on this

docket. Similarly, during this minitrial,

parties will have the opportunity to

present legal argument regarding their

claims and defenses, and we therefore

believe that this material may be

omitted from the initial pleadings

without substantially slowing down the

process. We emphasize, however, that

our decision not to require extensive

legal analysis should not be interpreted

as sanctioning notice-pleading or a

similar omission of the full factual and

legal basis for a party’s pleadings.

Rather, we expect that the complaint

and answer will fully set out the facts

and legal theories on which the parties

premise their claims and defenses.

29. Additionally, we have decided to

dispense with the requirement that

parties to Accelerated Docket

proceedings support their initial

pleadings with affidavits, as required in

47 CFR 1.721(a)(5), (a)(11) and 1.724(g).

We believe that the opportunity to

present live testimony at the minitrial

and the more extensive discovery

available on the Accelerated Docket will

render unnecessary the requirement that

parties support their pleadings with

affidavits. We have also decided to

dispense, in Accelerated Docket

proceedings, with the requirement that

parties include in their information

designations a description of all relevant

documents in their possession. As we

discuss below, parties will be required

automatically to produce with their

initial pleadings those documents that

bear the appropriate relevance

relationship with the issues in the

proceeding.

B. Timing of the Answer

30. After consideration of the

comments regarding the timing of the

answer, we have concluded that an

appropriate answer period for the

Accelerated Docket is ten days. Thus, a

defendant’s answer, as well as the

discovery documents subject to

automatic production discussed below,

will be due ten calendar days after the

defendant receives service of a

complaint on the Accelerated Docket.

As noted in the First Report & Order,

defendants will have substantial

advance notice of the facts and legal

theories underlying a complaint from

the pre-filing settlement discussions

that are now required in all complaint

proceedings.

31. Notwithstanding the criticisms

that several commenters level at the

short answer period proposed in the

Public Notice, we strongly believe that

the ten-day period we have adopted is

appropriate. First, we note that the Act

expressly grants the Commission broad

discretion to conduct its ‘‘proceedings

in such manner as will best conduce to

the proper dispatch of business and to

the ends of justice.’’ Courts applying

this language in reviewing the

Commission’s procedural rules regularly

have recognized the Commission’s wide

authority in questions of its own

procedures. Thus, in FCC v. Schreiber,

113 U.S. 279, 290 (1965), the Court

noted that the Commission ‘‘should be

free to fashion (its) own rules of

procedure and to pursue methods of

inquiry capable of permitting (it) to

discharge (its) multitudinous duties.’’ In

Florida Cellular Mobile

Communications Corp. v. FCC, 28 F.3d

191, 198 (D.C. Cir. 1994), the court

stated, in the context of a licensing

dispute, that there ‘‘can be no doubt of

the FCC’s authority to impose strict

procedural rules.’’

32. Apart from complying with the

relevant statute, the primary limitation

on agency procedures is that they must

comply with the requirements of due

process. Through the supervised prefiling settlement discussions, potential

defendants will have full notice of the

likely claims against them substantially

in advance of the filing of a complaint.

We believe that, when combined with

this pre-filing period, the ten-day

answer period comports with the

requirements of due process. By

diligently reviewing their records and

conducting the appropriate interviews

both before and after the complaint is

filed, defendants should have ample

opportunity to gather the information

necessary both to file their answer and

to produce the documents that, as we

discuss below, must be served with it.

We recognize that an answer period of

this short duration will put defendants

and their counsel to a greater burden

than may exist under the 20-day answer

period in the more generally applicable

rules. However, defendants in

Accelerated Docket proceedings will be

required to assemble substantially less

information before filing their answer

than is required under the rules set out

in the First Report & Order. Thus,

Accelerated Docket defendants will not

be required to prepare proposed

findings of fact and conclusions of law

or affidavits regarding the facts pleaded

in their answers. Nor will they be

required to create the index of relevant

documents required under the First

Report & Order.

33. Due process analysis focuses on

whether a procedural limitation is so

severe that a party is prevented from

preparing an effective defense. We are

aware of no authority, and the

commenters cite none, holding that an

expedited procedure of the type that we

implement today amounts to a denial of

due process. Only SBC attempts to cite

specific legal authority to support its

due process argument, and it relies

principally on a decision from 1900 that

is plainly inapposite. In Roller v. Holly,

176 U.S. 398 (1900), the Court found a

denial of due process when a summons

directed the recipient in Virginia to

appear in a Texas court five days later

to defend himself. The Court did not

hold that, as an absolute matter, five

days was too little time to respond

effectively to process of the type

involved in that case. Rather, the Court

relied on the fact that the trip from

Virginia to Texas would require four of

the five available days and the

respondent would have had only one

day in which to prepare his case. The

Court emphasized that the adequacy of

a response period turned on whether it

permitted a defendant sufficient time

‘‘to prepare his defense and for his

journey.’’

34. We find the Roller decision,

written in the era before commercial

automobiles, airplanes, facsimile

machines and e-mail, to be of no probity

in evaluating the propriety of a 10-day

answer period nearly 100 years later.

Defendants on the Accelerated Docket

will have the full ten-day answer

period, as well as the pre-filing period,
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41439

to conduct their investigation and

prepare their answer. Accordingly, we

believe that the answer period we adopt

for the Accelerated Docket is adequate.

IV. Discovery

35. The Public Notice sought

comment on a variety of issues

surrounding the conduct of discovery in

an expedited process like that proposed

for the Accelerated Docket. The Public

Notice inquired whether parties to

Accelerated Docket proceedings should

be required automatically to produce

documents that bear the appropriate

relevance relationship to the issues in

the complaint proceeding, and it asked

when such production should take

place. Furthermore it sought comment

on whether the parties should be

required to submit all discovery

requests and disputes to the responsible

staff in advance of the initial status

conference, discussed below, so that the

staff could issue its decision on these

matters at the status conference, after

consultation with the parties. The

Public Notice also asked what measures

would be appropriate sanctions for

parties that failed to provide discovery

as ordered.

A. Timing of Automatic Document

Production

36. A rule requiring the production of

the most central, but not all relevant,

documents with the complaint and

answer is most likely to lead to the

realization of our goal of creating a

docket that is both effective and faster

than the current system for adjudicating

complaints. Furthermore, we believe

that the production of documents we

require by today’s rules actually may

make the document portion of the

discovery process demand less of the

parties’ time and move more quickly

than the process in the First Report &

Order, which requires that parties

provide their opponents with an index

giving substantial information about

each discoverable document. We believe

that requiring production of the actual

documents should reduce the

uncertainty and disputes that may arise

from the creation of a description of

each document. We also believe that

parties will expend markedly fewer

resources in assembling and producing

the appropriate documents than they

would in assembling the documents and

then preparing the detailed index

required under the First Report & Order.

Thus, our rule for the Accelerated

Docket requiring automatic production

of documents meeting the appropriate

standard will likely increase the speed

and effectiveness of the discovery that

each party obtains.

B. Content of Automatic Document

Production

37. The Public Notice sought

comment on what standard should be

adopted to guide the automatic

production of documents on the

Accelerated Docket. In particular, the

Public Notice suggested the possibility

of using the standard in the local rule

governing automatic disclosure in the

U.S. District Court for the Eastern

District of Texas. This standard requires

the automatic production, early in the

discovery phase, of ‘‘all documents, data

compilations, and tangible things in the

possession, custody, or control of the

party that are likely to bear significantly

on any claim or defense.’’

38. After review and consideration of

the various comments regarding the

appropriate standard, we have

determined that, on the Accelerated

Docket, the parties’ automatic document

production will be governed by the

‘‘likely to bear’’ standard proposed in

the Public Notice. Thus, at the time the

parties file their initial pleadings in an

Accelerated Docket proceeding, they

will be required to produce to each

other all documents, data compilations,

and tangible things ‘‘in the possession,

custody, or control of the party that are

likely to bear significantly on any claim

or defense.’’ This standard will include

materials: (1) That would not support

the disclosing party’s contentions; (2)

that are likely to have an influence on

or affect the outcome of a claim or

defense; (3) that reflect the relevant

knowledge of persons who, if their

potential testimony were known, might

reasonably be expected to be deposed or

called as a witness by any of the parties;

or (4) that competent counsel would

consider reasonably necessary to

prepare, evaluate or try a claim or

defense. Fundamentally, if a party

would expect to proffer a document at

the minitrial as an exhibit in support of

its case, the party should produce the

document. Similarly, if the party would

expect its opponent, if it had the

document, to proffer it as an exhibit

against the party, the document also

should be produced.

39. Despite most commenters’ lack of

enthusiasm for this standard, we adopt

it because we believe that it will lead to

the most manageable system for the

initial, automatic document productions

on the Accelerated Docket. We are not

persuaded by the comments asserting

that the standard is so vague that it will

lend itself to abuse by counsel or that it

will be difficult to enforce. We have no

reason to suspect that the ‘‘likely to bear

standard’’ is any more susceptible to

manipulation by counsel than is the

relevance standard. Nor does the

standard appear to be inherently more

difficult for an adjudicator to apply in

deciding discovery disputes or imposing

sanctions.

40. What we envision this standard as

likely to avoid is the production of

every single document that is relevant,

even if only tenuously so, to the issues

in a complaint proceeding. We believe

that the parties’ needs for discovery

would be poorly served by a rule

requiring such broad production in a

process that runs as quickly as the new

docket will. We are hopeful that the

‘‘likely to bear’’ standard will focus both

parties’’ production efforts on the

documents of core relevance to a

particular proceeding. Thus, it should

reduce the volume of documents

produced by each side and ensure that

the party receiving a production will be

able fully to review the material in the

time available in Accelerated Docket

proceedings. If necessary, at a later date,

we may refine or modify the standard to

ensure fair and expeditious completion

of the initial document production on

the Accelerated Docket.

41. We note that, both with their

initial document productions and

subsequent productions that may be

ordered, parties may have occasion to

produce documents for which they wish

to request confidential treatment.

Production of such documents shall be

made in accordance with 47 CFR 1.731.

In the rare case in which a producing

party believes that 47 CFR 1.731 will

not provide adequate protection for its

assertedly confidential material, it may

request either that the opposing party

consent to greater protection, or that the

staff supervising the proceeding order

greater protection.

C. Depositions and Other Discovery

42. As indicated in the Public Notice,

we contemplate that, in many instances,

parties to Accelerated Docket

proceedings will have the opportunity

to depose certain key witnesses who

have personal knowledge of the relevant

issues in dispute. We believe that a

limited number of depositions in

proceedings on this docket will serve

our goal of ensuring that the parties

fully may develop their cases so that

staff decisions in the proceedings will

be both fully informed and rendered

with the speed that a complete record

allows. In order to facilitate the

scheduling of such depositions within

the time constraints of the Accelerated

Docket, we believe that parties should

be required to exchange information

about individuals with knowledge

relevant to the issues of a proceeding.

We require that parties on the
41440 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

Accelerated Docket provide, with their

initial pleadings, a designation

containing the name, address, and

position of each individual believed to

have firsthand knowledge of the facts

alleged with particularity in its

pleading, along with a general

description of the relevant facts within

any such individual’s knowledge.

Alternatively, this designation may refer

to the paragraph numbers of the

appropriate pleading as a means of

describing the scope of an individual’s

knowledge.

43. In its filings before the initial

status conference, a party may request

approval to conduct the depositions of

individuals with knowledge relevant to

a complaint proceeding, including those

individuals listed in an opponent’s

information designation; in their prestatus-conference filings, parties also

may request additional document

production or, where appropriate,

interrogatories. We expect that, where

the requested discovery is reasonable

and consistent with the applicable time

constraints, staff will be inclined to

grant it. In order to ensure diligence and

completeness in each party’s

designation of individuals with relevant

knowledge, no party, absent a showing

of good cause, will be permitted to call

as a witness at a minitrial, or otherwise

offer evidence from, any individual in

that party’s employ who does not

appear on the party’s information

designation with a general description

of the issues on which the individual

will offer evidence.

44. As with fact witnesses, it is

important that parties have an

opportunity to explore the substance of,

and the basis for, expert testimony

offered by an opponent. Given the rapid

pace of Accelerated Docket proceedings,

however, it will be necessary for such

witnesses to be identified, and for the

substance of their testimony to be

disclosed, as quickly as possible. A

complainant who plans to introduce

expert evidence for a purpose other than

to rebut the defendant’s expert evidence

will be required to identify the witness

or witnesses in the information

designation accompanying its

complaint. In addition to identifying its

expert witness, complainants also will

be required to provide, at the time they

file their complaint, a brief statement of

the opinions to be expressed by the

expert, the basis and reasons therefor

and any data or other information that

the witness considered in forming her

opinions, as is required in Federal Rule

of Civil Procedure 26(a)(2)(B).

45. We require that defendants who

intend to rely on expert testimony

identify their experts at the time that

they file their answer. Defendants shall

also disclose the other material relating

to their expert witnesses that is required

of complainants; however this

disclosure may be made in the

defendant’s filing that is due two days

before the initial status conference. If a

complainant chooses to rely on

previously unidentified experts to rebut

any portion of the defendant’s case, the

complainant shall identify such experts

and make the other required disclosures

about their testimony at the initial status

conference. By the end of the initial

status conference, the parties will have

provided full disclosure of any expert

testimony on which they intend to rely,

and they will be in a position to seek

staff approval to depose expert

witnesses from whom they may want

additional discovery.

46. In light of the numerous tasks that

the parties will be required to complete

at the beginning of Accelerated Docket

proceedings, we see no purpose to

routinely allowing the service of

interrogatories before the initial status

conference. Accordingly, the rules that

we adopt today provide that parties to

Accelerated Docket proceedings may

propound interrogatories only after the

initial status conference and with the

permission of the staff supervising the

proceeding. At the initial status

conference, when the parties request

leave to take depositions or request

additional document production, they

may also seek staff approval to serve a

limited number of interrogatories on

their opponent. The decision of whether

to permit such interrogatories shall be

within the discretion of the staff

administering the proceeding.

D. Sanctions

47. The Public Notice sought

comment on what types of sanctions

would be appropriate for parties who

had failed to comply with their

discovery obligations in Accelerated

Docket proceedings. In a process that

will move at the pace of the Accelerated

Docket, it will be crucial that staff be

able effectively to compel prompt action

and adherence to its discovery orders.

Without such sanction authority, a

recalcitrant party likely would be able to

delay a proceeding enough that many of

the docket’s projected benefits would

vanish.

48. We strongly believe that swift and

effective sanctions will be necessary to

ensure against attempts to prolong

Accelerated Docket proceedings through

discovery delay or abuse. Appropriate

sanctions should also deter attempts to

affect the substance of proceedings by

improperly withholding information.

We believe it will encourage the parties’

strict compliance with discovery

obligations for us to grant the staff

administering the Accelerated Docket

broad discretion to respond to discovery

violations with the sanction that it

deems to be appropriate.

V. Status Conferences

49. The Public Notice sought

comment on the timing and content

requirements for the initial status

conference in the Accelerated Docket

proceedings. It proposed that, to

accommodate the time constraints of the

Accelerated Docket, the initial

conference take place 15 calendar days

after the filing of the complaint and that

the parties be required to meet before

the conference to discuss a variety of

issues to be covered at the conference,

including issues in dispute and

questions of discovery and scheduling.

It also proposed that the parties be

required to draft a joint statement

summarizing the issues on which they

agreed and their remaining disputes,

and to submit the statement to the

Commission two days before the initial

status conference.

A. Timing of Initial Status Conference

50. After careful consideration of the

comments on this issue, we direct that

the initial status conference in

Accelerated Docket proceedings will

take place ten calendar days after the

answer is due to be filed. This will place

the conference twenty days after the

service of the complaint, rather than

fifteen as proposed in the Public Notice.

We recognize that this interval of time

will require that counsel and parties

work with substantial diligence and

efficiency. However, we view this short

time period as necessary to effectuate

the speedy adjudication of disputes that

is our main goal for the Accelerated

Docket.

B. Issues to Be Addressed At Initial

Status Conference

51. The Public Notice proposed that,

before the status conference, the parties

meet and confer about a variety of

issues, including settlement prospects,

discovery, issues in dispute,

stipulations, and a schedule for the

remainder of the proceeding. It also

proposed that, before the status

conference, the parties report jointly in

writing to the Commission about the

results of their discussions on these

issues, including disputed and

stipulated facts, and key legal issues.

52. We believe that early discussion of

the specific facts in dispute will assist

the parties in focusing on the issues of

central relevance to the proceeding; it is

therefore critical to the overall success
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41441

of the Accelerated Docket. We require

that, before the initial status conference,

the parties discuss, and attempt to reach

agreement on, discovery issues and the

factual issues to which they can

stipulate; they shall submit to the staff,

two business days before the initial

conference, a listing of these

stipulations and the discovery issues on

which they have reached agreement.

Parties may conduct these meetings

either in person or by telephone

conference call.

53. Additionally, the complainant’s

submission before the initial status

conference shall respond, as

appropriate, to any affirmative defenses

that the defendant may have raised in

its answer. We believe that, given the

constraints of the Accelerated Docket, it

will be more efficient to require a

complainant to respond to affirmative

defenses in this manner than it would

be to provide for the filing of a separate

reply.

54. At the initial status conference,

the responsible staff will review the

parties’ disputed and stipulated issues

of fact. Based on the factual issues that

appear from this material, the staff will

determine what additional discovery,

beyond the initial disclosures, the

parties may take. Thus, at the status

conference, parties should be prepared

to demonstrate specifically how the

discovery they seek relates to particular

issues in dispute. The discovery that the

staff may grant at this status conference

includes depositions and additional

document production. Indeed, in light

of the relative efficiency of depositions

as a discovery tool, we expect that the

staff typically will grant a limited

number of depositions appropriate to

the issues in, and complexity of, a

particular case. Given the truncated

nature of the Accelerated Docket, we

believe that interrogatories will be of

limited usefulness. However, at the

initial conference, the staff may grant

permission to propound interrogatories

if it appears that they will function as

an effective alternative to some other

form of more time-consuming discovery.

As noted elsewhere, where discovery

requests are reasonable, we expect that

staff will be inclined to grant them.

55. At the initial status conference,

the Commission staff also will establish

a schedule for the remainder of the

proceeding, setting the deadlines for

completion of discovery, the pre-hearing

submissions discussed below, the

minitrial and any post-hearing

submissions.

56. Commenters also raise the issue of

whether a defendant in an Accelerated

Docket proceeding should be required to

post a bond or to escrow funds to cover

potential damages. Under the First

Report & Order, the Commission may

order a defendant who has lost the

liability phase of a bifurcated

proceeding to post a bond or escrow

funds pending resolution of damages

issues. We decline to modify the escrow

rules issued with the First Report &

Order. The staff administering the

Accelerated Docket will retain the same

discretion as staff does under the First

Report & Order to require a defendant

that has been found liable to post a bond

or escrow funds pending a

determination of damages.

VI. Minitrials

57. The Public Notice sought

comment on one of the unique

characteristics under consideration for

the Accelerated Docket, a hearing-type

proceeding or ‘‘minitrial’’ to be

conducted during each action. The

notice stated that such a proceeding

likely would offer certain advantages

over the all-paper proceeding currently

used for formal complaints. It noted

that, given the need for dispatch on the

Accelerated Docket, the minitrial likely

would occur between 40 and 45 days

after the filing of a complaint.

Furthermore, the Public Notice stated

that, in order to expedite these

minitrials, consideration was being

given to allotting to each party a set

amount of time in which to present its

case.

A. Utility of Minitrial Process

58. We strongly believe that minitrials

held at the end of Accelerated Docket

proceedings will substantially increase

the quality and clarity of the record on

which complaints are decided. As

commenters note, live testimony will

permit Commission staff to gauge

credibility in a manner that is

impossible in paper proceedings.

Furthermore, live testimony will allow

the parties and the decision maker to

flesh out both factual and legal issues in

a way that cannot be accomplished

within the static limitations of an allpaper process. A related benefit of live

proceedings is that they will permit the

decision maker to focus the parties on

those issues that it deems to be central

to the dispute; the decision maker will

not be required simply to accept the

dispute in the posture presented by the

parties’ briefs.

59. Another benefit that we envision

as likely to result from minitrials is the

direct participation of parties’

employees in the adjudicative process.

We believe that the experience of

testifying during a minitrial may give

carriers’ employees a more immediate

appreciation of their individual roles in

effectuating compliance with the Act.

Thus, having once been called as a

witness to explain their actions,

employees whose regular duties may

have an impact on their employer’s

compliance with the Act may be more

inclined to consider that impact when

executing their daily duties. We believe

that this procedure may emphasize the

strictures of the Act in a way that cannot

be accomplished under a paper process

in which carrier employees’

involvement with the process typically

is restricted to the preparation of an

affidavit to be presented by the carrier’s

counsel.

60. Given the above benefits that we

view as likely to arise from minitrials,

we believe that, on balance, the

advantages of the process outweigh the

drawbacks identified by some

commenters. We recognize that

preparing for a minitrial to be held 40

days after the filing of a complaint may

require counsel for both sides to expend

some more effort and time than required

to prepare and submit a brief under our

general complaint rules. However, this

increased burden is justified by the

more complete record, and the

consequently more informed decision,

that likely will emerge from the process.

B. Structure of Minitrial

61. Within the time limitations

discussed below, minitrials will allow

parties to Accelerated Docket

proceedings to present all aspects of

their case to the decision making

authority. As stated in the Public Notice,

the Accelerated Docket minitrials will

not be subject to the on-the-record

hearing requirements of the

Administrative Procedure Act.

Nonetheless, where possible, an

Administrative Law Judge (‘‘ALJ’’) will

preside at each minitrial. The ALJ or

other presiding staff will run the

minitrial, administer oaths to witnesses,

and will be in charge of the timing

system discussed below. Additionally,

where an ALJ participates in the

minitrial process, he will render any

necessary procedural rulings in

consultation with the staff member

administering the proceeding who also

will be present during the minitrial.

Because the staff’s prior participation in

the proceeding will have given it

substantial familiarity with the relevant

issues, the Commission staff will serve

as the decision maker in Accelerated

Docket proceedings, and it, rather than

the ALJ who runs the minitrial, will

issue the decision in the proceeding.

62. The rules we adopt provide for a

‘‘chess-clock’’ timing method. Thus, the

ALJ or other Commission personnel

who runs the minitrial will deduct from
41442 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

each party’s allotment any time that the

party’s counsel spends examining

witnesses, otherwise presenting

evidence or presenting argument.

Additionally, the ALJ may exercise

broad discretion in determining any

time penalty or deduction that he deems

appropriate for a party who appears

intentionally to be slowing the process

or attempting to delay its opponent’s

presentation. This timing method

should ensure that minitrials are

conducted quickly, in keeping with the

goals of the Accelerated Docket, while

maintaining fairness and allowing both

parties an adequate opportunity to

present evidence and argument.

63. Under the rules that we adopt

today, the Commission staff has broad

discretion to allocate the amount of time

for a minitrial that it believes to be

appropriate based on the complexity of

the issues and the amount and type of

evidence that appears reasonably

necessary for an adequate presentation

of each party’s case. Under the rules, the

staff would be within its discretion to

assign either side of a particular dispute

more than half of the allowed time, but

we expect that such instances will be

very rare.

64. We believe that a decision maker’s

observation of witness demeanor on

direct examination is as important and

revealing as it is on cross examination.

Similarly, we believe that the filing of

written direct testimony often would

result in parties burdening the record

with unnecessary or irrelevant

information that simply would slow

down the process of reaching a final

decision. Accordingly, we decline to

permit the introduction of written direct

testimony on the Accelerated Docket.

Both sides shall rely on live, rather than

written, presentations of their cases at

minitrials. We note, however, that the

precise format of a party’s presentation

during a minitrial will be a question on

which that party has wide latitude.

65. It will aid in the efficient

completion of minitrials for the parties

to have notified each other, in advance,

of the exhibits they may introduce and

the witnesses they may call during the

minitrial. We therefore require that,

three days in advance of the scheduled

beginning of the minitrial, each party

shall serve by hand or facsimile, on all

other parties to the proceeding, a copy

of their exhibits and a list of witnesses

that they may call. The ALJ presiding at

the minitrial may then hear and rule on

any witness or exhibit objections before

the beginning of the hearing itself. As

discussed below, relevance rarely will

be an appropriate basis for objection

during minitrials; we also expect that,

owing to the administrative nature of

the proceeding, other objections will be

minimal.

66. One commenter suggests that we

apply certain portions of the Federal

Rules of Evidence to the minitrial

process. We decline to adopt the

suggested evidentiary rules. Rather, we

believe that the strict time limitations

under which parties will operate in

minitrials should serve to deter and

sanction the introduction of extensive

amounts of irrelevant material: the

introduction of irrelevant evidence

merely will reduce the time available for

other, more pertinent portions of the

proponent’s case.

67. We are hopeful that the minitrial

process will serve as a more effective

and informative alternative to the briefs

that typically are filed in complaint

proceedings. However, we also believe

that it will aid the parties in focusing

their presentations, and the responsible

staff in promptly rendering a decision,

if the parties submit some

documentation outlining their

arguments. Thus, we require that parties

submit proposed findings of fact and

conclusions of law two days before the

beginning of the minitrial. In length,

these shall not exceed 40 pages per

party. Additionally, no more than three

days after the conclusion of the

minitrial, parties may, but are not

required to, submit revised proposed

findings of fact and conclusions of law

to respond to evidence and legal

argument raised during the minitrial.

This second set of submissions should

permit the parties a final opportunity to

explain complex technical issues

involved in the proceeding and to rebut

their opponents’ arguments. This

second set of submissions shall not

exceed 20 pages per party.

VII. Damages

68. The Public Notice sought

comment on limiting the Accelerated

Docket to bifurcated liability claims,

with damages claims being handled

separately under the procedures in the

First Report & Order. The overwhelming

majority of commenters support our

proposal, although certain commenters

recommend that Commission staff be

permitted to determine damages issues

on the Accelerated Docket when it

appears to be appropriate.

69. As we stated above, the staff

administering the docket may consider

a complaining party’s decision to

bifurcate its damages claims from the

liability portion of its case in

determining whether to accept a matter

onto the Accelerated Docket. We believe

that bifurcation of the issues in this

manner generally will aid in the

decision of complaint proceedings

within the expedited timeframe of the

new docket. We agree, however, that

parties should have the option at least

to request adjudication of their damages

issues on the Accelerated Docket.

Accordingly, the staff administering the

docket will retain the discretion to

accept a complaint presenting both

liability and damages issues.

Additionally, a complainant that has

prevailed on the question of liability

may request Accelerated Docket

treatment for its subsequent damages

complaint. We agree with the

commenters asserting that damages

issues should be resolved as quickly as

possible after a finding of liability;

however, we decline the invitation to

set a deadline for the conclusion of the

damages phase when the damages phase

is not accepted onto the Accelerated

Docket.

VIII. Other Issues

70. The Public Notice also requested

comment on whether it would be

necessary to modify any other rules in

order to accommodate the time

constraints of the Accelerated Docket.

Commenters have made several

recommendations, including that we: (1)

Limit the effect of Accelerated Docket

decisions on future cases; (2) allow

compulsory counterclaims to be

pursued on the Accelerated Docket; and

(3) issue a formal notice of proposed

rulemaking in this proceeding.

71. Precedential Value of Accelerated

Docket Proceedings: Bell Atlantic

suggests that rulings in Accelerated

Docket proceedings be limited to the

particular case in question and that they

be accorded no preclusive or

precedential effect in other proceedings

or other forums. We decline to impose

such a limit on Accelerated Docket

proceedings. Rather, staff rulings on the

docket will have the same precedential

value as any other adjudicative decision

issued under delegated authority.

72. Counterclaims: CompTel suggests

that counterclaims be permitted in

Accelerated Docket proceedings if they

arise from the same transaction or

occurrence, and would be eligible for

the Accelerated Docket if brought

separately. In the First Report & Order,

we prohibited all counterclaims in

complaint proceedings, requiring that

such claims be filed as separate,

independent actions. We took this

action to ensure that complaint

proceedings would be resolved within

the statutory deadlines in the 1996 Act.

This reasoning applies with even greater

force to the Accelerated Docket

proceedings, which we expect to be

resolved even more quickly than

required by the statutory deadlines.
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41443

Defendants will be required to file any

counterclaims that they may have as

separate actions for which they will be

required independently to seek

inclusion on the Accelerated Docket.

73. Need for Formal Notice of

Proposed Rulemaking: BellSouth

contends that the notice provisions of

the Administrative Procedure Act

(‘‘APA’’) require that, before issuing

rules to govern the Accelerated Docket,

we must issue a formal notice of

proposed rulemaking, including specific

proposed rules. We disagree. Section

553(b) of the APA requires that an

agency afford interested parties

adequate notice of, and an opportunity

to comment on, the provisions that

appear in the agency’s final regulations.

The Public Notice appeared in the

Federal Register, and it contained

adequate notice of the provisions we

adopt today. Accordingly, we believe

that no further notice is required to

comply with the notice provisions of the

APA.

IX. Review by the Commission

74. Staff decisions issued on

delegated authority after the minitrial

will be, pursuant to our rules,

immediately effective and binding on

the parties. A party to the proceeding

that seeks to challenge such a decision

may do so by filing its application for

review. Applications for review of

Accelerated Docket staff decisions based

on delegated authority will be due 15

calendar days after the release date of

the staff decision. As under our current

rules, the opposition to the application

for review will be due 15 calendar days

after the application for review is filed,

and the party seeking review may file its

reply 10 calendar days after the due date

of the opposition.

75. Alternatively, certain other

Accelerated Docket proceedings will

raise issues that may not be decided on

delegated authority. Such staff

decisions, issued after the minitrial, will

not be immediately effective. Rather,

these decisions will be recommended

decisions, which the Commission will

either adopt or modify. A party to the

proceeding that seeks to challenge the

staff decision before the Commission

may do so by filing its comments on the

recommended decision according to the

same schedule as that applicable for

applications for review on the

Accelerated Docket. Opposition and

reply comments similarly are permitted

on the same schedule as that for

applications for review.

76. In the event that neither party files

comments to challenge a recommended

staff decision in an Accelerated Docket

proceeding, the Commission will issue

its order either adopting or modifying

the staff decision within forty-five days

of its release. If the staff’s recommended

decision is challenged by any party to

the proceeding, the Commission will

issue its order either adopting or

modifying the decision no more than

thirty days after the filing of the final

comments on the decision.

77. The Commission may summarily

affirm a staff decision from the

Accelerated Docket before it for review.

Additionally, in cases where it appears

that argument would aid in our

decision, we may schedule an oral

argument before the full Commission.

X. Conclusion

78. In this Second Report & Order, we

amend our rules governing formal

complaint proceedings to create an

Accelerated Docket, which will be

administered by the Enforcement

Division of the Common Carrier Bureau.

The rules of practice and procedure

relating to the Accelerated Docket will

promote competition in all

telecommunications markets by

providing an expedited process for

resolving complaints of unreasonable,

discriminatory, or otherwise unlawful

conduct by telecommunications

carriers.

79. We recognize that many of the

procedures we adopt for the Accelerated

Docket are, to a substantial extent, new

and untried. Accordingly, we expect

that both staff and the Commission will

accumulate valuable experience in the

implementation of these new rules. We

will monitor closely the effect and

utility of the Accelerated Docket

procedures; and we expect to receive

periodic reports from the Common

Carrier Bureau regarding its

administration of the new docket. Based

on this information and within a year of

the effective dates of these rules, we will

consider revisions to these procedures

to make them more effective.

XI. Final Regulatory Flexibility

Analysis

80. As required by the Regulatory

Flexibility Act (‘‘RFA’’), an Initial

Regulatory Flexibility Analysis

(‘‘IRFA’’) was incorporated in the notice

of proposed rulemaking in this docket.

The Commission sought written public

comment on the proposals in the NPRM,

including comment on the IRFA. The

Commission has prepared this Final

Regulatory Flexibility Analysis of the

possible significant economic impact on

small entities of the rules promulgated

in this Second Report & Order. This

present Final Regulatory Flexibility

Analysis (‘‘FRFA’’) conforms to the

RFA.

A. Need for and Objectives of the

Implementation of the

Telecommunications Act of 1996,

Amendment of Rules Governing

Procedures to be Followed When Formal

Complaints Are Filed Against Common

Carriers, Second Report and Order, and

the Rules Adopted Herein

81. The Commission is issuing this

Second Report & Order to create an

Accelerated Docket designed to provide

for the prompt resolution of carrierrelated disputes and to carriers to obtain

more extensive discovery from their

opponents than has been routinely

available in formal complaint

proceedings. Additionally, the new

docket will provide for the full and

effective presentation of each party’s

case in a hearing-type proceeding. Some

of the requirements adopted in this

Second Report & Order may have a

significant impact on a substantial

number of small businesses as defined

by Section 601(3) of the RFA. Generally,

the amended rules will: (1) Require

parties to engage in staff-supervised prefiling settlement discussions, (2) modify

the form of initial pleadings, (3) shorten

filing deadlines, (4) modify the

discovery process, (5) provide for the

live presentation of evidence to the

decision maker, and (6) require provide

for expedited briefing and review of

staff decisions.

B. Summary of Significant Issues Raised

by the Public Comments in Response to

the IRFA

82. In the IRFA, the Commission

found that the rules we proposed to

adopt in this proceeding may have a

significant impact on a substantial

number of small businesses as defined

by section 601(3) of the RFA. The IRFA

solicited comment on alternatives to our

proposed rules that would minimize the

impact on small entities consistent with

the objectives of this proceeding. No

comments were submitted directly in

response to the IRFA. However, as

described below in Section 5, we have

taken into account those portions of the

rules that appear likely to affect small

entities.

C. Description and Estimate of the

Number of Small Entities to Which the

Rules Adopted in the Report and Order

in CC Docket No. 96–238 Will Apply

83. We first discuss the estimated

number of potential complainants,

which may include entities that are not

telephone companies. Next we discuss

generally the estimated number of

potential defendants, which would be

included in the total number of small

telephone companies falling within the
41444 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

SBA definitions of small business

concerns and small businesses. Then,

we discuss the number of small

businesses within the SIC subcategories,

and attempt further to refine those

estimates to correspond with the

categories of telephone companies that

are commonly used under our rules.

1. Potential Complainants

84. Section 208(a) provides that

formal complaints against a common

carrier may be filed by ‘‘[a]ny person,

any body politic or municipal

organization.’’ Beyond this definition,

the FCC has no control or information

regarding the filing frequency of

complaints, nor identities of parties that

will file complaints. The filing of

complaints depends entirely upon the

complainant’s perception that it has a

cause of action against a common carrier

subject to the Act, as amended, and it

is the complainant’s decision to file its

complaint with the FCC. Therefore we

are unable at this time to estimate the

number of future complainants that

would qualify as small business

concerns under the SBA’s definition.

85. As noted, the RFA includes ‘‘small

businesses,’’ ‘‘small organizations’’

(non-profits), and ‘‘small governmental

jurisdictions.’’ Nationwide, there are

4.44 million small business firms,

according to SBA reporting data. A

small organization is generally ‘‘any notfor-profit enterprise which is

independently owned and operated and

is not dominant in its field.’’

Nationwide, there are 275,801 small

organizations. Last, ‘‘small

governmental jurisdiction’’ generally

means ‘‘governments of cities, counties,

towns, townships, villages, school

districts, or special districts, with a

population of less than 50,000.’’ As of

1992, there were 85,006 such

jurisdictions in the United States.

2. Potential Defendants

86. Estimate of Potential Defendants

that may be Classified as Small

Businesses. Section 208(a) provides for

the filing of formal complaints for

‘‘anything done or omitted to be done by

any common carrier subject to this Act.’’

The FCC has no control as to the filing

frequency of complaints. This inability

to predict the number of future

defendants necessitates conducting this

FRFA based on the number of potential

small business defendants, which is the

number of common carriers that qualify

as small business concerns under the

SBA’s definition.

87. Total Number of Telephone

Companies Affected. The decisions and

rules adopted herein may have a

significant effect on a substantial

number of small telephone companies

identified by the SBA. The United

States Bureau of the Census (‘‘Census

Bureau’’) reports that, at the end of

1992, there were 3,497 firms engaged in

providing telephone service, as defined

therein, for at least one year. It seems

reasonable to conclude, therefore, that

no more than 3,497 telephone service

firms are small entity telephone service

firms or small incumbent LECs that may

be affected by this Order. We estimate

below the potential defendants affected

by this order by service category.

88. Wireline Carriers and Service

Providers. Of the 2,321 nonradiotelephone companies listed by the

Census Bureau, 2,295 companies (or, all

but twenty-six) were reported to have no

more than 1,000 employees.

Consequently, we estimate that there are

no more than 2,295 small entity

telephone communications companies

(other than radiotelephone companies)

that may be affected by the actions taken

in this Report and Order.

89. Non-LEC wireline carriers.

According to our most recent data, we

estimate that there are no more than 130

small entity IXCs; fifty-seven small

entity CAPs; twenty-five small entity

OSPs; 271 small entity pay telephone

service providers; and 260 small entity

providers of resale telephone service;

and thirty ‘‘other’’ toll carriers that

might be affected by the actions and

rules adopted in this Report and Order.

90. Local Exchange Carriers.

According to our most recent data we

estimate that there are no more than

1,347 small LECs (including small

incumbent LECs) that may be affected

by the actions taken in this Report and

Order.

91. Radiotelephone (Wireless)

Carriers: We estimate that there are no

more than 1,164 small entity

radiotelephone companies that might be

affected by the actions and rules

adopted in this Report and Order.

92. Cellular and Mobile Service

Carriers: We estimate that there are no

more than 792 small entity Cellular

Service Carriers and no more than 138

small entity Mobile Service Carriers that

might be affected by the actions and

rules adopted in this Report and Order.

93. Broadband PCS Licensees. Based

on available data, we conclude that the

number of broadband PCS licensees that

might be affected by the decisions in

this Report and Order includes, at a

minimum, the 183 winning bidders that

qualified as small entities in the Blocks

C through F broadband PCS auctions.

D. Description of Projected Reporting,

Recordkeeping and Other Compliance

Requirements

94. Below, we analyze the projected

reporting, recordkeeping, and other

compliance requirements that may

apply to small entities and small

incumbent LECs, and we mention some

of the skills needed to meet these new

requirements. Overall, we anticipate

that the impact of these rules will be

beneficial to small businesses and other

filers. By requiring supervised pre-filing

settlement discussions, and offering a

faster alternative for the resolution of

competitive disputes, these rules will

assist in the settlement of disputes

without litigation, and they will result

in the speedier disposition of

complaints that are actually filed.

Moreover, Commission staff retains the

discretion to refuse to accept a

complaint proceeding onto the

Accelerated Docket if it appears that

such acceptance would place an

inordinately high burden on one party,

including small business entities.

95. Supervised Settlement

Discussions. The amended rules will

require a prospective complainant to

notify Commission staff of its intention

to file a complaint and then to

participate in staff-supervised, pre-filing

settlement discussions before its

complaint, once filed, will be accepted

onto the Accelerated Docket. Similarly,

the amended rules require a defendant

seeking admission to the Accelerated

Docket to submit its written request to

the staff and then to participate in any

supervised settlement discussions that

the staff deems appropriate. Although

these supervised negotiation

requirements may delay slightly a

complainant’s filing of a formal

complaint or the progress of a

proceeding in which a complaint has

already been filed, we conclude that

these requirements will serve to settle or

narrow disputes, or to facilitate the

compilation and exchange of relevant

documentation or other information

prior to the filing of a formal complaint

with the Commission.

96. Pleadings and Discovery. The

amended rules require complaints and

answers to be accompanied by copies of

all documents within the filing party’s

possession, custody or control which

are likely to bear significantly on any

claim or defense in the proceeding. The

defendant must file its answer within

ten days after service of the complaint.

No separate reply pleading shall be

permitted, but complainants that would

otherwise file a reply may include that

material in their pre-status-conference

filing. In addition to the automatic
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41445

document production that will

accompany both parties’ initial

pleadings, parties may include in their

pre-status-conference filings, requests

for additional discovery, including

requests for depositions, interrogatories

or additional document production.

97. Status Conferences. An initial

status conference will take place ten

calendar days after the filing of the

answer unless otherwise ordered by the

staff. Before this status conference, the

parties shall have conferred regarding:

(1) Discovery; (2) issues in dispute; (3)

facts to which they can stipulate; (4)

factual and legal issues in dispute. The

parties shall submit, two days before the

initial status conference, a joint

statement of stipulated facts and, if

possible, joint statements regarding

agreed discovery and disputed issues.

Where opposing parties cannot agree on

discovery issues or on a joint statement

of disputed issues, each party shall

submit, two days before the status

conference, a separate statement on

these issues.

98. These amended rules may place a

greater burden on parties, including

small business entities, to file their

answers and provide copies of

discoverable documents to their

opponents within a short period of time.

However, in many other respects, the

rules pleading, discovery and status

conference rules under the Accelerated

Docket are significantly less

burdensome than under the rules

applicable more generally to formal

complaint proceedings. For example, it

will be substantially less burdensome

for defendant simply to provide copies

of the appropriate documents to their

opponents than it will be to compile the

document inventory required in other

formal complaint proceedings.

Additionally, in light of the substantial

time that it may take to negotiate joint

statements of disputed issues, parties on

the Accelerated Docket are permitted to

submit separate statements containing

this information. These rules will enable

the Commission to resolve many

preliminary issues efficiently at the

initial status conference and thereby

prevent the parties from wasting

resources through delay. Furthermore,

the rules will enable the parties quickly

to receive substantial discovery through

an automatic document production.

This should substantially speed parties’

preparation of their cases.

99. Minitrials and Petitions for

Review. Between forty and forty-five

days after a complaint is filed in an

Accelerated Docket proceeding, the

parties will participate in a minitrial

proceeding at which they will present

their case through live testimony and/or

argument of counsel. Parties will be

required to file proposed findings of fact

and conclusions of law two days before

the minitrial; rebuttal proposed findings

of fact and conclusions of law may be

filed three days after the conclusion of

the minitrial. Once the staff has issued

a decision, any application for review

by the Commission will be due fifteen

days after the release of the decision.

Oppositions to the application for

review will be due fifteen days after the

application; and replies in support of

the application will be due ten days

thereafter.

100. These amended rules may place

a burden on parties, including small

business entities, to prepare the

required proposed findings of fact and

conclusions of law and to prepare and

present their cases at the minitrial.

However, this burden will be offset by

a corresponding reduction in the work

that the parties would have been

required to expend preparing briefs

under the generally applicable formal

complaint rules. Additionally, the

compressed briefing deadlines will

impose some additional burden on

parties filing applications of review of

staff decisions. These rules will permit

parties to present their cases directly to

the Commission staff and to respond

immediately to questions or concerns

that the staff may have. Furthermore,

the compressed briefing schedule for

applications for review will ensure that

the review process for Accelerated

Docket proceedings progresses quickly,

thereby affording the parties a decision

by the full Commission in as short a

time as possible.

101. As noted above, Commission

staff retains the discretion to decline to

admit a formal complaint proceeding to

the Accelerated Docket where it appears

that such admission would place an

unreasonable burden on a party to the

proceeding, including a small business

entity. It is also important to note that

these rules apply only to section 208

complaints that are filed with the

Commission. Complainants wishing to

participate in a less accelerated process,

for example, may file their complaints

in federal district court.

E. Steps Taken to Minimize Significant

Economic Impact on Small Entities, and

Significant Alternatives Considered

102. These amended rules may place

a greater burden on a small business

entity to provide greater discovery early

in the process and to litigate their cases

more quickly than in the past. However,

we conclude that the rules do not

significantly alter the level of

evidentiary and legal support that

would be ultimately required of parties

in formal complaint actions pursuant to

the past rules. Additionally, potentially

higher initial costs may be somewhat

offset by the prompt resolution of

complaints and the avoidance of

protracted and costly discovery

proceedings and briefing requirements.

It has been noted, for example, that the

overall litigation costs of ‘‘rocket

docket’’ cases in the U.S. District Court

for the Eastern District of Virginia are

lower than the costs of cases that take

longer to resolve. Indeed, by requiring

better and more complete submissions

earlier in the process, these amended

rules reduce the need for discovery and

other information filings, thereby

significantly reducing the burden on

small business entities.

103. Overall, we conclude that there

will be a significant positive economic

impact on small entity carriers that, as

a result of the new Accelerated Docket,

will find their complaints resolved more

expeditiously than in the past. The

establishment of these rules of practice

and procedure, by providing a forum for

prompt resolution of complaints of

unreasonable, discriminatory, or

otherwise unlawful conduct by BOCs

and other telecommunications carriers,

will foster robust competition in all

telecommunications markets.

F. Report to Congress

104. The Commission will send a

copy of the Amendment of Rules

Governing Procedures to be Followed

When Formal Complaints Are Filed

Against Common Carriers, Second

Report & Order, including this FRFA, in

a report to be sent to Congress pursuant

to the Small Business Regulatory

Enforcement Fairness Act of 1996, see 5

U.S.C. 801 (a)(1)(A). A summary of this

Report and Order and this FRFA will be

sent to the Chief Counsel for Advocacy

of the Small Business Administration.

XII. Ordering Clauses

105. Accordingly, it is ordered that

pursuant to sections 1, 4, 201–205, 208,

260, 271, 274, and 275 of the

Communications Act of 1934, as

amended, 47 U.S.C. 151, 154, 201–205,

208, 260, 271, 274, and 275, the

policies, rules, and requirements set

forth herein are adopted.

106. It is further ordered that the

Second Report & Order is adopted and

will become effective October 5, 1998,

except for §§ 1.115, 1.721, 1.724, 1.726,

1.729, 1.730 and 1.733, which contain

information collection requirements that

are not effective until approved by the

Office of Management and Budget. The

FCC will publish a document in the

Federal Register announcing the

effective date for those sections. Written
41446 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

comments by the public on the

information collections are due

September 3, 1998.

107. It is further ordered that the

Commission’s Office of Public Affairs

shall send a copy of this Second Report

& Order, including the FRFA, to the

Chief Counsel for Advocacy of the Small

Business Administration in accordance

with paragraph 603(a) of the Regulatory

Flexibility Act, Pub. L. 96–354, 94 Stat.

1164, 5 U.S.C. 601, et seq. (1981).

List of Subjects in 47 CFR Part 1

Communications common carriers.

Federal Communications Commission,

Magalie Roman Salas,

Secretary.

Rule Changes

Part 1 of title 47 of the Code of

Federal Regulations is amended as

follows:

PART 1—PRACTICE AND

PROCEDURE

1. The authority citation for part 1

continues to read as follows:

Authority: 15 U.S.C. 79 et seq.; 47 U.S.C.

151, 154(i), 154(j), 155, 225, and 303(r).

2. Section 1.115 is amended by

adding paragraph (e)(4) to read as

follows:

§ 1.115 Application for review of action

taken pursuant to delegated authority.

* * * * *

(e) * * *

(4) Applications for review of final

staff decisions issued on delegated

authority in formal complaint

proceedings on the Common Carrier

Bureau’s Accelerated Docket (see, e.g.,

§ 1.730) shall be filed within 15 days of

public notice of the decision, as that

date is defined in § 1.4(b). These

applications for review, oppositions and

replies in Accelerated Docket

proceedings shall be served on parties to

the proceeding by hand or facsimile

transmission.

* * * * *

3. Section 1.720 is amended by

revising the introductory paragraph to

read as follows:

§ 1.720 General pleading requirements.

Formal complaint proceedings are

generally resolved on a written record

consisting of a complaint, answer, and

joint statement of stipulated facts,

disputed facts and key legal issues,

along with all associated affidavits,

exhibits and other attachments.

Commission proceedings may also

require or permit other written

submissions such as briefs, written

interrogatories, and other

supplementary documents or pleadings.

Those formal complaint proceedings

handled on the Common Carrier

Bureau’s Accelerated Docket are subject

to pleading and procedural rules that

differ in some respects from the general

rules for formal complaint proceedings.

* * * * *

4. Section 1.721 is amended by

revising the section heading and the

introductory text of paragraph (a), and

by adding paragraph (e) to read as

follows:

§ 1.721 Format and content of complaints.

(a) Subject to paragraph (e) of this

section governing Accelerated Docket

proceedings, a formal complaint shall

contain:

* * * * *

(e) Complaints on the Accelerated

Docket. For the purpose of this

paragraph (e), the term document also

shall include data compilations and

tangible things.

(1) Formal complaints that have been

accepted onto the Accelerated Docket

shall conform to the requirements set

out in this section with the following

listed exceptions:

(i) The requirement in § 1.720(c) and

paragraphs (a)(5) and (a)(11) of this

section that factual assertions be

supported by affidavit shall not apply to

complaints on the Accelerated Docket.

Nevertheless, allegations of material

fact, whether based on personal

knowledge or information and belief,

that cannot be supported by

documentation remain subject to the

provisions of § 1.52.

(ii) Complaints on the Accelerated

Docket are not required to include

proposed findings of fact, conclusions of

law, and legal analysis relevant to the

claims and arguments set forth in the

complaint, as required in paragraph

(a)(6) of this section. Nevertheless,

complaints on the Accelerated Docket

shall fully set out the facts and legal

theories on which the complainant

premises its claims.

(iii) In light of the requirement for

staff-supervised settlement negotiations

in § 1.730(b), complaints on the

Accelerated Docket are not required to

include a certification that the

complainant has discussed or attempted

to discuss the possibility of settlement

with each defendant, as required in

paragraph (a)(8) of this section.

(iv) In light of the automatic

document production required in

§ 1.729(i)(1), complaints on the

Accelerated Docket are not required to

include a description of all relevant

documents in the complainant’s

possession, custody or control, as

required in paragraph (a)(10)(ii) of this

section.

(v) Complaints on the Accelerated

Docket are not required to provide the

description, required in paragraph

(a)(10)(iii) of this section, of the manner

in which the complainant identified

persons with knowledge of, and

documents relevant to, the dispute.

(2) Formal complaints that have been

accepted onto the Accelerated Docket

will comply with the following

requirements in addition to those

requirements generally applicable in

formal complaint proceedings:

(i) As required in § 1.729(i)(1),

complaints on the Accelerated Docket

shall be accompanied, when served on

defendants, by copies of documents,

within the complainant’s possession,

custody or control, that are likely to bear

significantly on the issues raised in the

complaint. Unless otherwise directed,

these documents shall not be filed with

the Commission.

(ii) Complaints on the Accelerated

Docket will bear the following notation

in bold typeface above the normal

caption on the first page: ‘‘Accelerated

Docket Proceeding: Answer Due Within

Ten Days of Service Date.’’

5. Section 1.724 is amended by

revising paragraph (a) and by adding

paragraph (k) to read as follows:

§ 1.724 Answers.

(a) Subject to paragraph (k) of this

section governing Accelerated Docket

proceedings, any carrier upon which a

copy of a formal complaint is served

shall answer such complaint in the

manner prescribed under this section

within twenty days of service of the

formal complaint by the complainant,

unless otherwise directed by the

Commission.

* * * * *

(k) Accelerated Docket Proceedings.

For the purpose of this paragraph (k),

the term document also shall include

data compilations and tangible things.

(1) Any party named as a defendant

in an Accelerated Docket formal

complaint shall answer such complaint

in the manner prescribed under this

section within ten days of service of the

complaint by the complainant, unless

otherwise directed by the Commission.

Except as set forth in this paragraph (k),

answers in Accelerated Docket

proceedings shall comply with the

requirements of this section.

(2) The requirement in § 1.720(c) and

paragraph (g) of this section that factual

assertions be supported by affidavit

shall not apply to answers in

Accelerated Docket proceedings.

Nevertheless, allegations of material

fact, whether based on personal
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41447

knowledge or information and belief,

that cannot be supported by

documentation remain subject to the

provisions of § 1.52.

(3) Answers on the Accelerated

Docket are not required to include

proposed findings of fact, conclusions of

law, and legal analysis relevant to the

defenses and arguments set forth in the

answer, as required in paragraph (c) of

this section. Nevertheless, answers on

the Accelerated Docket shall fully set

out the facts and legal theories on which

the defendant premises its defenses.

(4) In light of the requirement for

staff-supervised settlement negotiations

required in § 1.730(b), answers on the

Accelerated Docket are not required to

include a certification that the

defendant has discussed, or attempted

to discuss, the possibility of settlement

with the complainant, as required in

paragraph (h) of this section.

(5) As required in § 1.729(i)(1),

answers on the Accelerated Docket shall

be accompanied, when served on

complainants, by copies of documents,

within the defendant’s possession,

custody or control, that are likely to bear

significantly on the issues raised in the

proceeding. Unless otherwise directed,

these documents shall not be filed with

the Commission. In light of this

automatic document production

requirement, answers on the

Accelerated Docket are not required to

include a description of all relevant

documents in the defendant’s

possession, custody or control, as

required in paragraph (f)(2) of this

section.

(6) Answers on the Accelerated

Docket are not required to provide the

description, required in paragraph (f)(3)

of this section, of the manner in which

the defendant identified persons with

knowledge of, and documents relevant

to, the dispute.

(7) In Accelerated Docket

proceedings, the defendant, as required

in § 1.729(i)(1), shall serve,

contemporaneously with its answer, the

complainant(s) with copies of

documents, within the defendant’s

possession, custody or control, that are

likely to bear significantly on the issues

raised in the complaint and/or the

answer.

6. Section 1.726 is amended by

revising paragraph (a) and adding

paragraph (g) to read as follows:

§ 1.726 Replies.

(a) Subject to paragraph (g) of this

section governing Accelerated Docket

proceedings, within three days after

service of an answer containing

affirmative defenses presented in

accordance with the requirements of

§ 1.724(e), a complainant may file and

serve a reply containing statements of

relevant, material facts that shall be

responsive to only those specific factual

allegations made by the defendant in

support of its affirmative defenses.

Replies which contain other allegations

or arguments will not be accepted or

considered by the Commission.

* * * * *

(g) Accelerated Docket Proceedings.

For the purpose of this paragraph (g),

the term document also shall include

data compilations and tangible things.

(1) The filing of a separate pleading to

reply to affirmative defenses is not

permitted in Accelerated Docket

proceedings. Complainants in such

proceedings may include, in the

§ 1.733(i)(4) pre-status-conference filing,

those statements that otherwise would

have been the subject of a reply.

(2) In Accelerated Docket

proceedings, the failure to reply, in the

pre-status-conference filing, 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.

(3) If a complainant replies to an

affirmative defense in its § 1.733(i)(4),

pre-status-conference filing, it shall

include in that filing the information,

required by paragraph (d)(1) of this

section, identifying individuals with

firsthand knowledge of the facts alleged

in the reply.

(4) An Accelerated Docket

complainant that replies to an

affirmative defense in its § 1.733(i)(4),

pre-status-conference filing also shall

serve on the defendant, at the same time

as that filing, those documents in the

complainant’s possession, custody or

control that were not previously

produced to the defendant and that are

likely to bear significantly on the issues

raised in the reply. Such a complainant

is not required to comply with the

remainder of the requirements in

paragraphs (d) and (e) of this section.

7. Section 1.727 is amended by

revising paragraph (a) to read as follows:

§ 1.727 Motions.

(a) A request to the Commission for an

order shall be by written motion, stating

with particularity the grounds and

authority therefor, and setting forth the

relief or order sought.

* * * * *

8. Section 1.729 is amended by

revising paragraph (a) and adding

paragraph (i) to read as follows:

§ 1.729 Discovery.

(a) Subject to paragraph (i) of this

section governing Accelerated Docket

proceedings, a complainant may file

with the Commission and serve on a

defendant, concurrently with its

complaint, a request for up to ten

written interrogatories. A defendant

may file with the Commission and serve

on a complainant, during the period

starting with the service of the

complaint and ending with the service

of its answer, a request for up to ten

written interrogatories. A complainant

may file with the Commission and serve

on a defendant, within three calendar

days of service of the defendant’s

answer, a request for up to five written

interrogatories. Subparts of any

interrogatory will be counted as separate

interrogatories for purposes of

compliance with this limit. Requests for

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, provided, however, that

requests for interrogatories filed and

served by a complainant after service of

the defendant’s answer shall be limited

in scope to specific factual allegations

made by the defendant in support of its

affirmative defenses. 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 pending

proceeding.

* * * * *

(i) Discovery in Accelerated Docket

proceedings.

(1) Each party to an Accelerated

Docket proceeding shall serve, with its

initial pleading and with any reply

statements in the pre-status-conference

filing (see § 1.726(g)(1)), copies of all

documents in the possession, custody or

control of the party that are likely to

bear significantly on any claim or

defense. For the purpose of this

paragraph (i), document also shall

include data compilations and tangible

things. A document is likely to bear

significantly on a claim or defense if it:

(i) Appears likely to have an influence

on, or affect the outcome of, a claim or

defense;

(ii) Reflects the relevant knowledge of

persons who, if their potential

testimony were known, might

reasonably be expected to be deposed or

called as a witness by any of the parties;

(iii) Is something that competent

counsel would consider reasonably

necessary to prepare, evaluate or try a

claim or defense; or
41448 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

(iv) Would not support the disclosing

party’s contentions.

(2) In their § 1.733(i)(4) pre-statusconference filings, parties to

Accelerated Docket proceedings may

request the production of additional

documents. In their § 1.733(i)(4) filings,

parties may also seek leave to conduct

a reasonable number of depositions,

including depositions of expert

witnesses, if any. When requesting

additional discovery, each party shall be

prepared at the status conference to

justify its requests by identifying the

specific issue or issues on which it

expects to obtain evidence from each

request.

(3) Interrogatories shall not be

routinely granted in Accelerated Docket

proceedings. A party to an Accelerated

Docket proceeding that prefers

interrogatories to the other forms of

available discovery, for reasons of

convenience or expense, may seek leave

in its § 1.733(i)(4) pre-status-conference

filing to propound a limited number of

interrogatories.

(4) Expert Witnesses.

(i) Any complainant in an Accelerated

Docket proceeding that intends to rely

on expert testimony for a purpose other

than to rebut a defendant’s expert

evidence, shall identify its expert

witnesses in the information

designation required by § 1.721(a)(10)(i).

In its § 1.721(a)(10)(i) information

designation, such a complainant shall

also provide its expert statement. For

purposes of this paragraph (i)(4), an

expert statement shall include a brief

statement of the opinions to be

expressed by the expert, the basis and

reasons therefor and any data or other

information that the witness considered

in forming her opinions.

(ii) Any defendant in an Accelerated

Docket proceeding that intends to rely

on expert testimony shall identify its

expert witnesses in the information

designation required by § 1.724(f)(1).

Such a defendant shall provide its

expert statement with its § 1.733(i)(4),

pre-status-conference filing.

(iii) Any complainant in an

Accelerated Docket proceeding that

intends to rely on previously

undisclosed expert testimony to rebut

any portion of the defendant’s case shall

identify the expert and provide the

appropriate expert statement at the

initial status conference.

(iv) Expert witnesses shall be subject

to deposition in Accelerated Docket

proceedings under the same rules and

limitations applicable to fact witnesses.

9. Section 1.730 is revised to read as

follows:

§ 1.730 The Common Carrier Bureau’s

Accelerated Docket.

(a) Parties to formal complaint

proceedings within the responsibility of

the Common Carrier Bureau (see § 0.291

of this chapter) may request inclusion

on the Bureau’s Accelerated Docket. As

set out in §§ 1.720—1.736, proceedings

on the Accelerated Docket are subject to

shorter pleading deadlines and certain

other procedural rules that do not apply

to other formal complaint proceedings

before the Common Carrier Bureau.

(b) Any party that contemplates filing

a formal complaint may submit a

request to the Chief of the Common

Carrier Bureau’s Enforcement Division,

either by phone or in writing, seeking

inclusion of its complaint, once filed, on

the Accelerated Docket. In appropriate

cases, Commission staff shall schedule

and supervise pre-filing settlement

negotiations between the parties to the

dispute. If the parties do not resolve

their dispute and the matter is accepted

for handling on the Accelerated Docket,

the complainant shall file its complaint

with a letter stating that it has gained

admission to the Accelerated Docket.

When it files its complaint, such a

complainant shall also serve a copy of

its complaint on the Commission staff

that supervised the pre-filing settlement

discussions.

(c) Within five days of receiving

service of a complaint, any defendant in

a formal complaint proceeding may

submit by facsimile or hand delivery, to

the Chief of the Common Carrier

Bureau’s Enforcement Division, a

request seeking inclusion of its

proceeding on the Accelerated Docket.

Such a defendant contemporaneously

shall transmit, in the same manner, a

copy of its request to all parties to the

proceeding. A defendant submitting

such a request shall file and serve its

answer in compliance with the

requirements of § 1.724(k), except that

the defendant shall not be required to

serve with its answer the automatic

document production required by

§§ 1.724(k)(7) and 1.729(i)(1). In

proceedings accepted onto the

Accelerated Docket at a defendant’s

request, the Commission staff will

conduct supervised settlement

discussions as appropriate. After

accepting such a proceeding onto the

Accelerated Docket, Commission staff

will establish a schedule for the

remainder of the proceeding, including

the parties’ § 1.729(i)(1) automatic

production of documents.

(d) During the thirty days following

the effective date of these rules, any

party to a pending formal complaint

proceeding in which an answer has

been filed or is past due may seek

admission of the proceeding to the

Accelerated Docket by submitting a

request by facsimile or hand delivery to

the Chief of the Common Carrier

Bureau’s Enforcement Division, with

facsimile copies to all other parties to

the proceeding by the same mode of

transmission. If a pending proceeding is

accepted onto the Accelerated Docket,

Commission staff will conduct

supervised settlement discussions if

appropriate and establish a schedule for

the remainder of the proceeding,

including the parties’ § 1.729(i)(1)

automatic production of documents if

necessary.

(e) In determining whether to admit a

proceeding onto the Accelerated Docket,

Commission staff may consider factors

from the following, non-exclusive list:

(1) Whether it appears that the parties

to the dispute have exhausted the

reasonable opportunities for settlement

during the staff-supervised settlement

discussions.

(2) Whether the expedited resolution

of a particular dispute or category of

disputes appears likely to advance

competition in the telecommunications

market.

(3) Whether the issues in the

proceeding appear suited for decision

under the constraints of the Accelerated

Docket. This factor may entail, inter

alia, examination of the number of

distinct issues raised in a proceeding,

the likely complexity of the necessary

discovery, and whether the complainant

bifurcates any damages claims for

decision in a separate proceeding. See

§ 1.722(b).

(4) Whether the complainant states a

claim for violation of the Act, or

Commission rule or order that falls

within the Commission’s jurisdiction.

(5) Whether it appears that inclusion

of a proceeding on the Accelerated

Docket would be unfair to one party

because of an overwhelming disparity in

the parties’ resources.

(6) Such other factors as the

Commission staff, within its substantial

discretion, may deem appropriate and

conducive to the prompt and fair

adjudication of complaint proceedings.

(f) 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.

(g) Minitrials.

(1) In Accelerated Docket

proceedings, the Commission may

conduct a minitrial, or hearing-type

proceeding, as an alternative to

requiring that parties submit briefs in

support of their cases. Minitrials
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41449

typically will take place between 40 and

45 days after the filing of the complaint.

A Commission Administrative Law

Judge (‘‘ALJ’’) typically will preside at

the minitrial, administer oaths to

witnesses, and time the parties’

presentation of their cases. In

consultation with the Commission staff,

the ALJ will rule on objections or

procedural issues that may arise during

the course of the minitrial.

(2) Before a minitrial, each party will

receive a specific time allotment in

which it may present evidence and

make argument during the minitrial.

The ALJ or other Commission staff

presiding at the minitrial will deduct

from each party’s time allotment any

time that the party spends presenting

either evidence or argument during the

proceeding. The presiding official shall

have broad discretion in determining

any time penalty or deduction for a

party who appears to be intentionally

delaying either the proceeding or the

presentation of another party’s case.

Within the limits imposed by its time

allotment, a party may present evidence

and argument in whatever manner or

format it chooses, provided, however,

that the submission of written testimony

shall not be permitted.

(3) Three days before a minitrial, each

party to a proceeding shall serve on all

other parties a copy of all exhibits that

the party intends to introduce during

the minitrial and a list of all witnesses,

including expert witnesses, that the

party may call during the minitrial.

Service of this material shall be

accomplished either by hand or by

facsimile transmission. Objections to

any exhibits or proposed witness

testimony will be heard before the

beginning of the minitrial.

(4) No party will be permitted to call

as a witness in a minitrial, or otherwise

offer evidence from, an individual in

that party’s employ, unless the

individual appears on the party’s

information designation (see

§§ 1.721(a)(10)(i) or 1.724(f)(1)) with a

general description of the issues on

which she will offer evidence. No party

will be permitted to present expert

evidence unless the party has complied

fully with the expert-disclosure

requirements of § 1.729(i)(4). The

Commission may permit exceptions to

the rules in this paragraph (g)(4) for

good cause shown.

(5) Two days before the beginning of

the minitrial, parties shall file proposed

findings of fact and conclusions of law.

These submissions shall not exceed 40

pages per party. Within three days after

the conclusion of the minitrial, parties

may submit revised proposed findings

of fact and conclusions of law to meet

evidence introduced or arguments

raised at the minitrial. These

submissions shall not exceed 20 pages

per party.

(6) The parties shall arrange for the

stenographic transcription of minitrial

proceedings so that transcripts are

available and filed with the Commission

no more than three days after the

conclusion of the minitrial. Absent an

agreement to the contrary, the cost of

the transcript shall be shared equally

between the parties to the proceeding.

(h) 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 those

Accelerated Docket proceedings which

raise issues that may not be decided on

delegated authority (see 47 U.S.C.

155(c)(1); 47 CFR 0.291(d)), the staff

decision issued after the minitrial 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 may do so

by filing comments challenging the

decision within 15 days of its release by

the Commission’s Office of Public

Affairs. (Compare § 1.4(b)(2).)

Opposition comments may be filed

within 15 days of the comments

challenging the decision; reply

comments may be filed 10 days

thereafter and shall be limited to issues

raised in the opposition comments.

(i) 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.

10. Section 1.733 is amended by

revising paragraphs (a) introductory text

and (b) and adding paragraph (i) to read

as follows:

§ 1.733 Status conference.

(a) In any complaint proceeding, the

Commission may, in its discretion,

direct the attorneys and/or the parties to

appear before it for a status conference.

Unless otherwise ordered by the

Commission, and with the exception of

Accelerated Docket proceedings,

governed by paragraph (i) of this

section, an initial status conference

shall take place, at the time and place

designated by the Commission staff, ten

business days after the date the answer

is due to be filed. A status conference

may include discussion of:

* * * * *

(b)(1) Subject to paragraph (i) of this

section governing Accelerated Docket

proceedings, 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

(vi) In a 47 U.S.C. 271(d)(6)(B)

proceeding, whether or not the parties

agree to waive the 47 U.S.C. 271(d)(6)(B)

90-day resolution deadline.

(2) Subject to paragraph (i) of this

section governing Accelerated Docket

proceedings, parties shall submit a joint

statement of all proposals agreed to and

disputes remaining as a result of such

meeting to Commission staff at least two

business days prior to the scheduled

initial status conference.

* * * * *

(i) Accelerated Docket Proceedings.

(1) In Accelerated Docket

proceedings, the initial status

conference will be held 10 days after the

answer is due to be filed.

(2) Prior to the initial status

conference, the parties shall confer,

either in person or by telephone, about:

(i) Discovery to which they can agree;

(ii) Facts to which they can stipulate;

and

(iii) Factual and legal issues in

dispute.

(3) Two days before the status

conference, parties shall submit to

Commission staff a joint statement of:

(i) The agreements that they have

reached with respect to discovery;

(ii) The facts to which they have

agreed to stipulate; and

(iii) The disputed facts or legal issues

of which they can agree to a joint

statement.

(4) Two days before the status

conference, each party also shall submit

to Commission staff a separate statement

which shall include, as appropriate, the

party’s statement of the disputed facts

and legal issues presented by the

complaint proceeding and any

additional discovery that the party

seeks. A complainant that wishes to

reply to a defendant’s affirmative

defense shall do so in its pre-statusconference filing. To the extent that this

filing contains statements replying to an

affirmative defense, the complainant

shall include, and/or serve with the

statement, the witness information and

documents required in § 1.726(g)(3)–(4).

A defendant that intends to rely on
41450 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

expert evidence shall include its expert

statement in its pre-status conference

filing. (See § 1.729(i)(4)(ii).)

[FR Doc. 98–20745 Filed 8–3–98; 8:45 am]

BILLING CODE 6712–01–P

ENVIRONMENTAL PROTECTION

AGENCY

48 CFR Parts 1511, 1515, and 1552

[FRL–6135–5]

Acquisition Regulation: Administrative

Amendments

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency (EPA) is adopting as final an

interim rule that amended the EPA

Acquisition Regulation (EPAAR) (48

CFR Chapter 15) to include a

requirement that any report prepared

under an Agency contract identify the

contract under which it was prepared

and the name of the contractor who

prepared the report, and to make an

administrative change in the approval

levels for Source Selection.

DATES: This final rule is effective on

August 4, 1998.

FOR FURTHER INFORMATION CONTACT:

Louise Senzel, U.S. Environmental

Protection Agency, Office of Acquisition

Management (3802R), 401 M Street, SW,

Washington, D.C. 20460, Telephone:

(202) 564–4367.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule includes a requirement

that any report prepared under an

Agency contract identify the contract

under which it was prepared and the

name of the contractor who prepared

the report as required by section 411 of

Public Law 105–65, October 27, 1997,

and makes an administrative change in

the approval levels for Source Selection.

Section 411 of P.L. 105–65 (EPA’s

appropriation act) states ‘‘except as

otherwise provided by the law, no part

of any appropriation contained in this

Act shall be obligated or expended by

any executive agency, as referred to in

the Office of Federal Procurement

Policy Act (41 U.S.C. 401 et. seq), for a

contract for services unless such

executive agency: (1) has awarded and

entered into such contract in full

compliance with such Act and the

regulations promulgated thereunder;

and (2) requires any report prepared

pursuant to such contract, including

plans, evaluations, studies, analyses and

manuals, and any report prepared by the

agency which is substantially derived

from or substantially includes any

report pursuant to such contract, to

contain information concerning: (A) the

contract pursuant to which the report

was prepared; and (B) the contractor

who prepared the report to such

contract.’’ Because immediate

compliance was essential for EPA

contracting activities, urgent and

compelling circumstances existed that

made it impracticable for EPA to

promulgate this rule using notice and

comment procedures. Therefore,

pursuant to 41 U.S.C. § 418b(d), EPA

promulgated these revisions on an

interim basis and provided for a public

comment period of 60 days from the

date on which this rule was published,

March 4, 1998.

Only one public comment was

received. The comment suggested many

more detailed requirements for

submission of reports in paper and other

electronic or information technology

media, distribution requirements, and

publication requirements. After

considering the comment received, no

change was made because we believe

that the level of specificity of these

requirements should be considered on a

case-by-case basis for a particular

contract action and not specified as a

standard requirement for all contracts.

B. Executive Order 12866

The final rule is not a significant

regulatory action for the purposes of

Executive Order 12866; therefore, no

review was required by the Office of

Information and Regulatory Affairs

within the Office of Management and

Budget (OMB).

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because this final rule does

not contain information collection

requirements that require the approval

of OMB under the Paperwork Reduction

Act of 1980 (44 U.S.C. 3501 et seq.)

D. Regulatory Flexibility Act

The EPA certifies that this final rule

does not exert a significant economic

impact on a substantial number of small

entities. The requirements to contractors

under the rule impose no reporting,

record keeping, or any compliance

costs.

E. Unfunded Mandates

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess their

regulatory actions on State, local, and

tribal governments, and the private

sector. This final rule does not contain

a Federal mandate that may result in

expenditures of $100 million or more

for State, local, and tribal governments,

in the aggregate, or the private sector in

one year. Any private sector costs for

this action relate to paperwork

requirements and associated

expenditures that are far below the level

established for UMRA applicability.

Thus, the rule was not subject to the

requirements of sections 202 and 205 of

the UMRA.

F. Submission to Congress and the

General Accounting Office

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives and

the Comptroller General of United

States prior to publication of the rule in

the Federal Register. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

804(2).

G. Executive Order 13045

Protection of Children from

Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997),

applies to any rule that: (1) is

determined to be ‘‘economically

significant’’ as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

This rule is not subject to E.O. 13045

because it is not an economically

significant rule as defined by E.O.

12866, and because it does not involve

decisions on environmental health or

safety risks.

List of Subjects in 48 CFR Parts 1511,

1515, and 1552

Government procurement.

Authority: The provisions of this

regulation are issued under 5 U.S.C. 301; Sec.

205(c), 63 Stat. 390, as amended, 40 U.S.C.

486(c).