[Federal Register Volume 87, Number 98 (Friday, May 20, 2022)]
[Rules and Regulations]
[Pages 30836-30838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10587]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 27

[WTB Docket No. 21-333; DA 22-300; FR ID 86867]


Procedures for Appeals of Relocation Payment Clearinghouse 
Decisions

AGENCY: Federal Communications Commission.

ACTION: Final action.

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SUMMARY: In this document, the Wireless Telecommunications Bureau (WTB 
or Bureau) establishes procedures for the filing and processing of 
challenges to decisions made by the C-band Relocation Payment 
Clearinghouse (Clearinghouse) pursuant to the Expanding Flexible Use of 
the 3.7 to 4.2 GHz Band, Report and Order and Proposed Modification 
(3.7 GHz Report and Order). This document clarifies that before the 
Bureau will consider an appeal of a Clearinghouse decision, relevant 
parties must first file an objection with the Clearinghouse as required 
by the Federal Communications Commission's rules and pursuant to the 
process established in the Clearinghouse Dispute Resolution Plan (RPC 
DRP). The Bureau describes the two possible paths pursuant to which an 
appeal of a Clearinghouse decision can be made to the Bureau, depending 
on which party or parties submit a timely notice of objection with the 
Clearinghouse in this document.

DATES: May 20, 2022.

ADDRESSES: All documents must be filed in WT Docket No. 21-333, 3.7-4.2 
GHz Band Transition Clearinghouse Dispute Referrals and Appeals, in the 
Commission's Electronic Comment Filing System (ECFS), available at 
http://www.fcc.gov/ecfs. Parties who choose to file by paper must file 
an original and one copy of each filing. Filings can be sent by 
commercial courier or by the U.S. Postal Service. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission. Commercial deliveries (other than 
U.S. Postal Service Express Mail and Priority Mail) must be sent to 
9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service 
First-Class, Express, and Priority mail must be addressed to 45 L ST 
NE, Washington, DC 20554. Effective March 19, 2020, and until further 
notice, the Commission no longer accepts any hand or messenger 
delivered filings. This is a temporary measure taken to help protect 
the health and safety of individuals, and to mitigate the transmission 
of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window 
and Change in Hand-Delivery Policy, Public Notice, DA 20-304 (March 19, 
2020) https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changeshand-delivery-policy. To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#41272222747175012722226f262e37"><span class="__cf_email__" data-cfemail="a6c0c5c5939692e6c0c5c588c1c9d0">[email protected]</span></a> or call the 
Consumer & Government Affairs Bureau at 202-418-0530 (voice, 202-418-
0432 (tty).

FOR FURTHER INFORMATION CONTACT: Susan Mort, Wireless 
Telecommunications Bureau, at <a href="/cdn-cgi/l/email-protection#9bc8eee8faf5b5d6f4e9efdbfdf8f8b5fcf4ed"><span class="__cf_email__" data-cfemail="b3e0c6c0d2dd9dfedcc1c7f3d5d0d09dd4dcc5">[email protected]</span></a> or 202-418-2429.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
document, Public Notice, in WT Docket No. 21-333; DA 22-300, released 
on March 21, 2022. The complete text of this document is available on 
the Commission's website at https://www.fcc.gov/document/wtb-announces-appeal-procedures-c-band-clearinghouse-decisions.

Paperwork Reduction Act

    This document does not contain new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. In addition, therefore, it does not contain 
any new or modified information collection burden for small business 
concerns with fewer than 25 employees, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).

Congressional Review Act

    The Commission will not send a copy of this document to Congress 
and the Government Accountability Office pursuant to the Congressional 
Review Act, see 5 U.S.C. 801(a)(1)(A), because the adopted action is an 
action of particular applicability.

Synopsis

    With this document, the Wireless Telecommunications Bureau (WTB or 
Bureau) establishes procedures for the filing and processing of 
challenges to decisions made by the 3.7-4.2 GHz (C-band) Relocation 
Payment Clearinghouse (Clearinghouse).
    In the 3.7 GHz Report and Order (85 FR 22804, April 23, 2020), the 
Commission found that selecting a single, independent clearinghouse to 
oversee cost-related aspects of the C-band transition in a fair and 
transparent manner, subject to Commission oversight, would best serve 
the public interest. Among its duties set forth by the Commission, the

[[Page 30837]]

Clearinghouse is responsible for making initial determinations about 
the reasonableness of transition-related cost reimbursement claims. The 
Clearinghouse also apportions costs among 3.7 GHz Service Licensees and 
distributes payments to claimants that incur compensable costs. The 3.7 
GHz Report and Order also specified that the Clearinghouse will serve 
``in an administrative role and in a function similar to a special 
master in a judicial proceeding'' and ``may mediate any disputes 
regarding cost estimates or payments that may arise in the course of 
band reconfiguration; or refer the disputant parties to alternative 
dispute resolution fora.'' Any unresolved issues relating to 
Clearinghouse decisions may be appealed to the Bureau.
    This document sets forth the procedures by which eligible parties 
may appeal Clearinghouse decisions to the Bureau. As an initial matter, 
we clarify that before the Bureau will consider any appeal, the 
relevant party or parties, whether an eligible incumbent claimant or 
eligible 3.7 GHz Service Licensee, must first timely file a notice of 
objection with the Clearinghouse as required by the Commission's rules 
and pursuant to the process established in the Clearinghouse Dispute 
Resolution Plan (RPC DRP). Interlocutory appeals, before a timely 
notice of objection is filed with the Clearinghouse, will not be 
considered by the Bureau.
    The RPC DRP identifies different scenarios and timeframes within 
which eligible parties must file a notice of objection. Specifically, 
the RPC DRP requires eligible incumbent claimants or eligible 3.7 GHz 
Service Licensees to file a notice of objection with the Clearinghouse 
within twenty (20) days of invoice issuance following Clearinghouse 
review of lump sum or reimbursement claims. Where the eligible 
incumbent claimant first files a notice of objection to the 
Clearinghouse's decision on its lump sum or reimbursement claim within 
the applicable twenty (20) day timeline, and an eligible 3.7 GHz 
Service Licensee also wishes to be a party to that objection, that 
eligible 3.7 GHz Licensee must itself file an objection within thirty 
(30) days of invoice issuance. We clarify that the same approach and 
timeline will apply in cases where the first notice of objection to a 
lump sum or reimbursement claim is filed by the eligible 3.7 GHz 
Service Licensee within the applicable twenty (20) day timeline and the 
eligible incumbent claimant wishes to be a party to that appeal. In 
such cases, that eligible incumbent claimant must itself file an 
objection with the Clearinghouse within thirty (30) days of invoice 
issuance. Where one or more eligible 3.7 GHz Service Licensees wish to 
dispute any type of payment or cost sharing decision by the 
Clearinghouse other than a lump sum or reimbursement claim, they must 
file an objection within twenty (20) days of statement or invoice 
issuance. We further clarify that any other eligible 3.7 GHz Service 
Licensee wishing to be a party to an objection of this type first filed 
by a different eligible 3.7 GHz Service Licensee must itself file an 
objection with the Clearinghouse within thirty (30) days of statement 
or invoice issuance.
    There are two possible paths pursuant to which an appeal of a 
Clearinghouse decision can be made to the Bureau, depending on which 
party or parties submit a timely notice of objection with the 
Clearinghouse. The first path is a single-party dispute where one 
eligible party (whether an incumbent claimant or 3.7 GHz Service 
Licensee) files a timely notice of objection with the Clearinghouse and 
no other eligible party elects to join by filing its own timely notice 
of objection with the Clearinghouse. The second path is a multi-party 
dispute where more than one eligible party files a timely notice of 
objection regarding the same determination with the Clearinghouse, and 
the mediation and arbitration provisions in Sec.  27.1421(b) of the 
Commission's rules have already been satisfied (47 CFR 1421(b)). For 
example, a multi-party dispute could involve both an eligible incumbent 
claimant or one or more eligible 3.7 GHz Service Licensees in the case 
of lump sum or reimbursement claim review, or multiple eligible 3.7 GHz 
Service Licensees where the apportionment of relocation costs is at 
issue. Below, we detail the specific procedures applicable to each 
path. In all cases, the requirements (including deadlines) of the 3.7 
GHz Report and Order and this document, and any other requirements 
established by the Commission or WTB, must be satisfied before the 
Bureau will consider an appeal.
    Single-Party Disputes: If an eligible incumbent claimant or 
eligible 3.7 GHz Service Licensee submits a timely objection to the 
Clearinghouse that is not joined by any other eligible party, the 
following process applies:
    1. The appealing party must directly submit a written appeal to the 
Bureau seeking review of the Clearinghouse's decision no later than 
thirty (30) days from the date any other eligible party fails to file a 
timely notice of objection with the Clearinghouse. While the 
Clearinghouse should provide notice to the appealing party that no 
other eligible party has joined its dispute within three (3) business 
days of such event, we clarify that the appealing party must directly 
file a written appeal to the Bureau by the requisite thirty (30) day 
deadline in order for its appeal to be considered by the Bureau.
    2. The burden of proof lies on the appealing party to demonstrate 
in its appeal that the Clearinghouse decision was incorrect. Appealing 
parties bear responsibility for their costs associated with an appeal, 
none of which are reimbursable transition expenses.
    3. The Bureau will issue regular public notices setting pleading 
cycles for any single-party appeals received in a given week and 
assigning file numbers to each appeal.
    4. The Clearinghouse will automatically be joined as the opposing 
party to any such appeal and have ten (10) days from the date of any 
such public notice to respond, including the submission of any 
decisional paperwork or supporting materials.
    5. The appealing party will have five (5) days thereafter for any 
reply. Filings by third parties are not permitted.
    6. All pleadings and documentation relating to an appeal shall be 
submitted electronically, using the Commission's Electronic Comment 
Filing System (ECFS) in WT Docket No. 21-333, with a copy thereof 
served electronically on the Clearinghouse as opposing party. These 
pleadings and documents must also comply with Sec.  1.49 of the 
Commission's rules (47 CFR 1.49).
    7. The first page of any pleading or other document filed by a 
party shall be captioned with the name and address of the parties and 
the file number assigned by the Bureau.
    8. Any party may request confidential treatment of any document, or 
portion thereof, pursuant to Sec.  0.459 of the Commission's rules (47 
CFR 0.459).
    9. The Bureau may, at its discretion, designate the matter for an 
evidentiary hearing before an Administrative Law Judge, making the 
Enforcement Bureau a party.
    Multi-Party Disputes: If an eligible incumbent claimant or eligible 
3.7 GHz Service Licensee submits a timely objection to the 
Clearinghouse that is joined by at least one other eligible party, the 
following process applies:
    1. Following the filing of timely notices of objection by multiple 
eligible parties with the Clearinghouse, such parties must first 
satisfy the mediation and arbitration provisions in Sec.  27.1421(b) of 
the Commission's rules (47 CFR 27.1421(b)).
    2. Should any issues still remain unresolved and the parties have 
not

[[Page 30838]]

opted for arbitration pursuant to Section 9 of the RPC DRP, the 
Clearinghouse may refer the matter to the Bureau within ten (10) days 
of the recommended decision or advice of the Clearinghouse (qua 
mediator) or other mediator. Should all parties elect to seek non-
binding expedited arbitration, the same ten (10) day timeframe will be 
applicable to referral of the matter to the Bureau for review following 
issuance of a recommended decision or advice from the Clearinghouse 
(qua arbitrator) or other arbitrator.
    3. The Clearinghouse shall forward the entire record on any 
disputed issues, including such dispositions thereof that the 
Clearinghouse has considered. The Bureau will rely on the factual 
record before it as provided by the Clearinghouse.
    4. The burden of proof is on each party to demonstrate that their 
view is correct. All eligible parties that filed timely notices of 
objection with the Clearinghouse and participated in the underlying 
mediation or arbitration will automatically be parties to the appeal 
unless they opt out by providing written notice to the Bureau as set 
forth below. Appealing parties bear responsibility for their costs 
associated with an appeal, none of which are reimbursable transition 
expenses.
    5. The Bureau will issue a public notice upon receipt of the record 
from the Clearinghouse and assign a file number to the appeal.
    6. Each party has ten (10) days from the date of such public notice 
to either submit statements of position or opt out of the appeal by 
providing written notice to the Bureau. Statements shall comply with 
Sec.  1.49 of the Commission's rules (47 CFR 1.49). Statements must be 
strictly limited to issues raised in the course of mediation and/or 
arbitration and facts contained in the record. In their statements, 
parties may not introduce facts not contained in the record or 
introduce arguments on issues that were not presented to the mediator 
and/or arbitrator for consideration. Any material not conforming to 
these restrictions will be stricken. Reply filings and filings by third 
parties are not permitted. The Clearinghouse and any party to the 
appeal may file other documents or pleadings only if specifically 
requested by the Commission.
    7. Parties' statements, any record documents, and opt out notices 
shall be submitted electronically, using the Commission's ECFS in WT 
Docket No. 21-333, with a copy thereof served electronically on any 
other party to the appeal and the Clearinghouse. These documents must 
also comply with Sec.  1.49 of the Commission's rules (47 CFR 1.49).
    8. The first page of any statement or other document filed by a 
party shall be captioned with the name and address of the parties and 
the file number assigned by WTB.
    9. The Clearinghouse and any party to the appeal may request 
confidential treatment of any document, or portion thereof, pursuant to 
Sec.  0.459 of the Commission's rules (27 CFR 0.459).
    10. The Bureau may, at its discretion, designate the matter for an 
evidentiary hearing before an Administrative Law Judge, making the 
Enforcement Bureau a party.
    Following a Bureau decision in either a single-party or multi-party 
dispute, any party to a specific matter wishing to appeal that decision 
may do so by filing with the Commission, within ten (10) days of the 
effective date of the Bureau decision, a petition for de novo review, 
whereupon the Commission will set the matter for an evidentiary hearing 
before an Administrative Law Judge. Parties seeking de novo review of a 
decision by the Bureau are advised that, in the course of the 
evidentiary hearing, the Commission may require complete documentation 
relevant to any disputed matters, and, where necessary, and at the 
presiding judge's discretion, require expert engineering, economic, or 
other reports, or testimony, and that the cost of producing such 
documentation is not a reimbursable transition expense. Parties may 
therefore wish to consider possibly less burdensome and expensive means 
of resolving their disputes, such as alternative dispute resolution.
    A party to any appeal, whether single-party or multi-party, must 
certify in each submission that it attests to the truthfulness of the 
information it is providing and is making the submission in good faith. 
We remind parties of their obligations under Sec.  1.17 of the 
Commission's rules (47 CFR 1.17), and note that violators will be 
subject to potential enforcement action. The Bureau will determine a 
submission has been made in bad faith if, for example, the submitting 
party makes a statement that is false and if it finds the party did not 
use due diligence in providing information that is correct and not 
misleading to the Commission, including taking appropriate affirmative 
steps to determine the truthfulness of what is being submitted.
    Restricted Proceeding. This docket and each appeal is a 
``restricted'' proceeding under Sec.  1.1208 (47 CFR 1.1208) of the 
Commission's rules, and thus ex parte presentations to or from 
Commission decision-making personnel, including the Chief and staff of 
the Wireless Telecommunications Bureau, are prohibited, except as 
otherwise provided in the Commission's rules.

Federal Communications Commission.
Amy Brett,
Acting Chief of Staff, Wireless Telecommunications Bureau.
[FR Doc. 2022-10587 Filed 5-19-22; 8:45 am]
BILLING CODE 6712-01-P


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