[Federal Register Volume 79, Number 239 (Friday, December 12, 2014)]
[Rules and Regulations]
[Pages 73844-73848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-28736]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[GC Docket No. 10-44; FCC 14-179]


The Commission's Rules of Practice and Procedure Relating to the 
Filing of Formal Complaints and Pole Attachment Complaints

AGENCY: Federal Communications Commission.

ACTION: Final rules.

-----------------------------------------------------------------------

SUMMARY: This document amends procedural rules implemented by the 
Commission's 2011 determination that docketing and electronic filing be 
utilized in proceedings involving ``[n]ewly filed formal common carrier 
complaints and newly filed pole attachment complaints before the 
Enforcement Bureau.'' The rule changes also apply to future filings 
made in existing Section 208 formal complaints and pole attachment 
complaints. In addition, the amendments make a few procedural changes 
to existing Section 208 formal complaint and pole attachment complaint 
filing rules to create uniformity among them and ease of administration 
for parties and staff when initiating service of pleadings or filing 
confidential matters with the Commission. The rules further establish a 
single electronic inbox within Electronic Comment Filing System (ECFS) 
to handle the initial filing of the above-identified new complaints. 
Accepted complaints will receive a distinct ECFS docket number; 
rejected complaints will remain on ECFS but will be stored within the 
Inbox.

DATES: Effective January 12, 2015.

FOR FURTHER INFORMATION CONTACT: Tracy Bridgham, Enforcement Bureau, 
Federal Communications Commission, <a href="/cdn-cgi/l/email-protection#a1f5d3c0c2d88fe3d3c8c5c6c9c0cce1c7c2c28fc6ced7"><span class="__cf_email__" data-cfemail="8adef8ebe9f3a4c8f8e3eeede2ebe7caece9e9a4ede5fc">[email protected]</span></a>, (202) 418-
0967.

SUPPLEMENTARY INFORMATION: This document, adopted on November 5, 2014 
and released on November 12, 2014, GC Docket No. 10-44, FCC 14-179, 
revises several sections of 47 CFR part 1. The rule changes will 
facilitate and enhance public participation in Commission section 208 
formal complaint and section 224 pole attachment complaint proceedings, 
thereby making the Commission's decision-making process more efficient, 
modern, and transparent.
    Regulatory Flexibility Act. The actions taken in this Order do not 
require notice and comment, and therefore fall outside the Regulatory 
Flexibility Act of 1980, 5 U.S.C. 601(2); 603(a), as amended. We 
nonetheless anticipate that the rules we adopt today will not have a 
significant economic impact on a substantial number of small entities. 
As described above, the rules relate to our internal procedures and do 
not impose new substantive responsibilities on regulated entities. 
There is no reason to believe that operation of the revised rules will 
impose significant costs on parties to Commission proceedings. To the 
contrary, we take today's actions with the expectation that, overall, 
they will make dealings with the Commission quicker, easier, and less 
costly for entities of all sizes.
    Paperwork Reduction Act. Although the rule sections affected by 
this proceeding have information collections associated with them, the 
Office of Management and Budget has

[[Page 73845]]

determined that, under the Paperwork Reduction Act of 1995, Public Law 
104-13, 109 Stat. 163 (1995) (codified at 44 U.S.C. 3501 et seq.), 
these changes are not substantive in nature and will not result in any 
new or modified information collections.
    Accordingly, it is ordered, pursuant to sections 4(i), 4(j), 208, 
and 224 of the Communications Act of 1934, as amended, 47 U.S.C. 
154(i), 154(j), 208, 224, that the rules set forth are adopted, 
effective 30 days after the date of publication in the Federal 
Register.
    It is further ordered, pursuant to sections 4(i), 4(j), 208, and 
224 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 
154(j), 208, 224, and Sec.  1.3 of the Commission's rules, 47 CFR 1.3, 
that, effective upon release of this Order, Sec. Sec.  1.720, 1.721, 
1.727, 1.731, 1.732, 1.733, 1.734, 1.735, 1.1403, 1.1404, and 1.1408 of 
the Commission's rules, 47 CFR 1.720, 1.721, 1.727, 1.731, 1.732, 
1.733, 1.734, 1.735, 1.1403, 1.1404, 1.1408, are waived to the extent 
necessary to permit online electronic filing in accordance with the 
processes discussed in this Order. This waiver shall be effective ten 
days after release of this Order and until the effective date of the 
rule changes ordered in the previous paragraph.

List of Subjects in 47 CFR Part 1

    Administrative practice and procedure; Telecommunications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final rules

    For the reasons discussed in this preamble, the Federal 
Communications Commission amends 47 CFR part 1 as follows:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority citation for 47 CFR 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, 157, 225, 227, 303(r), 309, 1403, 1404, 1451, and 1452.


0
2. Section 1.720 is amended by revising paragraph (j) to read as 
follows:


Sec.  1.720  General pleading requirements.

* * * * *
    (j) Pleadings shall identify the name, address, telephone number, 
and email address for either the filing party's attorney or, where a 
party is not represented by an attorney, the filing party.

0
3. Section 1.721 is amended by revising paragraphs (a)(3) and (5) to 
read as follows:


Sec.  1.721  Format and content of complaints.

    (a) * * *
    (3) The name, address, telephone number, and email address of 
complainant's attorney, if represented by counsel;
* * * * *
    (5) Assertions based on information and belief are expressly 
prohibited unless made in good faith and accompanied by an affidavit 
explaining the basis for the complainant's belief and why the 
complainant could not reasonably ascertain the facts from the defendant 
or any other source;
* * * * *

0
4. Section 1.727 is revised to read as follows:


Sec.  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.
    (b) All dispositive motions shall contain proposed findings of fact 
and conclusions of law, with supporting legal analysis, relevant to the 
contents of the pleading. Motions to compel discovery must contain a 
certification by the moving party that a good faith attempt to resolve 
the dispute was made prior to filing the motion. All facts relied upon 
in motions must be supported by documentation or affidavits pursuant to 
the requirements of Sec.  1.720(c), except for those facts of which 
official notice may be taken.
    (c) Oppositions to motions may be filed and served within five 
business days after the motion is filed and served and not after. 
Oppositions shall be limited to the specific issues and allegations 
contained in such motion; when a motion is incorporated in an answer to 
a complaint, the opposition to such motion shall not address any issues 
presented in the answer that are not also specifically raised in the 
motion. Failure to oppose any motion may constitute grounds for 
granting of the motion.
    (d) No reply may be filed to an opposition to a motion.
    (e) Motions seeking an order that the allegations in the complaint 
be made more definite and certain are prohibited.
    (f) Amendments or supplements to complaints to add new claims or 
requests for relief are prohibited. Parties are responsible, however, 
for the continuing accuracy and completeness of all information and 
supporting authority furnished in a pending complaint proceeding as 
required under Sec.  1.720(g).

0
5. Section 1.731 is revised to read as follows:


Sec.  1.731  Confidentiality of information produced or exchanged.

    (a) Any materials generated in the course of a formal complaint 
proceeding may be designated as proprietary by either party to the 
proceeding or a third party if the party believes in good faith that 
the materials fall within an exemption to disclosure contained in the 
Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(1) through (9). Any 
party asserting confidentiality for such materials must:
    (1) Clearly mark each page, or portion thereof, for which a 
proprietary designation is claimed. If a proprietary designation is 
challenged, the party claiming confidentiality shall have the burden of 
demonstrating, by a preponderance of the evidence, that the materials 
designated as proprietary fall under the standards for nondisclosure 
enunciated in the FOIA.
    (2) File with the Commission, using the Commission's Electronic 
Comment Filing System, a public version of the materials that redacts 
any proprietary information and clearly marks each page of the redacted 
public version with a header stating ``Public Version.'' The redacted 
document shall be machine-readable whenever technically possible. Where 
the document to be filed electronically contains metadata that is 
confidential or protected from disclosure by a legal privilege 
(including, for example, the attorney-client privilege), the filer may 
remove such metadata from the document before filing it electronically.
    (3) File with the Secretary's Office an unredacted hard copy 
version of the materials that contains the proprietary information and 
clearly marks each page of the unredacted confidential version with a 
header stating ``Confidential Version.'' The unredacted version must be 
filed on the same day as the redacted version.
    (4) Serve one hard copy of the filed unredacted materials and one 
hard copy of the filed redacted materials on the attorney of record for 
each party to the proceeding, or, where a party is not represented by 
an attorney, each party to the proceeding either by hand delivery, 
overnight delivery, or email, together with a proof of such service in 
accordance with the requirements of Sec. Sec.  1.47(g) and 1.735(f)(1) 
through (3);
    (b) Except as provided in paragraph (c) of this section, materials 
marked as proprietary may be disclosed solely to the following persons, 
only for use in prosecuting or defending a party to the complaint 
action, and only to the extent

[[Page 73846]]

necessary to assist in the prosecution or defense of the case:
    (1) Counsel of record representing the parties in the complaint 
action and any support personnel employed by such attorneys;
    (2) Officers or employees of the opposing party who are named by 
the opposing party as being directly involved in the prosecution or 
defense of the case;
    (3) Consultants or expert witnesses retained by the parties;
    (4) The Commission and its staff; and
    (5) Court reporters and stenographers in accordance with the terms 
and conditions of this section.
    (c) The Commission will entertain, subject to a proper showing 
under Sec.  0.459 of this chapter, a party's request to further 
restrict individuals' access to proprietary information. Pursuant to 
Sec.  0.459 of this chapter, the other parties will have an opportunity 
to respond to such requests. Requests and responses to requests may not 
be submitted by means of the Commission's Electronic Comment Filing 
System but instead must be filed under seal with the Office of the 
Secretary.
    (d) The individuals identified above in paragraph (b)(1) through 
(3) shall not disclose information designated as proprietary to any 
person who is not authorized under this section to receive such 
information, and shall not use the information in any activity or 
function other than the prosecution or defense in the case before the 
Commission. Each individual who is provided access to the information 
shall sign a notarized statement affirmatively stating that the 
individual has personally reviewed the Commission's rules and 
understands the limitations they impose on the signing party.
    (e) No copies of materials marked proprietary may be made except 
copies to be used by persons designated in paragraphs (b)(1) through 
(3) and (c) of this section. Each party shall maintain a log recording 
the number of copies made of all proprietary material and the persons 
to whom the copies have been provided.
    (f) Upon termination of the formal complaint proceeding, including 
all appeals and petitions, all originals and reproductions of any 
proprietary materials, along with the log recording persons who 
received copies of such materials, shall be provided to the producing 
party. In addition, upon final termination of the proceeding, any notes 
or other work product derived in whole or in part from the proprietary 
materials of an opposing or third party shall be destroyed.

0
6. Section 1.732 is amended by removing paragraph (e) and redesignating 
paragraphs (f) through (h) as (e) through (g) and revising them to read 
as follows:


Sec.  1.732  Other Required Written Submissions.

* * * * *
    (e) Initial briefs shall be no longer than twenty-five pages. Reply 
briefs shall be no longer than ten pages. Either on its own motion or 
upon proper motion by a party, the Commission staff may establish other 
page limits for briefs.
    (f) The Commission may require the parties to submit any additional 
information it deems appropriate for a full, fair, and expeditious 
resolution of the proceeding, including affidavits and exhibits.
    (g) The parties shall submit a joint statement of stipulated facts, 
disputed facts, and key legal issues no later than two business days 
prior to the initial status conference, scheduled in accordance with 
the provisions of Sec.  1.733(a).

0
7. Section 1.733 is amended by revising paragraphs (f)(1) and (2) to 
read as follows:


Sec.  1.733  Status conference.

* * * * *
    (f) * * *
    (1) Submit a joint proposed order memorializing the oral rulings 
made during the conference to the Commission by midnight, Eastern Time, 
on the business day following the date of the status conference, or as 
otherwise directed by Commission staff. In the event the parties in 
attendance cannot reach agreement as to the rulings that were made, the 
joint proposed order shall include the rulings on which the parties 
agree, and each party's alternative proposed rulings for those rulings 
on which they cannot agree. Commission staff will review and make 
revisions, if necessary, prior to signing and filing the submission as 
part of the record. The proposed order shall be filed using the 
Commission's Electronic Comment Filing System; or
    (2) Pursuant to the requirements of paragraph (e) of this section, 
submit to the Commission by midnight, Eastern Time, on the third 
business day following the status conference or as otherwise directed 
by Commission staff either:
* * * * *

0
8. Section 1.734 is amended by removing paragraph (d) and revising 
paragraph (c) to read as follows:


Sec.  1.734  Specifications as to pleadings, briefs, and other 
documents; subscription.

* * * * *
    (c) The original of all pleadings and other submissions filed by 
any party shall be signed by the party, or by the party's attorney. The 
signing party shall include in the document his or her address, 
telephone number, email address, and the date on which the document was 
signed. Copies should be conformed to the original. Unless specifically 
required by rule or statute, pleadings need not be verified. The 
signature of an attorney or party, in accordance with the requirements 
of Sec.  1.52, shall be a certificate that the attorney or party has 
read the pleading, motion, or other paper; that to the best of his or 
her knowledge, information, and belief formed after reasonable inquiry, 
it is well grounded in fact and is warranted by existing law or a good 
faith argument for the extension, modification, or reversal of existing 
law; and that it is not interposed solely for purposes of delay or for 
any other improper purpose.

0
9. Section 1.735 is revised to read as follows:


Sec.  1.735  Fee remittance; electronic filing; copies; service; 
separate filings against multiple defendants.

    (a) Complaints may generally be brought against only one named 
carrier; such actions may not be brought against multiple defendants 
unless the defendant carriers are commonly owned or controlled, are 
alleged to have acted in concert, are alleged to be jointly liable to 
complainant, or the complaint concerns common questions of law or fact. 
Complaints may, however, be consolidated by the Commission for 
disposition.
    (b) The complainant shall remit separately the correct fee either 
by check, wire transfer, or electronically, in accordance with part 1, 
subpart G (see Sec.  1.1106 of this chapter) and, shall file an 
original copy of the complaint, using the Commission's Electronic 
Comment Filing System, and, on the same day:
    (1) If the complaint is filed against a carrier concerning matters 
within the responsibility of the International Bureau (see Sec.  0.261 
of this chapter), serve, by email, a copy on the Chief, Policy 
Division, International Bureau; and
    (2) If a complaint is addressed against multiple defendants, pay a 
separate fee, in accordance with part 1, subpart G (see Sec.  1.1106), 
for each additional defendant.
    (c) The complainant shall serve the complaint by hand delivery on 
either the named defendant or one of the

[[Page 73847]]

named defendant's registered agents for service of process on the same 
date that the complaint is filed with the Commission in accordance with 
the requirements of paragraph (b) of this section.
    (d) Upon receipt of the complaint by the Commission, the Commission 
shall promptly send, by email, to each defendant named in the 
complaint, notice of the filing of the complaint. The Commission shall 
send, by email, to each defendant named in the complaint, a copy of the 
complaint. The Commission shall additionally send, by email, to all 
parties, a schedule detailing the date the answer and any other 
applicable pleading will be due and the date, time, and location of the 
initial status conference.
    (e) Parties shall provide hard copies of all submissions to staff 
in the Market Disputes Resolution Division of the Enforcement Bureau 
upon request.
    (f) All subsequent pleadings and briefs filed in any formal 
complaint proceeding, as well as all letters, documents, or other 
written submissions, shall be filed using the Commission's Electronic 
Comment Filing System. In addition, all pleadings and briefs filed in 
any formal complaint proceeding, as well as all letters, documents, or 
other written submissions, shall be served by the filing party on the 
attorney of record for each party to the proceeding, or, where a party 
is not represented by an attorney, each party to the proceeding either 
by hand delivery, overnight delivery, or email, together with a proof 
of such service in accordance with the requirements of Sec.  1.47(g). 
Service is deemed effective as follows:
    (1) Service by hand delivery that is delivered to the office of the 
recipient by 5:30 p.m., local time of the recipient, on a business day 
will be deemed served that day. Service by hand delivery that is 
delivered to the office of the recipient after 5:30 p.m., local time of 
the recipient, on a business day will be deemed served on the following 
business day;
    (2) Service by overnight delivery will be deemed served the 
business day following the day it is accepted for overnight delivery by 
a reputable overnight delivery service; or
    (3) Service by email that is fully transmitted to the office of the 
recipient by 5:30 p.m., local time of the recipient, on a business day 
will be deemed served that day. Service by email that is fully 
transmitted to the office of the recipient after 5:30 p.m., local time 
of the recipient, on a business day will be deemed served on the 
following business day.
    (g) Supplemental complaint proceedings. Supplemental complaints 
filed pursuant to Sec.  1.722 shall conform to the requirements set 
forth in this section, except that the complainant need not submit a 
filing fee, and the complainant may effect service pursuant to 
subsection (e) and (f) of this section rather than paragraph (c) of 
this section.

0
10. Section 1.1403 is amended by revising paragraph (d) to read as 
follows:


Sec.  1.1403  Duty to provide access; modifications; notice of removal, 
increase or modification; petition for temporary stay; and cable 
operator notice.

* * * * *
    (d) A cable television system operator or telecommunications 
carrier may file a ``Petition for Temporary Stay'' of the action 
contained in a notice received pursuant to paragraph (c) of this 
section within 15 days of receipt of such notice. Such submission shall 
not be considered unless it includes, in concise terms, the relief 
sought, the reasons for such relief, including a showing of irreparable 
harm and likely cessation of cable television service or 
telecommunication service, a copy of the notice, and certification of 
service as required by Sec.  1.1404(b). The named respondent may file 
an answer within 7 days of the date the Petition for Temporary Stay was 
filed. No further filings under this section will be considered unless 
requested or authorized by the Commission and no extensions of time 
will be granted unless justified pursuant to Sec.  1.46.
* * * * *

0
11. Section 1.1404 is amended by revising paragraph (a) to read as 
follows:


Sec.  1.1404  Complaint.

    (a) The complaint shall contain the name, address, telephone 
number, and email address of the complainant; name, address, telephone 
number, and email address of the respondent; and a verification (in 
accordance with the requirements of Sec.  1.52), signed by the 
complainant or officer thereof if complainant is a corporation, showing 
complainant's direct interest in the matter complained of. Counsel for 
the complainant may sign the complaint. Complainants may join together 
to file a joint complaint. Complaints filed by associations shall 
specifically identify each utility, cable television system operator, 
or telecommunications carrier who is a party to the complaint and shall 
be accompanied by a document from each identified member certifying 
that the complaint is being filed on its behalf.
* * * * *

0
12. Section 1.1408 is revised to read as follows:


Sec.  1.1408  Fee remittance; electronic filing; service; number of 
copies; form of pleadings; and proprietary materials.

    (a) The complainant shall remit separately the correct fee either 
by check, wire transfer, or electronically, in accordance with part 1, 
subpart G (see Sec.  1.1106) and, shall file an original copy of the 
complaint, using the Commission's Electronic Comment Filing System. The 
original of the response and reply, as well as all other written 
submissions, shall be filed with the Commission using the Commission's 
Electronic Comment Filing System. Service must be made in accordance 
with the requirements of Sec.  1.735(b), (c), (e), and (f).
    (b) All papers filed in the complaint proceeding must be drawn in 
conformity with the requirements of Sec. Sec.  1.49, 1.50, and 1.52.
    (c) Any materials generated in the course of a pole attachment 
complaint proceeding may be designated as proprietary by either party 
to the proceeding or a third party if the party believes in good faith 
that the materials fall within an exemption to disclosure contained in 
the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(1) through (9). 
Any party asserting confidentiality for such materials must:
    (1) Clearly mark each page, or portion thereof, for which a 
proprietary designation is claimed. If a proprietary designation is 
challenged, the party claiming confidentiality shall have the burden of 
demonstrating, by a preponderance of the evidence, that the materials 
designated as proprietary fall under the standards for nondisclosure 
enunciated in the FOIA.
    (2) File with the Commission, using the Commission's Electronic 
Comment Filing System, a public version of the materials that redacts 
any proprietary information and clearly marks each page of the redacted 
public version with a header stating ``Public Version.'' The redacted 
document shall be machine-readable whenever technically possible. Where 
the document to be filed electronically contains metadata that is 
confidential or protected from disclosure by a legal privilege 
(including, for example, the attorney-client privilege), the filer may 
remove such metadata from the document before filing it electronically.
    (3) File with the Secretary's Office an unredacted hard copy 
version of the materials that contains the proprietary information and 
clearly marks each page of the unredacted confidential version

[[Page 73848]]

with a header stating ``Confidential Version.'' The unredacted version 
must be filed on the same day as the redacted version.
    (4) Serve one hard copy of the filed unredacted materials and one 
hard copy of the filed redacted materials on the attorney of record for 
each party to the proceeding, or, where a party is not represented by 
an attorney, each party to the proceeding either by hand delivery, 
overnight delivery, or email, together with a proof of such service in 
accordance with the requirements of Sec. Sec.  1.47(g) and 1.735(f)(1) 
through (3) of this chapter;
    (d) Except as provided in paragraph (e) of this section, materials 
marked as proprietary may be disclosed solely to the following persons, 
only for use in prosecuting or defending a party to the complaint 
action, and only to the extent necessary to assist in the prosecution 
or defense of the case:
    (1) Counsel of record representing the parties in the complaint 
action and any support personnel employed by such attorneys;
    (2) Officers or employees of the opposing party who are named by 
the opposing party as being directly involved in the prosecution or 
defense of the case;
    (3) Consultants or expert witnesses retained by the parties;
    (4) The Commission and its staff; and
    (5) Court reporters and stenographers in accordance with the terms 
and conditions of this section.
    (e) The Commission will entertain, subject to a proper showing 
under Sec.  0.459 of this chapter, a party's request to further 
restrict access to proprietary information. Pursuant to Sec.  0.459 of 
this chapter, the other parties will have an opportunity to respond to 
such requests. Requests and responses to requests may not be submitted 
by means of the Commission's Electronic Comment Filing System but 
instead must be filed under seal with the Office of the Secretary.
    (f) The individuals identified in paragraphs (d)(1) through (3) of 
this section shall not disclose information designated as proprietary 
to any person who is not authorized under this section to receive such 
information, and shall not use the information in any activity or 
function other than the prosecution or defense in the case before the 
Commission. Each individual who is provided access to the information 
shall sign a notarized statement affirmatively stating that the 
individual has personally reviewed the Commission's rules and 
understands the limitations they impose on the signing party.
    (g) No copies of materials marked proprietary may be made except 
copies to be used by persons designated in paragraphs (d) and (e) of 
this section. Each party shall maintain a log recording the number of 
copies made of all proprietary material and the persons to whom the 
copies have been provided.
    (h) Upon termination of the pole attachment complaint proceeding, 
including all appeals and petitions, all originals and reproductions of 
any proprietary materials, along with the log recording persons who 
received copies of such materials, shall be provided to the producing 
party. In addition, upon final termination of the proceeding, any notes 
or other work product derived in whole or in part from the proprietary 
materials of an opposing or third party shall be destroyed.

[FR Doc. 2014-28736 Filed 12-11-14; 8:45 am]
BILLING CODE 6712-01-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>