Unfair Competitive Advantages; Enhancement of the Formal Complaint Process, 35826-35836 [2013-13824]

Agencies

• POSTAL REGULATORY COMMISSION

[Federal Register Volume 78, Number 115 (Friday, June 14, 2013)]
[Proposed Rules]
[Pages 35826-35836]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13824]


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POSTAL REGULATORY COMMISSION

39 CFR Parts 3030, 3032, and 3033

[Docket No. RM2013-4; Order No. 1739]


Unfair Competitive Advantages; Enhancement of the Formal 
Complaint Process

AGENCY: Postal Regulatory Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commission is proposing rules to enhance the formal 
complaint process in cases involving alleged violations of a law that 
prohibits the Postal Service from taking certain actions that might 
provide it with unfair competitive advantages. The proposal provides an 
optional accelerated procedure that allows for adjudication of this 
type of complaint within 90 days. The Commission invites public comment 
on the proposal.

DATES: Comments are due: July 29, 2013. Reply comments are due: August 
28, 2013.

ADDRESSES: Submit comments electronically via the Commission's Filing 
Online system at https://www.prc.gov. Those who cannot submit comments 
electronically should contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section by telephone for advice on filing 
alternatives.

FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel, 
at 202-789-6820.

SUPPLEMENTARY INFORMATION:

I. Introduction
II. Substantive Provisions
III. Procedural Provisions
IV. Section-by-Section Analysis
V. Public Representative
VI. Ordering Paragraphs

[[Page 35827]]

I. Introduction

    The Commission is proposing rules to govern complaints alleging 
violations of 39 U.S.C. 404a. Section 404a(a) precludes the Postal 
Service from: (1) Establishing regulations that have the effect of 
harming competition; (2) compelling private entities to disclose 
information about their intellectual property; and (3) using 
information obtained from a person without their consent and then 
offering any postal product that uses or is based on such information.
    Persons believing that the Postal Service is not complying with the 
section 404a(a) restrictions may file a complaint with the Commission. 
39 U.S.C. 3662(a). The Commission's current complaint procedures are 
found in 39 CFR part 3030. These proposed rules would supplement the 
current complaint procedures and work in conjunction with the current 
rules. Proposed part 3032 would create substantive rules that implement 
the statutory prohibitions found in 39 U.S.C. 404a. It would enhance 
the discovery process by allowing complainants to utilize depositions.
    Part 3033 proposes to create an optional accelerated procedure 
designed to have the Commission adjudicate certain types of 39 U.S.C. 
404a complaints in 90 days. The Commission is concerned that, at least 
for some businesses, Postal Service violations of section 404a--whether 
through abuse of its governmental regulatory authority, improperly 
requiring parties to divulge intellectual property, or inappropriately 
obtaining information--could cause irreparable harm and threaten the 
livelihood of certain companies or individuals. Prolonged litigation 
might not be financially viable even if the complainant were to 
ultimately succeed. This would leave such parties without effective 
recourse and frustrate the purpose of section 404a. These proposed 
rules address this concern by providing a mechanism for prompt 
complaint resolution. This should benefit both the complainant and the 
Postal Service because prompt resolution will avoid the uncertainty and 
lack of finality that occurs in a long, drawn out, formal trial-type 
proceeding. The proposed rules afford parties raising claims that the 
Postal Service violated 39 U.S.C. 404a with an alternative to more 
prolonged litigation.
    Below, the Commission discusses the proposed rules with respect to 
complaints alleging violations of 39 U.S.C. 404a. Part II presents a 
more thorough discussion and foundation for the issues raised in this 
docket by the Commission's proposed substantive rules found in proposed 
part 3032. Part III discusses the foundations and major issues of the 
Commission's proposed procedural rules found in proposed part 3033 and 
the procedural deposition rule of part 3032. Part IV provides a 
section-by-section analysis of each proposed new rule. The proposed 
rules are set forth at the end of this Notice.
    Comments by interested persons are due no later than 45 days from 
the date of publication in the Federal Register. Reply comments are due 
no later than 75 days from the date of publication in the Federal 
Register.

II. Substantive Provisions

    In this part, the Commission explains the derivation of the 
substantive provisions of its proposed 39 U.S.C. 404a rules. It begins 
with the text of the statute. Unless otherwise expressly authorized by 
law, 39 U.S.C. 404a prohibits the Postal Service from taking the 
following actions:

     Establish[ing] any rule or regulation (including any 
standard) the effect of which is to preclude competition or 
establish the terms of competition unless the Postal Service 
demonstrates that the regulation does not create an unfair 
competitive advantage for itself or any entity funded (in whole or 
in part) by the Postal Service;
     Compel[ling] the disclosure, transfer, or licensing of 
intellectual property to any third party (such as patents, 
copyrights, trademarks, trade secrets, and proprietary information); 
or
     Obtain[ing] information from a person that provides (or 
seeks to provide) any product, and then offer any postal service 
that uses or is based in whole or in part on such information, 
without the consent of the person providing that information, unless 
substantially the same information is obtained (or obtainable) from 
an independent source or is otherwise obtained (or obtainable).

39 U.S.C. 404a(a). The Commission then explores the policy 
considerations of section 404a. Taking these policies into account, the 
Commission explains its proposed substantive 39 U.S.C. 404a regulations 
found in proposed part 3032.

A. Policy Guidance

    In evaluating the major policy objectives for implementing the 
substantive provisions of 39 U.S.C. 404a, the Commission considers the 
relevant legislative history of the Postal Accountability and 
Enhancement Act (PAEA), Public Law 109-435, 120 Stat. 3218 (2006) and 
its precursor bills.
    Section 404a was enacted as part of the PAEA. The PAEA is not 
accompanied by any conference reports or committee reports. However, 
several precursor bills contain a provision identical to that which was 
ultimately enacted as 39 U.S.C. 404a. Those precursor bills were 
explained in two Congressional Reports from the 108th and 109th 
Congresses--a Senate Committee Report and a House Committee Report.
    The Senate Committee on Government Affairs issued a written report 
on S. 2468, a precursor bill to the PAEA, during the 108th Congress. 
See Senate Report 108-318 (August 25, 2004).\1\ With respect to 
proposed 39 U.S.C. 404a, that committee report noted:
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    \1\ See also Postal Accountability and Enhancement Act, S. 2468, 
108th Congress (2004) (as reported by S. Comm. on Gov't Affairs, 
August 25, 2004).

    The new section 404[a] prohibits the Postal Service from: (1) 
Establishing rules or regulations which preclude competition or give 
the Postal Service an unfair competitive advantage; (2) compelling 
disclosure, transfer, or licensing of intellectual property; or (3) 
offering any product or service that makes use of information 
obtained from a person that provides or seeks to provide a product 
to the Postal Service unless the person has consented to such use or 
the information can be obtained from another source. The Regulatory 
Commission is required to prescribe regulations to carry out the 
purposes of this section, and the prohibitions will be enforced 
through the Commission's strengthened complaint process and 
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remedies, which include ordering rescission of any regulation.

Senate Report 108-318 (August 25, 2004) at 51. The Senate Committee 
Report also proclaimed that:

    S. 2468 contains a number of provisions the Committee believes 
are necessary to ensure that the Postal Service competes fairly with 
the private sector, particularly when offering products and services 
classified as competitive. The Postal Service, in our view, plays an 
important role in offering competitive products, even though a 
number of private sector businesses provide alternative services. We 
also believe, however, that steps need to be taken to level the 
playing field between the Postal Service and its competitors in the 
competitive product market. This is especially important now that 
this legislation gives the Postal Service significant new commercial 
flexibilities, particularly in the area of pricing. The language in 
Title IV ensures that the benefits the Postal Service gets by virtue 
of its status as a government entity do not give it an opportunity 
to abuse its new commercial freedom.

Id. at 27 (emphasis added). The Senate Report makes clear that ``the 
Postal Service is barred from using its rulemaking authority to put 
itself at a competitive advantage or put another party at a competitive 
disadvantage.'' Id. at 28.

[[Page 35828]]

    In addition to the earlier Senate Committee Report, the House of 
Representatives issued a House Committee Report explaining a precursor 
House bill to the PAEA.\2\ This precursor House bill contained a 
provision identical to that ultimately enacted later in the same 
Congress within the PAEA as 39 U.S.C. 404a. The related House Committee 
Report contained almost identical language to the earlier Senate Report 
cited above with respect to its explanation of the provision. Moreover, 
the Report states that ``unlike the unconstrained pricing flexibility 
recommended by the President's Commission for competitive products, the 
bill imposes limited but important controls to protect the public 
interest from unfair competition.'' House Report 109-66, Part I (April 
28, 2005) at 43. The House Committee Report explains that ``[u]nder the 
legislation, the Postal Service will compete on a level playing field, 
under many of the same terms and conditions as faced by its private 
sector competitors, albeit with stronger controls, oversight, and 
limitations in recognition of its governmental status.'' Id. at 44.
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    \2\ See House Report 109-66, Part I (April 28, 2005); see also 
Postal Accountability and Enhancement Act, H.R. 22, 109th Congress 
(2005) (as reported by H. Comm. on Gov't Reform, April 28, 2005).
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    These Committee reports demonstrate that the enactment of 39 U.S.C. 
404a sought to create a level playing field between the Postal Service 
and its competitors. There was a concern that without the prohibitions 
in 39 U.S.C. 404a the Postal Service may use its authority as an arm of 
the government to create an unfair competitive advantage for itself in 
areas where it competes with private enterprises. Accordingly, these 
proposed rules are designed to prohibit the Postal Service from 
unfairly using its status as a governmental entity to provide itself or 
third parties with a competitive advantage.

B. Proposed Substantive 39 U.S.C. 404a Regulations

    With these policy considerations and unfair competition principles 
in mind, the Commission turns to the substantive provisions of its 
proposed rules related to 39 U.S.C. 404a in proposed part 3032.
1. 39 U.S.C. 404a(a)(1)
    In drafting proposed part 3032, the Commission reviewed other 
federal agencies' regulations for resolving analogous complaints. The 
Commission found the Federal Communications Commission's (FCC) 
complaint regulations on program access rules to be instructive and 
informative with respect to its responsibilities under 39 U.S.C. 
404a(a)(1). See 47 U.S.C. 548(b); 47 CFR 76.1001-02.
    Similar to 39 U.S.C. 404a(a)(1), Public Law 102-385 (October 8, 
1992), the Cable Television Consumer Protection and Competition Act of 
1992 has a program access provision that declared it unlawful for 
certain communications vendors to ``engage in unfair methods of 
competition or unfair or deceptive acts or practices, the purpose or 
effect of which is to hinder significantly or prevent'' the 
distribution of certain programming. 47 U.S.C. 578(b). The FCC's 
program access rules are intended, among other things, to promote 
competition in the video distribution market by limiting the ability of 
vertically integrated cable companies and common carriers to withhold 
satellite programming from competitors in the distribution market. 
Cablevision Systems Corp. v. Federal Communications Commission, 649 
F.3d 695, 699 (D.C. Cir. 2011); see also 47 CFR 76.1004. Parties may 
file a complaint with the FCC to enforce these regulations. 47 U.S.C. 
548(c)(1); 47 CFR 76.1003.\3\
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    \3\ For example, in 2008, AT&T Services, Inc. (AT&T) filed an 
FCC program access complaint alleging that Cox Enterprises (Cox) 
violated the program access rules by failing to provide AT&T with 
access to live coverage of San Diego Padres baseball games. See AT&T 
Services, Inc. v. Cox, FCC Program Access Complaint, FCC Docket No. 
CSR-8066-P, September 11, 2008.
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    The Commission's proposed rules in part 3032 draw upon similarities 
to the FCC's statutory mandate and regulations regarding program access 
where appropriate. In drafting proposed part 3032, the Commission's 
proposed regulations seek to assign the burden of proof and burden of 
persuasion as set forth in each provision of 39 U.S.C. 404a.
    The Commission notes that to succeed on a claim under 39 U.S.C. 
404a(a)(1), the complainant must demonstrate that Postal Service action 
or inaction ``precludes competition,'' or ``establish[es] the terms of 
competition.'' Similarly, to successfully mount an affirmative defense 
under 39 U.S.C. 404a(a)(1), the statute requires the Postal Service to 
show that its action or inaction ``does not create an unfair 
competitive advantage.'' In its application, the Commission 
anticipates, as a matter of policy, drawing upon the similarities 
between these provisions in 39 U.S.C. 404a(a)(1) and precedent 
developed under federal statutes concerning unfair methods of 
competition.\4\
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    \4\ See, e.g.,15 U.S.C. 45 (prohibiting ``unfair methods of 
competition'').
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    Federal unfair competition claims are reviewed in two separate 
ways: Under a ``rule of reason'' analysis, or a ``per se'' analysis.\5\ 
Most commonly, claims of unfair competition are reviewed under the rule 
of reason analysis. This analysis focuses on whether the behavior 
unreasonably restrains competition. In making such a determination, the 
decision maker reviews the ``anticompetitive effects'' of the action. 
These anticompetitive effects must ``harm the competitive process and 
thereby harm consumers. . . . [H]arm to one or more competitors will 
not suffice.'' \6\ Just as in 39 U.S.C. 404a(a)(1) cases where the 
burden is on the complainant to show that the conduct ``precludes 
competition,'' or ``establish[es] the terms of competition,'' in 
federal unfair competition cases, the burden is on the plaintiff to 
demonstrate that the conduct has the requisite anticompetitive effect. 
Id.\7\ If such a showing is made, the defendant ``may proffer a 
`procompetitive justification' for its conduct.'' \8\ Similarly, under 
39 U.S.C. 404a(a)(1) cases, the Postal Service must show that its 
conduct ``does not create an unfair competitive advantage.''
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    \5\ The per se analysis does not allow potential positive 
effects on competition to be considered as a defense to the alleged 
anticompetitive behavior.
    \6\ United States v. Microsoft Corp., 253 F.3d 58 (D.C. Cir. 
2001).
    \7\ See generally Brooke Group, Ltd. v. Brown & Williamson 
Tobacco Corp., 509 U.S. 209 (1993) at 225-26.
    \8\ Microsoft, 253 F. 3d at 59 (D.C. Cir. 2001); Eastman Kodak 
Company v. Image Technical Services, Inc., 504 U.S. 451 (1992) at 
483.
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    In unfair methods of competition cases, the procompetitive 
justification must be ``a nonpretextual claim that its conduct is 
indeed a form of competition on the merits because it involves, for 
example, greater efficiency or enhanced consumer appeal--then the 
burden shifts back to the plaintiff to rebut that claim.'' \9\ If the 
defendant's procompetitive justification stands unrebutted, then the 
``plaintiff must demonstrate that the anticompetitive harm of the 
conduct outweighs the procompetitive benefit.'' Id.
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    \9\ Microsoft, 253 F. 3d at 59 (D.C. Cir. 2001).
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    Application of analogous precedent concerning claims of unfair 
competition will serve as useful guidance in adjudicating claims under 
39 U.S.C. 404a(a)(1).
    Proposed rule 3032.5 also clarifies that 404a(a)(1)'s use of the 
phrase ``rule or regulation (including any standard)'' includes other 
documents or policies

[[Page 35829]]

issued by the Postal Service when it is acting as a governmental 
entity. Such a reading is suggested, as a matter of policy, by the 
legislative history in the precursor bills which clarifies that 39 
U.S.C. 404a was enacted, in part, to keep the Postal Service from 
improperly using its governmental authority to stifle competition. 
Additionally, using the catch-all provision of ``other document or 
policies'' ensures that form is not elevated over substance. It would 
be inappropriate for the Postal Service to be able to avoid violations 
of 39 U.S.C. 404a by merely titling its governmental policies as 
``manuals'' or ``operating procedures'' as opposed to ``regulations'' 
or ``standards.''
2. 39 U.S.C. 404a(a)(2)
    In drafting the implementing regulation for 39 U.S.C. 404a(a)(2), 
the Commission attempts to ensure, by regulation, that parties 
attempting to do business or otherwise interact with the Postal Service 
will not be coerced into divulging their intellectual property to third 
parties. The proposed implementing regulation for 39 U.S.C. 404a(a)(2) 
ensures that parties' interactions with the Postal Service are shielded 
from third-party threats to their intellectual property. Third parties 
will be unable to use the Postal Service as a vehicle for obtaining 
their competitors' or potential competitors' intellectual property.
3. 39 U.S.C. 404a(a)(3)
    In drafting the implementing regulation for 39 U.S.C. 404a(a)(3), 
the Commission attempts to ensure, by regulation, that the Postal 
Service may not use information obtained from a party to offer a postal 
service based on such information without the party's consent. The 
party's consent must be informed. As an exception to this prohibition, 
the Postal Service may show that it has obtained substantially the same 
information from an independent source.

III. Procedural Provisions

    In this part, the Commission explains the derivation of the 
procedural provisions of its proposed 39 U.S.C. 404a rules. First, the 
Commission considers the relevant policy guidance that has shaped the 
proposed 39 U.S.C. 404a procedural regulations. Second, the Commission 
discusses the overall structure of these proposed procedural 
regulations.

A. Policy Guidance

    In determining how to give effect, procedurally, to the provisions 
of 39 U.S.C. 404a, the Commission draws upon its experience and that of 
other agencies tasked with similar responsibilities. The Commission 
also takes note of a recent executive order regarding agency 
regulations. Executive Order No. 13563, entitled ``Improving Regulation 
and Regulatory Review,'' requests that agencies review their 
regulations and consider how best to ``modify, streamline, expand or 
repeal them in accordance with what has been learned.'' E.O. 13563 at 
section 6 (January 18, 2011).\10\ In connection with that guidance, the 
Commission, as part of this rulemaking, considers how to streamline its 
complaint rules relating to section 404a complaints.
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    \10\ E.O. 13563 does not directly apply to the Postal Regulatory 
Commission. E.O. 13563 section 7(a). Nonetheless, the Office of 
Management and Budget has stated that independent agencies, such as 
the Commission, ``are encouraged to give consideration to all of its 
provisions, consistent with their legal authority.'' Memorandum M-
11-10 from Office of Management and Budget entitled ``Executive 
Order 13563, Improving Regulation and Regulatory Review'' at 6 
(February 2, 2011).
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    The Commission's initial PAEA complaint rules contemplate two types 
of complaints--those relating to broad postal policy matters and 
complaints relating to operational or service issues. See Docket No. 
RM2008-3, Order No. 101, Notice and Order of Proposed Rulemaking 
Establishing Rules for Complaints, August 21, 2008, at 6-9. Since the 
passage of the PAEA and the implementation of the Commission's PAEA 
complaint rules, the Commission has conducted one major complaint 
proceeding that raised issues relating to unfair competition: Docket 
No. C2009-1, GameFly Inc. (GameFly). Although the GameFly complaint did 
not directly raise issues related to 39 U.S.C. 404a, without changes to 
the Commission's procedural complaint rules, section 404a complaints 
would be adjudicated in a similar manner because they raise unfair 
competition issues. The Commission's experience with the GameFly 
complaint and others has provided valuable insight into identifying 
potential ways to accelerate resolution of complaints while still 
providing appropriate due process. Accordingly, the Commission proposes 
special procedural rules to provide for prompt, streamlined 
adjudication of section 404a complaints.
    With respect to other agencies' experiences, the Commission notes 
that in the Telecommunications Act of 1996, Congress mandated that the 
FCC ``expedite the processing of formal complaints,'' including those 
similar to the Commission's section 404a complaints.\11\ In response, 
the FCC adopted streamlined complaint procedures to provide a forum for 
prompt resolution of complaints. Id. at 1-2. Drawing upon that 
experience, the Commission proposes accelerated complaint procedures 
based in part on the FCC's revised formal complaint procedures. The 
Commission finds that many of the FCC's revised complaint procedures 
can be used by the Commission to accelerate 39 U.S.C. 404a complaints, 
while still preserving due process.
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    \11\ Amendment of Rules Governing Procedures to be Followed When 
Formal Complaints are Filed Against Common Carriers, 12 F.C.C.R. 
22497 (November 25, 1997).
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B. Proposed Procedural 39 U.S.C. 404a Regulations

    These proposed section 404a procedural rules are designed to work 
in conjunction with the Commission's general complaint rules currently 
found in 39 CFR Part 3030. They complement existing rules, but are 
tailored to the specific circumstances raised by section 404a. These 
complaint procedures are well suited to the circumstances of complaints 
alleging violations of the prohibited actions specified in section 
404a.
    As noted, the Commission is concerned that, at least for some 
businesses, Postal Service violations of section 404a could cause 
irreparable harm and threaten the livelihood of certain companies or 
individuals. These proposed rules address these concerns by providing a 
mechanism for prompt complaint resolution. Moreover, for the vast 
majority of issues expected to arise under 39 U.S.C. 404a, complainants 
should have the information and documentation needed to support their 
claims well in advance of filing a complaint.
1. Special Accelerated Procedures
    The proposed regulations implementing 39 U.S.C. 404a include 
regulations allowing for optional accelerated procedures for complaints 
alleging violations of 39 U.S.C. 404a. Under these accelerated 
procedures, a complainant can opt to have the Commission decide the 
case on the basis of only a complaint and answer, and in limited 
circumstances, a reply. As part of each pleading, participants are to 
file a complete statement of facts that set forth and support the facts 
demonstrating violation of 39 U.S.C. 404a. The accelerated procedural 
rules also contemplate allowing interested parties who could be 
directly impacted by a decision on the issues raised by the complaint, 
to intervene and argue their cases in a similar manner.

[[Page 35830]]

    In essence, these requirements are designed to elicit, as 
expeditiously as possible, all the information necessary for the 
Commission to make a determination as to whether the complaint is 
justified under section 3662(c). These proposed rules are an attempt to 
accelerate the adjudicatory process to the maximum extent feasible 
consistent with due process. As proposed, the rules allow the 
participants to fully develop their theories of the case, applicable 
legal requirements, and the facts while still permitting the Commission 
to respond rapidly to the issues raised by the complainant.
    Under these procedures, it is the Commission's intention to issue a 
final decision on the merits of a complaint filed using these 
accelerated procedures prior to the deadline in 39 U.S.C. 3662(b)(1) 
for making a finding that the complaint raises a material issue of fact 
or law; that is, within 90 days of the date the complaint is filed. As 
a result, if adopted as final rules, the Commission must strictly 
enforce all deadlines as set forth in the proposed rules. Failure to 
adhere to such deadlines may result in adverse action. The Commission's 
strong commitment to prompt resolution of accelerated complaints and 
their effective foreclosure of avenues for delaying litigation may 
foster and even encourage settlement or informal resolution of 
disputes.
    The proposed accelerated complaint and pleadings procedures require 
the participants to produce at the outset of the case all the material 
and evidence on which they seek to rely. This ensures that litigation 
delay tactics will be avoided and the Commission can promptly issue a 
decision. The use of these accelerated procedures is also expected to 
significantly decrease litigation costs due to the absence of a 
prolonged formal discovery process and hearing.
    The Commission does not anticipate the absence of discovery under 
these accelerated procedures to appreciably affect the complainant's 
ability to make a compelling case on the merits. For the vast majority 
of issues expected to arise under 39 U.S.C. 404a, complainants should 
have the information and documentation needed to support their claims 
well in advance of filing a complaint. For example, for complaints 
arising under section 404a(a)(1), the complainant should be in 
possession of the information and documents necessary to show how a 
Postal Service rule or regulation is causing competitive harm in the 
marketplace. Discovery from the Postal Service would not be expected to 
appreciably help the complainant demonstrate how the Postal Service's 
action causes competitive harm. The complainant is in the best position 
to directly establish such harm by reference to the effects the 
questionable rule or regulation has or will have on his or her business 
or other activities.
    Notwithstanding these substantial benefits, the Commission 
recognizes that the proposed accelerated procedures place additional 
burdens and due process limitations compared to those traditionally 
afforded to complainants under 39 CFR Part 3030. In particular, these 
accelerated procedures will require both the Postal Service and the 
complainant to present their cases for adjudication without discovery 
and under compressed time frames. They may also require participants to 
expend additional resources to meet the condensed schedules. These 
burdens are not insignificant.
    On balance, however, the Commission's initial analysis is that the 
additional burdens on the participants for complaints filed under the 
proposed accelerated procedures, while real, are justified and 
outweighed by the significant benefits of bringing the important issues 
raised in section 404a complaints to a prompt, potentially less costly 
resolution.
    This initial analysis could change, however, if for example, other 
meaningful benefits or burdens are identified. Consequently, the 
Commission is especially interested in commenters' views on its 
identification and balancing of the proposed benefits and burdens of 
these accelerated procedures. It would be helpful for commenters to 
address these topics in their submissions.
    It is important to highlight the fact that these accelerated 404a 
complaint procedures are proposed to be voluntary at the election of 
the complainant. This ensures that the complainant will have the option 
of either utilizing the accelerated complaint procedures or the typical 
complaint procedures. The Commission recognizes that some section 404a 
complainants may prefer the more thorough discovery process and 
Commission review that results from the Commission's traditional 
complaint procedures. Such actions may be preferable in those 
circumstances where the Postal Service is in possession of much of the 
information and documents necessary for a complainant to prove 
violations of 39 U.S.C. 404a. In such circumstances, the Commission's 
traditional complaint procedures, including their discovery options, 
may be better equipped to allow complainants to make their case before 
the Commission. The complainant will be in a good position to know 
whether the issues raised by the complaint are best suited for these 
proposed accelerated procedures or the traditional complaint procedures 
found in 39 CFR Part 3030.
    Given these possibilities, the Commission does not believe it is 
prudent, at the current time, to foreclose the traditional complaint 
route option for complaints raising issues under 39 U.S.C. 404a.
2. Depositions in Non-Accelerated Section 404a Complaints
    In order to streamline the discovery process for section 404a 
complaints that are not filed under the proposed accelerated 
procedures, the Commission is also proposing to allow depositions 
during the discovery phase of the complaint. Because section 404a 
complaints are expected to involve a limited number of participants, 
they would appear to be particularly well-suited for depositions. 
Depositions should allow participants to exchange information in a more 
efficient manner than the interrogatory procedures typical of the 
Commission's general rules of practice and procedure. Whereas, 
responses to interrogatories ordinarily take weeks, responses to 
questioning during depositions will result in immediate responses and 
allow for immediate follow up. This procedure should streamline 
Commission review by allowing participants to promptly narrow the 
issues for Commission review and decision.
    The Commission recognizes that depositions can prove to be costly. 
As such, the Commission's proposal is not to make depositions 
mandatory, but rather to allow an expanded opportunity for participants 
to engage in depositions in order to facilitate the exchange of 
information.

IV. Section-by-Section Analysis

    In this part, the Commission reviews the proposed rules, describing 
what each rule is designed to accomplish. The purpose of this section-
by-section analysis is to assist commenters in determining the nature 
of each proposed regulation and the rationale behind it. Each proposed 
section is discussed below.
    Section 3030.1 Applicability. The proposed changes to this section 
are designed to tie together the Commission's current complaint rules 
with proposed new parts 3032 and 3033

[[Page 35831]]

with respect to complaints filed under 39 U.S.C. 404a.
    Section 3032.1 Applicability. This proposed rule identifies the 
types of complaints that the Commission will review under part 3032. In 
particular, it states that only complaints alleging violations of 39 
U.S.C. 404a will be subject to the requirements of part 3032. 
Additionally, the rule recognizes that such complaints may be heard 
under the Commission's traditional procedural complaint rules in part 
3030 or the Commission's new proposed accelerated complaint procedures 
of part 3033. Subsection (b) makes clear that the rules under part 3032 
apply to only those portions of a complaint alleging violations of 
section 404a. Any remaining counts and complaint allegations will be 
reviewed under other applicable statutory and regulatory standards 
apart from part 3032.
    Section 3032.5 Unfair competition. This proposed rule sets forth 
the requirements for the Commission to find a complaint alleging a 
violation of 39 U.S.C. 404a(a)(1) to be justified. It also sets forth 
the requirements for the Postal Service's statutory affirmative 
defense. This section defines the term ``rule or regulation (including 
any standard)'' as used in the statute to include documents or policies 
issued by the Postal Service exercising its regulatory authority or 
otherwise acting as a governmental entity, as opposed to acting solely 
as a competitor or market participant. This reflects legislative 
history that Congress intended for section 404a(a)(1) to, in part, 
place a check on the Postal Service and keep it from using its 
authority as a regulator or governmental entity to harm the 
marketplace. See Senate Report 108-318 (``The language in Title IV 
ensures that the benefits the Postal Service gets by virtue of its 
status as a government entity do not give it an opportunity to abuse 
its new commercial freedom.''); Senate Report 108-318 (``[T]he Postal 
Service is barred from using its rulemaking authority to put itself at 
a competitive advantage or put another party at a competitive 
disadvantage.''); House Report 109-66 (``Under the legislation, the 
Postal Service will compete on a level playing field, under many of the 
same terms and conditions as faced by its private sector competitors, 
albeit with stronger controls, oversight, and limitations in 
recognition of its governmental status.'').
    Section 3032.6 Disclosure, transfer, and licensing of intellectual 
property. This proposed rule sets forth the requirements for the 
Commission to find a complaint alleging a violation of 39 U.S.C. 
404a(a)(2) to be justified. This section defines the term ``disclosure, 
transfer, or licensing of intellectual property'' to include actions 
that have adverse effects on the value of intellectual property. This 
prevents form from being elevated over substance and ensures that the 
Commission can remedy a violation of 39 U.S.C. 404a(a)(2) regardless of 
the means used to compel a party to provide its intellectual property 
to a third party.
    Section 3032.7 Unlawfully obtaining information. This proposed rule 
sets forth the requirements for the Commission to find a complaint 
alleging a violation of 39 U.S.C. 404a(a)(3) to be justified. It also 
sets forth the requirements for the Postal Service's statutory 
affirmative defenses. The section contains a provision establishing 
that the statutory affirmative defense of ``consent'' requires more 
than just a signature on a form that a party must sign before talking 
to the Postal Service. The consent must be informed and uncoerced. In 
determining whether consent is informed and uncoerced, the Commission 
draws upon the experience of the D.C. Bar Rule of Professional Conduct 
1.0 and its associated comments.
    The communication necessary to obtain consent will vary according 
to the circumstances. The Postal Service must make reasonable efforts 
to ensure that the party giving consent possesses information 
reasonably adequate to make an informed decision. Ordinarily, this will 
require communication that includes an explanation reasonably necessary 
to inform a party of their legal rights and obligations of the proposed 
course of conduct, and a discussion of the options and alternatives. In 
determining whether the information and explanation provided are 
reasonably adequate, relevant factors include the party's experience in 
legal matters generally and in making decisions of the type involved, 
and whether the party is independently represented by counsel in giving 
the consent. In all circumstances, the consent must be not only 
informed, but also uncoerced by the Postal Service or anyone working on 
the Postal Service's behalf.
    Section 3032.8 Statutorily authorized affirmative defense. This 
proposed rule sets forth the Postal Service's statutory affirmative 
defense that its violations of 39 U.S.C. 404a are justified because 
those actions are specifically authorized by law. This affirmative 
defense may be used with respect to alleged violations of either 39 
U.S.C. 404a(a)(1), (2), or (3). However, the Postal Service's statutory 
general and specific powers under 39 U.S.C. 401 and 404 are subject to 
the prohibitions of 39 U.S.C. 404a. See 39 U.S.C. 401 (``Subject to the 
provisions of section 404a, the Postal Service shall have the following 
general powers.''); 39 U.S.C. 404 (``Subject to the provisions of 
section 404a . . . the Postal Service shall have the following 
powers.''). Such statutory provisions provide that the Postal Service 
may not base any statutory affirmative defenses to alleged violations 
of 39 U.S.C. 404a(a) on the powers enumerated in 39 U.S.C. 401 and 404. 
However, this section does not preclude the Postal Service from arguing 
that a particular Postal Service regulation or other action (or 
inaction) does not have the requisite effect to violate 39 U.S.C. 
404a(a).
    Section 3032.15 Depositions in non-accelerated section 404a 
complaint proceedings. This proposed rule allows for the taking of 
depositions, in accordance with the Federal Rules of Civil Procedure, 
for section 404a complaints that are filed under the Commission's 
traditional complaint rules in part 3030. This rule is inapplicable 
until the Commission initiates a proceeding on the complaint, i.e., 
until the Commission finds that the complaint raises a material issue 
of fact or law. Without such a provision, the deposition process might 
be abused. This ensures that only complainants raising material issues 
of fact or law will subject the Postal Service to the time and expense 
of the discovery process. The Commission anticipates that allowing 
depositions will expedite the discovery process since responses to oral 
questions posed during depositions allow for immediate follow up. This 
is in contrast to the Commission's typical discovery process which does 
not result in responses for 2 weeks and often involves follow up. See 
39 CFR 3001.26. In proposing to adopt the deposition standard found in 
Federal Rule of Civil Procedure 30, the Commission anticipates that the 
deposition process should prove to be more like those routinely taken 
during proceedings in federal court rather than those taken in Docket 
No. C2008-3 pursuant to Commission rule 3001.33. Additionally, since 
section 404a complaints are expected to involve a limited number of 
participants, they would appear to be particularly well-suited for 
depositions. Logistically, depositions are more manageable when there 
are fewer participants conducting them.
    Section 3033.1 Applicability. This proposed rule makes clear that 
the choice to use the accelerated procedures of part 3033 exclusively 
rests with the complainant. It also states the types of

[[Page 35832]]

complaints eligible for the accelerated procedures of part 3033--those 
alleging violations of 39 U.S.C. 404a or associated regulatory 
requirements. Paragraph (b) ensures that a complaint filed under part 
3033 may only make claims arising under 39 U.S.C. 404a or associated 
regulatory requirements. Complaints arising under the same set of facts 
raising claims alleging violations of multiple statutory or regulatory 
requirements found in 39 U.S.C. 3662(a)--in addition to those related 
to 39 U.S.C. 404a--must be filed under part 3030.\12\ This eliminates 
the possibility of requiring the Postal Service to litigate two 
complaints (one accelerated and one non-accelerated) arising out of the 
same set of facts. It avoids the potential unfairness that would result 
if the Postal Service had to effectively divulge its litigation 
strategy at an early stage of a non-accelerated complaint through its 
filings in a related accelerated proceeding.
---------------------------------------------------------------------------

    \12\ Alternatively, complainants may have their 39 U.S.C. 404a 
claims heard under the accelerated procedures of part 3033 by 
waiving their other claims under other statutory or regulatory 
provisions.
---------------------------------------------------------------------------

    Paragraph (c) ensures that complaints filed under part 3033 are 
adjudicated under these rules. A complainant may not file a complaint 
under part 3033, withdraw the complaint, and then re-file it under 
3030. This eliminates the potential unfairness that would result if the 
Postal Service had to file its entire case in the expedited form and 
manner identified in part 3033 only to then have to relitigate the case 
under the rules of part 3030. Once a complaint is filed under part 
3033, it either must be settled or decided by the Commission. However, 
if a complaint filed pursuant to part 3033 is dismissed without 
prejudice on procedural grounds pursuant to a motion to dismiss; such a 
complaint may be refiled under either part 3030 or part 3033. The legal 
doctrines of res judicata and collateral estoppel shall apply. 
Paragraph (d) identifies the other Commission rules that are applicable 
to complaints filed under this part.
    Paragraph (e) sets forth the standard the Commission will apply in 
reviewing motions filed under this part. The Commission recognizes that 
unanticipated extraordinary circumstances may arise and participants 
may need to request relief from certain aspects of the rules of this 
part, e.g., a severe illness to a witness or counsel. In such 
circumstances, a motion requesting a brief extension would be 
reasonable. However, the speedy resolution of complaints envisioned by 
these rules will be exceedingly difficult if the general substance of 
these regulations is not followed. Participants must file their 
complete cases, including pleadings and supporting documentation in the 
manner, structure (complaint, answer, reply), and under the procedural 
schedule set forth in the rules. If alterations to the procedural 
schedule routinely occur, the prompt adjudication of section 404a 
complaint disputes as intended by these rules will be compromised. 
Accordingly, motions to excuse participants from conforming to the 
substance of these rules generally will be looked on with disfavor. 
Such motions will only be granted in exceptional circumstances.
    Responses to motions filed pursuant to paragraph (e) will be due 3 
days after the motion is filed. This shortened time is consistent with 
the expedited schedule established by these rules.
    Section 3033.5 General pleading requirements for accelerated 404a 
complaints. This rule sets forth the filing requirements for pleadings 
filed under this part and states that a complaint filed under part 3033 
will be decided based on the record consisting of the complaint, the 
answer, a reply (if applicable), intervenor submissions, and supporting 
documentation.
    Section 3033.6 Complaint contents. This proposed rule identifies 
the information that must be included in a complaint filing in order to 
satisfy the ``form and manner'' requirements of 39 U.S.C. 3662(a) for 
complaints filed pursuant to part 3033. These requirements are based in 
large part upon the Commission's general complaint content requirements 
of part 3030 but are specifically tailored to ensure that the 
Commission has the information it needs to decide the complaint under 
the accelerated time frame envisioned by part 3033.
    Section 3033.7 Answers. This proposed rule identifies the 
information that must be included in the Postal Service's answer for 
complaints filed pursuant to part 3033. These requirements are based in 
large part upon the Commission's general complaint answer requirements 
of part 3030, but are specifically tailored to ensure that the 
Commission has the information it needs to decide the complaint under 
the accelerated time frame envisioned by part 3033.
    The proposed rule is designed to ensure that the Postal Service 
narrows the issues for Commission adjudication in its answer. The rule 
also specifically requests that the Postal Service address the 
complainant's proposed remedies and their potential effects on the 
Postal Service--both intended and unintended. This will ensure that, if 
necessary, the Commission has the information necessary to determine 
how to best achieve compliance with applicable requirements and remedy 
the effects of any noncompliance.
    Section 3033.8 Pleadings filed in response to a complaint. This 
proposed rule governs the timeline for the Postal Service to respond to 
complaints. In general, the Postal Service has 20 days to respond to a 
complaint. If the Postal Service files an appropriate motion, the 
timeline for the Postal Service to file its answer to a complaint is 
altered in a manner similar to that in the Federal Rules of Civil 
Procedure. If the Postal Service does file such motion, this rule also 
governs the deadline for filing a response to such motion.
    Section 3033.9 Replies to answers raising affirmative defenses. 
This rule sets forth the limited circumstances under which replies to 
answers are allowed, and the contents allowed in such replies. In 
particular, replies are only allowed when the Postal Service's answer 
raises affirmative defenses, which are required to be clearly 
identified in the Postal Service's answer pursuant to section 
3033.7(a)(6). The statutory affirmative defenses found in 39 U.S.C. 
404a are restated in the Commission's rules in proposed sections 
3032.5, 3032.7, and 3032.8. Other potential affirmative defenses may 
exist, depending on the facts and circumstances of each case (e.g., 
statute of limitations, fair use, Noerr-Pennington doctrine, etc.).
    Section 3033.10 Complete statement of facts. This proposed rule 
sets forth requirements for the statement of facts, which needs to be 
included as part of the complaint, answer, and reply. The statement of 
facts must include all documents and testimony (through affidavits or 
declarations) that the filing participant is relying upon in order to 
prove its case. The information submitted under this rule is expected 
to form the evidentiary basis of the Commission's findings of fact in 
connection with complaint proceedings filed under part 3033. Paragraph 
(b) ensures that participants do not submit documents or information 
exchanged as part of settlement discussions as evidence.
    Section 3033.11 Intervention. This rule governs the types of 
intervenors that are allowed to participate in complaint proceedings 
filed under part 3033. Due to the accelerated time frames and the need 
for prompt action, the Commission proposes to limit intervenors to 
those interested persons who can demonstrate that intervention is 
necessary to protect their interests

[[Page 35833]]

and that they be directly impacted by a decision on the merits. 
Intervenors also may not expand the scope of the proceeding. This 
ensures that the Commission and the parties will not have to spend time 
and resources responding to intervenors that do not have a sufficient 
stake in the outcome of the proceeding or attempt to change its focus.
    Under this proposed rule, motions to intervene along with all 
associated supporting documentation are due within 10 days of an answer 
being filed, in conjunction with the reply deadline (if applicable). 
The supporting documentation must include a complete statement of facts 
pursuant to section 3033.10 related to the issues raised and facts 
alleged by the potential intervenor. The complainant and the Postal 
Service then have 10 days to respond to the issues raised in the motion 
to intervene and the supporting documentation. Such responses must 
comply with the requirements for replies under section 3033.9 and may 
only address the issues raised in the motion to intervene and the 
supporting documentation. This will ensure that the Commission will be 
able to issue its decision on the complaint in a timely manner as 
requested in the accelerated complaint while still appropriately 
balancing the rights of potential intervenors to have their views and 
concerns considered.
    Section 3033.12 Notice of Proceeding. This rule sets forth the 
information that the Commission will provide in its notice docketing 
the section 404a complaint proceeding filed pursuant to part 3033. Such 
notice will be published on the Commission's Web site.
    Section 3033.15 Final order. Under this proposed rule, the 
Commission shall issue a final order on the complaint in 90 days. The 
rule ensures that if the Commission finds the complaint to be 
justified, it will grant appropriate relief in accordance with rule 
3030.50. The final order will also rule on any motions for intervention 
filed pursuant to proposed rule 3033.10 that have not been previously 
ruled upon. Due to the strict time constraints, the Commission 
anticipates ruling on most intervention motions in the final order.

V. Public Representative

    Pursuant to 39 U.S.C. 505, Sean C. Duffy is appointed to serve as 
an officer of the Commission (Public Representative) to represent the 
interests of the general public in the above-captioned docket.

VI. Ordering Paragraphs

    It is ordered:
    1. Docket No. RM2013-4 is established for the purpose of receiving 
comments of the Commission's proposed rules under 39 U.S.C. 404a.
    2. The Commission proposes to amend its regulations as shown below 
the signature of the Secretary. The proposed amendments involve 
altering and adding a new subsection to rule 3030.1 and adding new 
parts 3032 and 3033.
    3. Sean C. Duffy is designated as an officer of the Commission to 
represent the interests of the general public in this docket.
    4. Interested persons may submit comments no later than 45 days 
from the date of publication in the Federal Register.
    5. Interested persons may submit reply comments no later than 75 
days from the date of publication in the Federal Register.
    6. The Secretary shall arrange for publication of this order in the 
Federal Register.

List of Subjects

39 CFR Part 3030

    Administrative practice and procedure; Postal Service.

39 CFR Part 3031

    Administrative practice and procedure; Postal Service.

39 CFR Part 3032

    Administrative practice and procedure; Postal Service, trademarks.

    For the reasons stated above, the Postal Regulatory Commission 
proposes to amend 39 CFR chapter III as follows:

PART 3030--RULES FOR COMPLAINTS

0
1. The authority citation for part 3030 continues to read as follows:

    Authority:  39 U.S.C. 503; 3662.

0
2. Revise Sec.  3030.1 to read as follows:


Sec.  3030.1  Applicability.

    (a) Except as provided in paragraph (c) of this section, the rules 
in this part govern the procedure for complaints filed under 39 U.S.C. 
3662 that meet the form and manner requirements of subpart B of this 
part. Part 3001, subpart A of this chapter, applies unless otherwise 
stated in this part or otherwise ordered by the Commission.
    (b) Sections 3001.25 through 3001.27 of this chapter and Sec.  
3001.33 of this chapter do not apply to this part unless and until the 
Commission makes a finding under Sec.  3030(a)(1) that the complaint 
raises material issues of fact or law.
    (c) If a complaint under 39 U.S.C. 3662 alleges a violation of 39 
U.S.C. 404a, the person filing the complaint may choose to file such 
complaint under this part or under the accelerated procedures provided 
in part 3033 of this chapter. If the complaint is filed under this 
part, the special rules under part 3032 of this chapter shall apply to 
the complaint in addition to the rules under this part.
0
3. Add part 3032 to read as follows:

PART 3032--SPECIAL RULES FOR COMPLAINTS ALLEGING VIOLATIONS OF 39 
U.S.C. 404a

Subpart A--General
Sec.
3032.1 Applicability.
Subpart B--Requirements and Defenses
3032.5 Unfair competition.
3032.6 Disclosure, transfer, and licensing of intellectual property.
3032.7 Unlawfully obtaining information.
3032.8 Statutorily authorized affirmative defense.
Subpart C--Special Procedural Rules for 39 U.S.C. 404a Complaints
3032.15 Depositions in non-accelerated 39 U.S.C. 404a complaint 
proceedings.

    Authority:  39 U.S.C. 404a, 3662.

Subpart A--General


Sec.  3032.1  Applicability.

    (a) The rules in this part govern proceedings filed under 39 U.S.C. 
3662 alleging violations of 39 U.S.C. 404a that meet the requirements 
of:
    (1) Sections 3030.2 and 3030.10 of this chapter; or
    (2) Sections 3033.5 and 3033.6 of this chapter.
    (b) If a complaint alleges violations of multiple legal or 
regulatory requirements, the rules in this part apply only to those 
claims of a complaint alleging violations of 39 U.S.C. 404a and 
associated regulatory requirements.
    (c) Subpart B of this part applies to complaints adjudicated under 
part 3030 of this chapter and part 3033 of this chapter. Subpart C of 
this part applies only to complaints adjudicated under part 3030 of 
this chapter.

Subpart B--Requirements and Defenses


Sec.  3032.5  Unfair competition.

    (a) A complaint alleging a violation of 39 U.S.C. 404a(a)(1) must 
show that:
    (1) A Postal Service rule, regulation, or standard has the effect 
of:
    (i) Precluding competition; or

[[Page 35834]]

    (ii) Establishing the terms of competition; and
    (2) The rule, regulation, or standard harms or harmed the person 
filing the complaint and competition.
    (b) As an affirmative defense to a complaint under 39 U.S.C. 
404a(a)(1), the Postal Service may demonstrate that the rule, 
regulation, or standard at issue does not create an unfair competitive 
advantage for itself or any entity funded, in whole or in part, by the 
Postal Service.
    (c) As used in this section, the term ``rule, regulation, or 
standard'' includes, among other things, documents or policies issued 
by the Postal Service to exercise its regulatory authority or otherwise 
act as a governmental entity.


Sec.  3032.6  Disclosure, transfer, and licensing of intellectual 
property.

    (a) A complaint alleging a violation of 39 U.S.C. 404a(a)(2) must 
show that the Postal Service has compelled or attempted to compel the 
disclosure, transfer, or licensing of the intellectual property of the 
person filing the complaint to a third party.
    (b) As used in this section, the term ``intellectual property'' 
includes, among other things, patents, copyrights, trademarks, trade 
secrets, and proprietary information.
    (c) As used in this section, the term ``disclosure, transfer, or 
licensing of intellectual property'' includes, among other things, an 
action that has an adverse effect on the value of intellectual 
property.


Sec.  3032.7  Unlawfully obtaining information.

    (a) A complaint alleging a violation of 39 U.S.C. 404a(a)(3) must 
show that:
    (1) The person filing the complaint has provided or sought to 
provide a product to the Postal Service;
    (2) The Postal Service obtained information about such product from 
the person filing the complaint; and
    (3) The Postal Service offers or offered a postal service that uses 
or is based, in whole or in part, on the information obtained from the 
person filing the complaint.
    (b) As an affirmative defense to a complaint under 39 U.S.C. 
404a(a)(3), the Postal Service may demonstrate that substantially the 
same information was obtained (or was obtainable) from an independent 
source or is otherwise obtained (or obtainable) through lawful means.
    (c) As an affirmative defense to a complaint under 39 U.S.C. 
404a(a)(3), the Postal Service may show that the information obtained 
was provided by consent. Such consent must be informed, uncoerced, and 
given only after the Postal Service has communicated adequate 
information and explanation about the risks of providing such consent.


Sec.  3032.8  Statutorily authorized affirmative defense.

    (a) As an affirmative defense to an allegation of a violation of 39 
U.S.C. 404a(a), the Postal Service may demonstrate that it is 
specifically authorized by law to take the action or inaction alleged 
to be a violation of that section.
    (b) Authority under 39 U.S.C. 401 or 39 U.S.C. 404 may not form the 
basis of an affirmative defense under paragraph (a) of this section.
    (c) Paragraph (b) of this section does not preclude the Postal 
Service from arguing that a particular Postal Service regulation or 
other action (or inaction) does not have the requisite effect to 
violate 39 U.S.C. 404a(a).

Subpart C--Special Procedural Rules for Section 404a Complaints


Sec.  3032.15  Depositions in non-accelerated Section 404a complaint. 
proceedings.

    (a) If the complaint was filed under part 3030 of this chapter, 
participants may take depositions in accordance with Federal Rule of 
Civil Procedure 30. Participants may take depositions immediately after 
the Commission makes a finding under Sec.  3030.30(a) of this chapter 
that the complaint raises material issues of fact or law.
    (b) Section 3001.33 of this chapter does not apply to depositions 
under this section.
0
4. Add part 3033 to read as follows:

PART 3033--ACCELERATED PROCEDURES FOR COMPLAINTS ALLEGING 
VIOLATIONS OF 39 U.S.C. 404a

Subpart A--General
Sec.
3033.1 Applicability.
Subpart B--Form and Manner Requirements for Pleadings in Accelerated 
Complaints
3033.5 General pleading requirements for accelerated section 404a 
complaints.
3033.6 Complaint contents.
3033.7 Answers.
3033.8 Pleadings filed in response to a complaint.
3033.9 Replies to answers raising affirmative defenses.
3033.10 Complete statement of facts.
3033.11 Intervention.
3033.12 Notice of proceeding.
Subpart C--Commission Determinations and Relief
3033.15 Final order.

Subpart A--General


Sec.  3033.1  Applicability.

    (a) Any person filing a complaint under 39 U.S.C. 3662 alleging 
violations of 39 U.S.C. 404a and associated regulatory requirements may 
choose to have the complaint adjudicated under the accelerated 
procedures of this part. If the person does not choose to have the 
complaint adjudicated under the accelerated procedures of this part, 
the procedural requirements of part 3030 of this chapter will apply to 
the complaint.
    (b) A complaint filed under this part may only make claims arising 
under 39 U.S.C. 404a and associated regulatory requirements. A 
complaint otherwise eligible for filing under this part containing 
additional claims raising one or more of the other statutory or 
regulatory provisions listed in 39 U.S.C. 3662(a) must be filed under 
part 3030 of this chapter if such additional claims arise out of the 
same set of facts.
    (c) A complaint filed under this part may not be re-filed under 
part 3030 of this chapter unless:
    (1) Withdrawn by the person filing the complaint prior to the 
Postal Service's answer to the complaint; or
    (2) Dismissed without prejudice.
    (d) Unless otherwise stated in this part or otherwise ordered by 
the Commission, Sec. Sec.  3001.1, 3001.5 though 3001.15, 3001.21, 
3001.23, 3001.32, 3030.2, 3030.11, 3030.20, 3030.21, 3030.40, 3030.41, 
and 3030.50 of this chapter apply to accelerated complaints filed under 
this part.
    (e) Except as otherwise provided in this part, motion practice is 
limited to extraordinary circumstances. Motions requesting waiver from 
compliance with the substance of the rules of this part, including 
material modifications of the procedural schedule, will generally be 
disfavored and granted only in exceptional circumstances. Except as 
otherwise provided in this part, responses to motions are due within 3 
days.
    (f) The special rules under part 3032 of this chapter apply to each 
complaint filed under this part.

Subpart B--Form and Manner Requirements for Pleadings in 
Accelerated Complaints


Sec.  3033.5  General pleading requirements for accelerated 39 U.S.C. 
404a complaints.

    (a) A complaint filed under this part will be resolved on a written 
record consisting of a complaint and answer, along with all associated 
submissions. A reply to an answer is permissible only as set forth in 
Sec.  3033.9. Intervenor filings and responses thereto are

[[Page 35835]]

permissible only as set forth in Sec.  3033.11.
    (b) Pleadings must be clear, concise, and explicit. All matters 
concerning a claim, defense or requested remedy, including damages, 
must be pleaded fully and with specificity.
    (c) Pleadings must present facts which, if true, are sufficient to 
constitute a violation of the law, Commission regulation or order, or a 
defense to such alleged violation.
    (d) Facts must be supported by relevant affidavit(s), 
declaration(s), or documentation.
    (e) Legal arguments must be supported by appropriate statutory, 
judicial, Commission, or other administrative authority.
    (f) If known, opposing authorities must be identified and 
distinguished.
    (g) All authorities relied upon which are not routinely available 
in national reporting systems, such as unpublished decisions or slip 
opinions of courts or administrative agencies, must be included as part 
of filings.
    (h) Information submitted, as well as relevant legal authorities, 
must be current, accurate, and updated as necessary and in a timely 
manner at any time before a decision is rendered on the merits of the 
complaint.
    (i) Rules, regulations, and standards that are referred to or 
relied upon in a complaint, answer, or other pleading shall be appended 
to such complaint, answer, or other pleading.
    (j) Pleadings shall identify the name, address, telephone number, 
and email address of the filing attorney or, if a participant is not 
represented by an attorney, the filing participant.


Sec.  3033.6  Complaint contents.

    (a) A complaint filed under this part shall contain:
    (1) An affirmative statement that the person filing the complaint 
seeks relief under the accelerated procedures of this part;
    (2) A full explanation of how the Postal Service's action or 
inaction violates applicable statutory standards under 39 U.S.C. 404a 
or related regulatory requirements, including citations to the relied 
upon section or sections of statute, regulation, order, or other 
regulatory requirements;
    (3) A statement of the specific relief requested and the basis for 
that relief;
    (4) Identification of persons or classes of persons known, or 
believed to be similarly affected by the issues involved in the 
complaint, if applicable;
    (5) A complete statement of facts that conforms with Sec.  3033.10 
that establishes the violation(s) described in paragraph (a)(2) of this 
section;
    (6) Proposed findings of fact, conclusions of law, and legal 
analysis relevant to the claims and arguments set forth in the 
complaint;
    (7) A certification that prior to the filing, the person filing the 
complaint attempted to meet or confer with the Postal Service's General 
Counsel to resolve or settle the complaint, why the person filing the 
complaint believes additional such steps would be unsuccessful, and the 
reasons for that belief;
    (8) A statement as to whether the issues presented are pending in 
or have been resolved by an existing Commission proceeding or a 
proceeding in any other forum; and if so, an explanation of why timely 
resolution cannot be achieved in that proceeding;
    (9) All affidavits, declarations, documents, data and analysis upon 
which the person filing the complaint intends to rely to support the 
facts alleged in the complaint; and
    (10) A certification that the complaint has been served on the 
Postal Service as required by Sec.  3030.11 of this chapter.
    (b) The Commission may waive any of the requirements listed in 
paragraph (a) of this section to serve the interests of justice.


Sec.  3033.7  Answers.

    (a) The Postal Service's answer to a complaint filed under Sec.  
3033.6 shall contain:
    (1) Sufficient information to advise the person filing the 
complaint and the Commission fully and completely of the nature of each 
defense;
    (2) A full explanation of why the Postal Service's action or 
inaction does not violate applicable statutory standards under 39 
U.S.C. 404a or related regulatory requirements, including citations to 
the relied upon section or sections of statute, regulation, order, or 
other regulatory requirements;
    (3) If applicable, a full explanation of why the relief requested 
is inappropriate, including information on how granting the relief 
requested could have unintended consequences or cause harm to the 
Postal Service unrelated to the issues raised in the complaint;
    (4) Specific responses to all material allegations of the complaint 
and a detailed statement of the basis for such responses;
    (5) A complete statement of facts that conforms with Sec.  3033.10 
that establishes the Postal Service's defenses, including affirmative 
defenses, to the allegations raised in the complaint;
    (6) Identification of and justification for each defense asserted, 
including a separate section captioned ``Affirmative Defenses'' 
identifying any affirmative defenses and the justifications for each 
such defense;
    (7) Proposed findings of fact, conclusions of law, and legal 
analysis relevant to the claims and arguments set forth in the answer;
    (8) A certification that the Postal Service attempted to meet or 
confer with the person filing the complaint to resolve or settle the 
complaint, why the Postal Service believes additional such steps would 
be unsuccessful, and the reasons for that belief;
    (9) A statement as to whether the issues presented are pending in 
or have been resolved by an existing Commission proceeding or a 
proceeding in any other forum; and
    (10) All affidavits, declarations, documents, data and analysis 
upon which the Postal Service relies or intends to rely to support the 
facts alleged in the answer.
    (b) The Commission may waive any of the requirements of paragraph 
(a) of this section to serve the interests of justice.


Sec.  3033.8  Pleadings filed in response to a complaint.

    (a) Except as provided in paragraph (b) of this section or unless 
otherwise ordered by the Commission, the Postal Service shall file an 
answer to the complaint in the manner prescribed in this part within 20 
days of service of the complaint.
    (b) If appropriate, within 10 days after the complaint is filed, 
the Postal Service may file a dispositive motion with respect to the 
complaint, including a motion to dismiss. If the Postal Service files 
such a motion, unless otherwise ordered by the Commission, the period 
of time for filing its answer is altered such that if the Commission 
denies the motion or postpones disposition, the Postal Service shall 
file an answer within 7 days of the Commission's action.
    (c) If the Postal Service files a motion pursuant to paragraph (b) 
of this section, responses to such motion are due within 7 days. The 
Commission shall issue its decision on such motion within 14 days or 
such other time as the Commission may establish.
    (d) If the Postal Service's answer is delayed by the filing of a 
motion under paragraph (b) of this section, it may not obtain a further 
delay by filing another motion under paragraph (b) of this section.


Sec.  3033.9  Replies to answers raising affirmative defenses.

    (a) Within 10 days after service of an answer containing 
affirmative defenses presented in accordance with the requirements of 
Sec.  3033.7(a)(6), the

[[Page 35836]]

person that filed the complaint may file and serve a reply containing 
statements of relevant, material facts and legal arguments that are 
responsive to the specific factual allegations and legal arguments made 
by the Postal Service in support of its affirmative defenses. Material 
facts shall conform to the requirements of Sec.  3033.10. No new causes 
of action may be raised in a reply.
    (b) Failure to reply to an affirmative defense shall be deemed an 
admission of such affirmative defense and of any facts supporting such 
affirmative defense that are not specifically contradicted in the 
complaint.
    (c) The reply shall contain proposed findings of fact, conclusions 
of law, and legal analysis relevant to the affirmative defenses raised 
in the answer.
    (d) The reply shall contain as attachments all affidavits, 
declarations, documents, data and analysis upon which the complainant 
relies or intends to rely to support the facts alleged in the reply.
    (e) If an answer does not contain affirmative defenses, the person 
filing the complaint may not file a reply to an answer.
    (f) The Commission may waive any of the requirements of this 
section to serve the interests of justice.


Sec.  3033.10  Complete statement of facts.

    (a) Each complaint, answer, and reply under this part must contain 
a statement of facts. All material facts in the statement of facts must 
be supported by relevant affidavits, declarations, and documentation, 
including copies of relevant written agreements, offers, counter 
offers, denials, and other correspondence. The statement of facts shall 
include a detailed explanation of how the facts presented are related 
to the allegations set forth in the pleadings, including a full 
identification and description of the communications, transmissions, 
services, or other conduct complained of and the nature of any alleged 
injury. Assertions based on information and beliefs are expressly 
prohibited unless accompanied by affidavit(s) or declaration(s) 
explaining the basis for the belief and why the facts could not be 
reasonably ascertained.
    (b) Documents prepared for the purposes of settlement discussions 
may not be submitted as part of the statement of facts under paragraph 
(a) of this section.


Sec.  3033.11  Intervention.

    (a) For purposes of this section, the term ``intervenor'' means a 
person who could be directly impacted by a decision on the merits of 
the complaint and who can demonstrate that intervention in the 
proceeding under this part is necessary to protect the person's 
interest(s).
    (b) A potential intervenor may not expand the scope of the 
proceeding by addressing any issue(s) outside the scope of the 
complaint and answer.
    (c) To intervene in a proceeding under this part, a potential 
intervenor must file a motion for leave to intervene within 10 days of 
an answer being filed pursuant to Sec.  3033.7. The motion shall 
address how the potential intervenor meets the definition of intervenor 
under paragraph (a) of this section and how such intervention does not 
alter the scope of the proceeding pursuant to paragraph (b) of this 
section.
    (d) The motion for leave to intervene must contain as an attachment 
an intervenor statement providing the following information:
    (1) Whether the potential intervenor supports the complaint or 
answer; and
    (2) The basis for potential intervenor's support.
    (e) The attached intervenor statement filed pursuant to paragraph 
(d) of this section may contain the following supporting documentation, 
if applicable:
    (1) A full explanation of why the Postal Service's action or 
inaction does or does not violate the applicable statutory standards 
under 39 U.S.C. 404a or related regulatory requirements, including 
citations to the relied upon section or sections of statute, 
regulation, order, or other regulatory requirements raised in the 
complaint or answer;
    (2) A complete statement of facts that conforms with Sec.  3033.10 
that establishes the violation(s) or defense(s), including affirmative 
defense(s), raised by the potential intervenor in its intervenor 
statement;
    (3) Proposed findings of fact, conclusions of law, and legal 
analysis relevant to the claims and arguments set forth in the 
intervenor statement; or
    (4) All affidavits, declarations, data and analysis, and documents 
upon which the potential intervenor intends to rely to support the 
facts alleged in the intervenor statement;
    (f) Responses to motions for leave to intervene, including 
responses to the intervenor statement filed pursuant to paragraph (d) 
of this section, may be filed by the person filing the complaint and 
the Postal Service within 10 days of the date the motion for leave to 
intervene is filed. Responses to the intervenor statement shall conform 
to the requirements of Sec.  3033.9.
    (g) No new causes of action may be raised in a response to a motion 
for leave to intervene.
    (h) For purposes of this part, an officer of the Commission 
designated to represent the interests of the general public pursuant to 
39 U.S.C. 505 shall be treated as an intervenor whose motion for leave 
to intervene has been granted.


Sec.  3033.12  Notice of proceeding.

    (a) Whenever a complaint is filed under this part, the Commission 
shall issue a notice of the proceeding.
    (b) Notice under paragraph (a) of this section shall be published 
on the Commission's Web site and contain the following:
    (1) A brief summary outlining the claims and requested remedies 
contained in the complaint;
    (2) A reference to the legal authority under which the proceeding 
is to be conducted;
    (3) The identification of an officer of the Commission to represent 
the interests of the general public in the docket;
    (4) A statement that interested persons may move to intervene in 
the proceeding in accordance with Sec.  3033.11; and
    (5) Such other information as the Commission deems appropriate.

Subpart C--Commission Determinations and Relief


Sec.  3033.15  Final order.

    (a) The Commission will issue a final order on a complaint no later 
than 90 days after the complaint is filed. Such final order will also 
address outstanding intervention requests filed pursuant to Sec.  
3033.11, if applicable.
    (b) Orders issued pursuant to paragraph (a) of this section shall 
include the Commission's written statement setting forth the bases for 
its determination.
    (c) If the Commission finds the complaint to be justified, the 
Commission will provide for remedies in accordance with Sec.  3030.50 
of this chapter.

Shoshana M. Grove,
Secretary.
[FR Doc. 2013-13824 Filed 6-13-13; 8:45 am]
BILLING CODE 7710-FW-P