Formal Complaint Proceedings to the Enforcement Bureau, 44831-44843 [2018-18689]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 83, Number 171 (Tuesday, September 4, 2018)]
[Rules and Regulations]
[Pages 44831-44843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18689]



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FEDERAL COMMUNICATIONS COMMISSION

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

[EB Docket No. 17-245; FCC 18-96]


Formal Complaint Proceedings to the Enforcement Bureau

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) considers creating a uniform set of procedural rules for 
formal complaint proceedings delegated to the Enforcement Bureau and 
currently handled by its Market Disputes Resolution Division and 
Telecommunications Consumers Division. This document streamlines and 
consolidates the procedural rules governing formal complaints filed 
under section 208 of the Communications Act of 1934, as amended (Act); 
pole attachment complaints filed under section 224 of the Act; and 
formal advanced communications services and equipment complaints filed 
under sections 255, 716, and 718 of the Act.

DATES: Effective October 4, 2018.

FOR FURTHER INFORMATION CONTACT: Michael Engel, Federal Communications 
Commission Enforcement Bureau, Market Disputes Resolution Division, at 
(202) 418-7330.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order in EB Docket No. 17-245, FCC 18-96 adopted July 12, 2018 and 
released July 18, 2018. The full text of this document is available for 
public inspection during regular business hours in the FCC Reference 
Information Center, Portals II, 445 12th Street SW, Room CY-A257, 
Washington, DC 20554. It also is available on the Commission's website 
at https://apps.fcc.gov/edocs_public/. On September 13, 2017, the 
Commission adopted a Notice of Proposed Rulemaking (NPRM) proposing and 
seeking comment on revisions to formal complaint procedures. The NPRM 
was published in the Federal Register on September 26, 2017 (82 FR 
44755). Specifically, the NPRM proposed to streamline and consolidate 
the procedural rules governing formal complaints filed under Section 
208 of the Act; pole attachment complaints filed under Section 224 of 
the Act; and formal advanced communications services and equipment 
complaints filed under Sections 255, 716, and 718 of the Act.

Paperwork Reduction Act

    This document contains new or modified information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. It will be submitted to the Office of Management and 
Budget (OMB) for review under section 3507(d) of the PRA. OMB, the 
general public, and other Federal agencies will be invited to comment 
on the new or modified information collection requirements contained in 
this proceeding. In addition, we note that pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4), we previously sought specific comment on how the 
Commission might further reduce the information collection burden for 
small business concerns with fewer than 25 employees. In this present 
document, we have assessed the effects of this rule and find that any 
burden on small businesses will be minimal because the rules streamline 
the formal complaint process and reduce burdens on all parties.

Congressional Review Act

    The Commission will send a copy of this Report and Order in a 
report to be sent to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Parts 1, 6, 7, 14, 20, 64, and 68

    Common carriers, Communications, Telecommunications, Telephone.

Federal Communications Commission
Marlene Dortch,
Secretary.

Final Rules

    For the reasons discussed in this preamble, the Federal 
Communications Commission amends 47 CFR parts 1, 6, 7, 14, 20, 64, and 
68 as follows:

PART 1--PRACTICE AND PROCEDURE

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

    Authority:  47 U.S.C. 151, 154(i), 155, 157, 160, 201, 225, 227, 
303, 309, 332, 1403, 1404, 1451, 1452, and 1455, unless otherwise 
noted.


0
2. Amend Sec.  1.47 by revising paragraph (d) to read as follows:


Sec.  1.47  Service of documents and proof of service.

* * * * *
    (d) Except in formal complaint proceedings against common carriers 
under Sec. Sec.  1.720 through 1.740 of this chapter, documents may be 
served upon a party, his attorney, or other duly constituted agent by 
delivering a copy or by mailing a copy to the last known address. 
Documents that are required to be served must be served in paper form, 
even if documents are filed in electronic form with the Commission, 
unless the party to be served agrees to accept service in some other 
form.
* * * * *

0
3. Amend Sec.  1.49 by revising paragraph (f)(1)(i) to read as follows:


Sec.  1.49  Specifications as to pleadings and documents.

* * * * *
    (f) * * *
    (1) * * *
    (i) Formal complaint proceedings under section 208 of the Act and 
rules in Sec. Sec.  1.720 through 1.740, and pole attachment complaint 
proceedings under section 224 of the Act and rules in Sec. Sec.  1.1401 
through 1.1415;
* * * * *

0
4. Revise Sec.  1.717 to read as follows:


Sec.  1.717  Procedure.

    The Commission will forward informal complaints to the appropriate 
carrier for investigation and may set a due date for the carrier to 
provide a written response to the informal complaint to the Commission, 
with a copy to the complainant. The response will advise the Commission 
of the carrier's satisfaction of the complaint or of its refusal or 
inability to do so. Where there are clear indications from the 
carrier's response or from other communications with the parties that 
the complaint has been satisfied, the Commission may, in its 
discretion, consider a complaint proceeding to be closed. In all other 
cases, the Commission will notify the complainant that if the 
complainant is not satisfied by the carrier's response, or if the 
carrier has failed to submit a response by the due date, the 
complainant may file a formal complaint in accordance with Sec.  1.721.

0
5. Revise Sec.  1.718 to read as follows:


Sec.  1.718  Unsatisfied informal complaints; formal complaints 
relating back to the filing dates of informal complaints.

    When an informal complaint has not been satisfied pursuant to Sec.  
1.717, the complainant may file a formal complaint with this Commission 
in the form specified in Sec.  1.721. Such filing will be deemed to 
relate back to the filing date of the informal complaint: Provided, 
That the formal complaint: Is filed within 6 months from the date of 
the carrier's response, or if no response

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has been filed, within 6 months of the due date for the response; makes 
reference to the date of the informal complaint, and is based on the 
same cause of action as the informal complaint. If no formal complaint 
is filed within the 6-month period, the informal complaint proceeding 
will be closed.

0
6. Amend the table of contents of part 1 by revising the section 
headings of Sec. Sec.  1.720 through 1.736, and adding section headings 
for Sec. Sec.  1.737 through 1.740, to read as follows:
* * * * *
Sec.
1.720 Purpose.
1.721 General pleading requirements.
1.722 Format and content of complaints.
1.723 Damages.
1.724 Complaints governed by section 208(b)(1) of the Act.
1.725 Joinder of complainants and causes of action.
1.726 Answers.
1.727 Cross-complaints and counterclaims.
1.728 Replies.
1.729 Motions.
1.730 Discovery.
1.731 Confidentiality of information produced or exchanged.
1.732 Other required written submissions.
1.733 Status conference.
1.734 Fee remittance; electronic filing; copies; service; separate 
filings against multiple defendants.
1.735 Conduct of proceedings.
1.736 Accelerated Docket Proceedings.
1.737 Mediation.
1.738 Complaints filed pursuant to 47 U.S.C. 271(d)(6)(B).
1.739 Primary jurisdiction referrals.
1.740 Review period for section 208 formal complaints not governed 
by section 208(b)(1) of the Act.
* * * * *

0
7. Revise Sec. Sec.  1.720 through 1.736 to read as follows:


Sec.  1.720  Purpose.

    The following procedural rules apply to formal complaint 
proceedings under 47 U.S.C. 208, pole attachment complaint proceedings 
under 47 U.S.C. 224, and advanced communications services and equipment 
formal complaint proceedings under 47 U.S.C. 255, 617, and 619, and 
part 14 of this chapter. Additional rules relevant only to pole 
attachment complaint proceedings are provided in subpart J of this 
part.


Sec.  1.721  General pleading requirements.

    Formal complaint proceedings are generally resolved on a written 
record consisting of a complaint, answer, reply, and joint statement of 
stipulated facts, disputed facts and key legal issues, along with all 
associated evidence in the record. The Commission may also require or 
permit other written submissions such as briefs, proposed findings of 
fact and conclusions of law, or other supplementary documents or 
pleadings.
    (a) All papers filed in any proceeding subject to this part must be 
drawn in conformity with the requirements of Sec. Sec.  1.49, 1.50, and 
1.52.
    (b) Pleadings must be clear, concise, and direct. All matters 
concerning a claim, defense or requested remedy, including damages, 
should be pleaded fully and with specificity.
    (c) Pleadings must contain facts which, if true, are sufficient to 
constitute a violation of the Act or a Commission regulation or order, 
or a defense to an alleged violation.
    (d) Averred facts, claims, or defenses shall be made in numbered 
paragraphs and must be supported by relevant evidence. The contents of 
each paragraph shall be limited as far as practicable to a statement of 
a single set of circumstances. Each claim founded on a separate 
transaction or occurrence and each affirmative defense shall be 
separately stated to facilitate the clear presentation of the matters 
set forth. Assertions based on information and belief are prohibited 
unless made in good faith and accompanied by a declaration or affidavit 
explaining the basis for the party's belief and why the party could not 
reasonably ascertain the facts from any other source.
    (e) Legal arguments must be supported by appropriate statutory, 
judicial, or administrative authority.
    (f) Opposing authorities must be distinguished.
    (g) Copies must be provided of all non-Commission authorities 
relied upon which are not routinely available in national reporting 
systems, such as unpublished decisions or slip opinions of courts or 
administrative agencies. In addition, copies of state authorities 
relied upon shall be provided.
    (h) Parties are responsible for the continuing accuracy and 
completeness of all information and supporting authority furnished in a 
pending complaint proceeding. Information submitted, as well as 
relevant legal authorities, must be current and updated as necessary 
and in a timely manner before a decision is rendered on the merits of 
the complaint.
    (i) Specific reference shall be made to any tariff or contract 
provision relied on in support of a claim or defense. Copies of 
relevant tariffs, contracts, or relevant portions that are referred to 
or relied upon in a complaint, answer, or other pleading shall be 
appended to such pleading.
    (j) Pleadings shall identify the name, address, telephone number, 
and email address for either the filing party's attorney or, where a 
party is not represented by an attorney, the filing party. Pleadings 
may be signed by a party's attorney.
    (k) All attachments shall be Bates-stamped or otherwise numbered 
sequentially. Parties shall cite to Bates-stamped page numbers in their 
pleadings.
    (l) Pleadings shall be served on all parties to the proceeding in 
accordance with Sec.  1.734 and shall include a certificate of service.
    (m) Each pleading or other submission must contain a written 
verification that the signatory has read the submission and, to the 
best of his or her knowledge, information and belief formed after 
reasonable inquiry, it is well grounded in fact and is warranted by 
existing law or a good faith argument for the extension, modification 
or reversal of existing law; and that it is not interposed for any 
improper purpose, such as to harass, cause unnecessary delay, or 
needlessly increase the cost of the proceeding. If any pleading or 
other submission is signed in violation of this provision, the 
Commission may upon motion or upon its own initiative impose 
appropriate sanctions.
    (n) Parties may petition the staff, pursuant to Sec.  1.3, for a 
waiver of any of the rules governing formal complaints. Such waiver may 
be granted for good cause shown.
    (o) A complaint may, on request of the filing party, be dismissed 
without prejudice as a matter of right prior to the adoption date of 
any final action taken by the Commission with respect to the complaint. 
A request for the return of an initiating document will be regarded as 
a request for dismissal.
    (p) Amendments or supplements to complaints to add new claims or 
requests for relief are prohibited.
    (q) Failure to prosecute a complaint will be cause for dismissal.
    (r) Any document purporting to be a formal complaint which does not 
state a cause of action under the Communications Act, or a Commission 
regulation or order, will be dismissed. In such case, any amendment or 
supplement to such document will be considered a new filing which must 
be made within any applicable statutory limitations of actions.
    (s) Any other pleading that does not conform with the requirements 
of the applicable rules may be deemed defective. In such case the 
Commission may strike the pleading or request that specified defects be 
corrected and that

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proper pleadings be filed with the Commission and served on all parties 
within a prescribed time as a condition to being made a part of the 
record in the proceeding.
    (t) Pleadings shall be construed so as to do justice.
    (u) Any party that fails to respond to official correspondence, a 
request for additional information, or an order or directive from the 
Commission may be subject to appropriate sanctions.


Sec.  1.722  Format and content of complaints.

    A formal complaint shall contain:
    (a) The name of each complainant and defendant;
    (b) The occupation, address and telephone number of each 
complainant and, to the extent known, each defendant;
    (c) The name, address, telephone number, and email address of 
complainant's attorney, if represented by counsel;
    (d) Citation to the section of the Communications Act or Commission 
regulation or order alleged to have been violated; each such alleged 
violation shall be stated in a separate count;
    (e) Legal analysis relevant to the claims and arguments set forth 
therein;
    (f) The relief sought, including recovery of damages and the amount 
of damages claimed, if known;
    (g) Certification that the complainant has, in good faith, 
discussed or attempted to discuss the possibility of settlement with 
each defendant prior to the filing of the formal complaint. In disputes 
between businesses, associations, or other organizations, the 
certification shall include a statement that the complainant has 
engaged or attempted to engage in executive-level discussions 
concerning the possibility of settlement. Executive-level discussions 
are discussions among representatives of the parties who have 
sufficient authority to make binding decisions on behalf of the entity 
they represent regarding the subject matter of the discussions. Such 
certification shall include a statement that, prior to the filing of 
the complaint, the complainant notified each defendant in writing of 
the allegations that form the basis of the complaint and invited a 
response within a reasonable period of time. A refusal by a defendant 
to engage in discussions contemplated by this rule may constitute an 
unreasonable practice under the Act. The certification shall also 
include a brief summary of all additional steps taken to resolve the 
dispute prior to the filing of the formal complaint;
    (h) A statement explaining whether a separate action has been filed 
with the Commission, any court, or other government agency that is 
based on the same claim or same set of facts, in whole or in part, or 
whether the complaint seeks prospective relief identical to the relief 
proposed or at issue in a notice-and-comment rulemaking proceeding that 
is concurrently before the Commission;
    (i) An information designation containing:
    (1) The name and, if known, the address and telephone number of 
each individual likely to have information relevant to the proceeding, 
along with the subjects of that information, excluding individuals 
otherwise identified in the complaint or exhibits thereto, and 
individuals employed by another party; and
    (2) A copy--or a description by category and location--of all 
relevant documents, electronically stored information, and tangible 
things that the disclosing party has in its possession, custody, or 
control, excluding documents submitted with the complaint.
    (j) A completed Formal Complaint Intake Form;
    (k) A declaration, under penalty of perjury, by the complainant or 
complainant's counsel describing the amount, method, and date of the 
complainant's payment of the filing fee required under Sec.  1.1106 and 
the complainant's 10-digit FCC Registration Number, as required by 
subpart W of this part. Submission of a complaint without the FCC 
Registration Number will result in dismissal of the complaint.


Sec.  1.723  Damages.

    (a) If a complainant in a formal complaint proceeding wishes to 
recover damages, the complaint must contain a clear and unequivocal 
request for damages.
    (b) In all cases in which recovery of damages is sought, the 
complaint must include either:
    (1) A computation of each and every category of damages for which 
recovery is sought, along with an identification of all relevant 
documents and materials or such other evidence to be used by the 
complainant to prove the amount of such damages; or
    (2) If any information not in the possession of the complainant is 
necessary to develop a detailed computation of damages, an explanation 
of:
    (i) Why such information is unavailable to the complaining party;
    (ii) The factual basis the complainant has for believing that such 
evidence of damages exists; and
    (iii) A detailed outline of the methodology that would be used to 
create a computation of damages with such evidence.
    (c) If a complainant wishes a determination of damages to be made 
in a proceeding that is separate from and subsequent to the proceeding 
in which the determinations of liability and prospective relief are 
made, the complainant must:
    (1) Comply with paragraph (a) of this section, and
    (2) State clearly and unequivocally that the complainant wishes a 
determination of damages to be made in a proceeding that is separate 
from and subsequent to the proceeding in which the determinations of 
liability and prospective relief will be made.
    (d) If the Commission decides that a determination of damages would 
best be made in a proceeding that is separate from and subsequent to 
the proceeding in which the determinations of liability and prospective 
relief are made, the Commission may at any time bifurcate the case and 
order that the initial proceeding will determine only liability and 
prospective relief, and that a separate, subsequent proceeding 
initiated in accordance with paragraph (e) of this section will 
determine damages.
    (e) If a complainant exercises its right under paragraph (c) of 
this section, or the Commission invokes its authority under paragraph 
(d) of this section, the complainant may initiate a separate proceeding 
to obtain a determination of damages by filing a supplemental complaint 
within sixty days after public notice (as defined in Sec.  1.4(b)) of a 
decision that contains a finding of liability on the merits of the 
original complaint. Supplemental complaints filed pursuant to this 
section need not comply with the requirements in Sec. Sec.  1.721(c) or 
1.722(d), (g), (h), (j), and (k). The supplemental complaint shall be 
deemed, for statutory limitations purposes, to relate back to the date 
of the original complaint.
    (f) The Commission may, in its discretion, order the defendant 
either to post a bond for, or deposit into an interest bearing escrow 
account, a sum equal to the amount of damages which the Commission 
finds, upon preliminary investigation, is likely to be ordered after 
the issue of damages is fully litigated, or some lesser sum which may 
be appropriate, provided the Commission finds that the grant of this 
relief is favored on balance upon consideration of the following 
factors:
    (1) The complainant's potential irreparable injury in the absence 
of such deposit;

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    (2) The extent to which damages can be accurately calculated;
    (3) The balance of the hardships between the complainant and the 
defendant; and
    (4) Whether public interest considerations favor the posting of the 
bond or ordering of the deposit.
    (g) The Commission may, in its discretion, end adjudication of 
damages by adopting a damages computation method or formula. In such 
cases, the parties shall negotiate in good faith to reach an agreement 
on the exact amount of damages pursuant to the Commission-mandated 
method or formula. Within 30 days of the release date of the damages 
order, parties shall submit jointly to the Commission either:
    (1) A statement detailing the parties' agreement as to the amount 
of damages;
    (2) A statement that the parties are continuing to negotiate in 
good faith and a request that the parties be given an extension of time 
to continue negotiations; or
    (3) A statement detailing the bases for the continuing dispute and 
the reasons why no agreement can be reached.
    (h) In any proceeding to which no statutory deadline applies, the 
Commission may, in its discretion, suspend ongoing damages proceedings 
to provide the parties with time to pursue settlement negotiations or 
mediation under Sec.  1.737.


Sec.  1.724  Complaints governed by section 208(b)(1) of the Act.

    (a) Any party that intends to file a complaint subject to the 5-
month deadline in 47 U.S.C. 208(b)(1) must comply with the pre-
complaint procedures below. The Enforcement Bureau's Market Disputes 
Resolution Division will not process complaints subject to the 5-month 
deadline unless the filer complies with these procedures.
    (b) A party seeking to file a complaint subject to 47 U.S.C. 
208(b)(1) shall notify the Chief of the Market Disputes Resolution 
Division in writing of its intent to file the complaint, and provide a 
copy of the letter to the defendant. Commission staff will convene a 
conference with both parties as soon as practicable. During that 
conference, the staff may discuss, among other things:
    (1) Scheduling in the case;
    (2) Narrowing factual and legal issues in dispute;
    (3) Information exchange and discovery necessary to adjudicate the 
dispute;
    (4) Entry of a protective order governing confidential material; 
and
    (5) Preparation for and scheduling a mandatory settlement 
negotiation session at the Commission.
    (c) Staff will endeavor to complete the pre-complaint process as 
expeditiously as possible. Staff may direct the parties to exchange 
relevant information during the pre-complaint period.


Sec.  1.725  Joinder of complainants and causes of action.

    (a) Two or more complainants may join in one complaint if their 
respective causes of action are against the same defendant and concern 
substantially the same facts and alleged violation of the 
Communications Act or Commission regulation or order.
    (b) Two or more grounds of complaint involving substantially the 
same facts may be included in one complaint, but should be separately 
stated and numbered.


Sec.  1.726  Answers.

    (a) Any defendant upon which a copy of a formal complaint is served 
shall answer such complaint in the manner prescribed under this section 
within 30 calendar days of service of the formal complaint by the 
complainant, unless otherwise directed by the Commission.
    (b) The answer shall advise the complainant and the Commission 
fully and completely of the nature of any defense, and shall respond 
specifically to all material allegations of the complaint. Every effort 
shall be made to narrow the issues in the answer. The defendant shall 
state concisely its defense to each claim asserted, admit or deny the 
averments on which the complainant relies, and state in detail the 
basis for admitting or denying such averment. General denials are 
prohibited. Denials based on information and belief are prohibited 
unless made in good faith and accompanied by a declaration or affidavit 
explaining the basis for the defendant's belief and why the defendant 
could not reasonably ascertain the facts from the complainant or any 
other source. If the defendant is without knowledge or information 
sufficient to form a belief as to the truth of an averment, the 
defendant shall so state and this has the effect of a denial. When a 
defendant intends in good faith to deny only part of an averment, the 
defendant shall specify so much of it as is true and shall deny only 
the remainder. The defendant may deny the allegations of the complaint 
as specific denials of either designated averments or paragraphs.
    (c) The answer shall include legal analysis relevant to the claims 
and arguments set forth therein.
    (d) Averments in a complaint or supplemental complaint filed 
pursuant to Sec.  1.723(d) are deemed to be admitted when not denied in 
the answer.
    (e) Affirmative defenses to allegations in the complaint shall be 
specifically captioned as such and presented separately from any 
denials made in accordance with paragraph (b) of this section.
    (f) The answer shall include an information designation containing:
    (1) The name and, if known, the address and telephone number of 
each individual likely to have information relevant to the proceeding, 
along with the subjects of that information, excluding individuals 
otherwise identified in the complaint, answer, or exhibits thereto, and 
individuals employed by another party; and
    (2) A copy--or a description by category and location--of all 
relevant documents, electronically stored information, and tangible 
things that the disclosing party has in its possession, custody, or 
control, excluding documents submitted with the complaint or answer.
    (g) Failure to file an answer may be deemed an admission of the 
material facts alleged in the complaint. Any defendant that fails to 
file and serve an answer within the time and in the manner prescribed 
by this part may be deemed in default and an order may be entered 
against such defendant in accordance with the allegations contained in 
the complaint.


Sec.  1.727  Cross-complaints and counterclaims.

    Cross-complaints seeking any relief within the jurisdiction of the 
Commission against any party (complainant or defendant) to that 
proceeding are prohibited. Any claim that might otherwise meet the 
requirements of a cross-complaint may be filed as a separate complaint 
in accordance with Sec. Sec.  1.720 through 1.740. For purposes of this 
subpart, the term ``cross-complaint'' shall include counterclaims.


Sec.  1.728  Replies.

    (a) A complainant shall file and serve a reply within 10 calendar 
days of service of the answer, unless otherwise directed by the 
Commission. The reply shall contain statements of relevant, material 
facts and legal arguments that respond to the factual allegations and 
legal arguments made by the defendant. Other allegations or arguments 
will not be considered by the Commission.
    (b) Failure to reply will not be deemed an admission of any 
allegations contained in the responsive pleading, except with respect 
to any affirmative defense set forth therein. Failure to

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reply to an affirmative defense shall be deemed an admission of such 
affirmative defense and of any facts supporting such affirmative 
defense that are not specifically contradicted in the complaint.
    (c) The reply shall include legal analysis relevant to the claims 
and arguments set forth therein.
    (d) The reply shall include an information designation containing:
    (1) The name and, if known, the address and telephone number of 
each individual likely to have information relevant to the proceeding 
and addressed in the reply, along with the subjects of that 
information, excluding individuals otherwise identified in the 
complaint, answer, reply, or exhibits thereto, and individuals employed 
by another party; and
    (2) A copy--or a description by category and location--of all 
relevant documents, electronically stored information, and tangible 
things that the disclosing party has in its possession, custody, or 
control that are addressed in the reply, excluding documents submitted 
with the complaint or answer.


Sec.  1.729  Motions.

    (a) A request for a Commission order shall be by written motion, 
stating with particularity the grounds and authority therefor, 
including any supporting legal analysis, and setting forth the relief 
sought.
    (b) Motions to compel discovery must contain a certification by the 
moving party that a good faith attempt to resolve the dispute was made 
prior to filing the motion.
    (c) Motions seeking an order that the allegations in the complaint 
be made more definite and certain are prohibited.
    (d) Motions to dismiss all or part of a complaint are permitted. 
The filing of a motion to dismiss does not suspend any other filing 
deadlines under the Commission's rules, unless staff issues an order 
suspending such deadlines.
    (e) Oppositions to motions shall be filed and served within 5 
business days after the motion is served. Oppositions shall be limited 
to the specific issues and allegations contained in the motion; when a 
motion is incorporated in an answer to a complaint, the opposition to 
such motion shall not address any issues presented in the answer that 
are not also specifically raised in the motion. Failure to oppose any 
motion may constitute grounds for granting the motion.
    (f) No reply may be filed to an opposition to a motion, except 
under direction of Commission staff.


Sec.  1.730  Discovery.

    (a) A complainant may file with the Commission and serve on a 
defendant, concurrently with its complaint, up to 10 written 
interrogatories. A defendant may file with the Commission and serve on 
a complainant, concurrently with its answer, up to 10 written 
interrogatories. A complainant may file with the Commission and serve 
on a defendant, concurrently with its reply, up to five additional 
written interrogatories. Subparts of any interrogatory will be counted 
as separate interrogatories for purposes of compliance with this limit. 
Interrogatories filed and served pursuant to this procedure may be used 
to seek discovery of any non-privileged matter that is relevant to the 
material facts in dispute in the pending proceeding. This procedure may 
not be employed for the purpose of delay, harassment, or obtaining 
information that is beyond the scope of permissible inquiry related to 
the material facts in dispute in the proceeding.
    (b) Interrogatories filed and served pursuant to paragraph (a) of 
this section shall contain an explanation of why the information sought 
in each interrogatory is both necessary to the resolution of the 
dispute and not available from any other source.
    (c) Unless otherwise directed by the Commission, within seven 
calendar days, a responding party shall file with the Commission and 
serve on the propounding party any opposition and objections to 
interrogatories. The grounds for objecting to an interrogatory must be 
stated with specificity. Unless otherwise directed by the Commission, 
any interrogatories to which no opposition or objection is raised shall 
be answered within 20 calendar days.
    (d) Commission staff shall rule in writing on the scope of, and 
schedule for answering, any disputed interrogatories based upon the 
justification for the interrogatories properly filed and served 
pursuant to paragraph (a) of this section, and any objections or 
oppositions thereto, properly filed and served pursuant to paragraph 
(c) of this section.
    (e) Interrogatories shall be answered separately and fully in 
writing under oath or affirmation by the party served, or if such party 
is a public or private corporation or partnership or association, by 
any officer or agent who shall furnish such information as is available 
to the party. The answers shall be signed by the person making them, 
and the attorney who objects must sign any objections. The answers 
shall be filed with the Commission and served on the propounding party.
    (f) The Commission, in its discretion, may allow additional 
discovery, including, but not limited to, document production and/or 
depositions, and it may modify the scope, means and scheduling of 
discovery in light of the needs of a particular case and the 
requirements of applicable statutory deadlines.
    (g) The Commission may, in its discretion, require parties to 
provide documents to the Commission in a scanned or other electronic 
format that:
    (1) Indexes the documents by useful identifying information; and
    (2) Allows staff to annotate the index so as to make the format an 
efficient means of reviewing the documents.
    (h) A propounding party asserting that a responding party has 
provided an inadequate or insufficient response to a discovery request 
may file a motion to compel within ten days of the service of such 
response, or as otherwise directed by Commission staff, pursuant to the 
requirements of Sec.  1.729.


Sec.  1.731  Confidentiality of information produced or exchanged.

    (a) Any information produced in the course of a formal complaint 
proceeding may be designated as confidential by either party to the 
proceeding or a third party if the party believes in good faith that 
the materials fall within an exemption to disclosure contained in the 
Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(1) through (9), and 
under Sec.  0.459 of this chapter. Any party asserting confidentiality 
for such materials must:
    (1) Clearly mark each page, or portion thereof, for which a 
confidential designation is claimed. The party claiming confidentiality 
should restrict its designations to encompass only the specific 
information that it asserts is confidential. If a confidential 
designation is challenged, the party claiming confidentiality shall 
have the burden of demonstrating, by a preponderance of the evidence, 
that the materials designated as confidential fall under the standards 
for nondisclosure enunciated in the FOIA and that the designation is 
narrowly tailored to encompass only confidential information.
    (2) File with the Commission, using the Commission's Electronic 
Comment Filing System, a public version of the materials that redacts 
any confidential information and clearly marks each page of the 
redacted public version with a header stating ``Public Version.'' The 
redacted document shall be machine-readable whenever technically 
possible. Where the document to be filed electronically contains 
metadata that is

[[Page 44836]]

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 confidential information and 
clearly marks each page of the unredacted confidential version with a 
header stating ``Confidential Version.'' The unredacted version must be 
filed on the same day as the redacted version.
    (4) Serve one hard copy of the filed unredacted materials and one 
hard copy of the filed redacted materials on the attorney of record for 
each party to the proceeding, or, where a party is not represented by 
an attorney, each party to the proceeding either by hand delivery, 
overnight delivery, or email, together with a proof of such service in 
accordance with the requirements of Sec. Sec.  1.47(g) and 1.734(f).
    (b) An attorney of record for a party or a party that receives 
unredacted materials marked as confidential may disclose such materials 
solely to the following persons, only for use in prosecuting or 
defending a party to the complaint action, and only to the extent 
necessary to assist in the prosecution or defense of the case:
    (1) Support personnel for counsel of record representing the 
parties in the complaint action;
    (2) Officers or employees of the receiving party who are directly 
involved in the prosecution or defense of the case;
    (3) Consultants or expert witnesses retained by the parties; and
    (4) Court reporters and stenographers in accordance with the terms 
and conditions of this section.
    (c) The individuals identified in paragraph (b) of this section 
shall not disclose information designated as confidential to any person 
who is not authorized under this section to receive such information, 
and shall not use the information in any activity or function other 
than the prosecution or defense in the case before the Commission. Each 
such individual who is provided access to the information shall sign a 
declaration or affidavit stating that the individual has personally 
reviewed the Commission's rules and understands the limitations they 
impose on the signing party.
    (d) Parties may make copies of materials marked confidential solely 
for use by the Commission or persons designated in paragraph (b) of 
this section. Each party shall maintain a log recording the number of 
copies made of all confidential material and the persons to whom the 
copies have been provided.
    (e) The Commission may adopt a protective order with further 
restrictions as appropriate.
    (f) Upon termination of a formal complaint proceeding, including 
all appeals and petitions, the parties shall ensure that all originals 
and reproductions of any confidential materials, along with the log 
recording persons who received copies of such materials, shall be 
provided to the producing party. In addition, upon final termination of 
the proceeding, any notes or other work product derived in whole or in 
part from the confidential materials of an opposing or third party 
shall be destroyed.


Sec.  1.732  Other required written submissions.

    (a) The Commission may, in its discretion, require the parties to 
file briefs summarizing the facts and issues presented in the pleadings 
and other record evidence and presenting relevant legal authority and 
analysis. The Commission may limit the scope of any briefs to certain 
subjects or issues. Unless otherwise directed by the Commission, all 
briefs shall include all legal and factual claims and defenses 
previously set forth in the complaint, answer, or any other pleading 
submitted in the proceeding.
    (b) Claims and defenses previously made but not reflected in the 
briefs will be deemed abandoned.
    (c) The Commission may require the parties to submit any additional 
information it deems appropriate for a full, fair, and expeditious 
resolution of the proceeding.


Sec.  1.733  Status conference.

    (a) In any complaint proceeding, the Commission may, in its 
discretion, direct the attorneys and/or the parties to appear before it 
for a status conference. A status conference may include discussion of:
    (1) Simplification or narrowing of the issues;
    (2) The necessity for or desirability of additional pleadings or 
evidentiary submissions;
    (3) Obtaining admissions of fact or stipulations between the 
parties as to any or all of the matters in controversy;
    (4) Settlement of all or some of the matters in controversy by 
agreement of the parties;
    (5) Whether discovery is necessary and, if so, the scope, type, and 
schedule for such discovery;
    (6) The schedule for the remainder of the case and the dates for 
any further status conferences; and
    (7) Such other matters that may aid in the disposition of the 
complaint.
    (b)(1) Parties shall meet and confer prior to the initial status 
conference to discuss:
    (i) Settlement prospects;
    (ii) Discovery;
    (iii) Issues in dispute;
    (iv) Schedules for pleadings;
    (v) Joint statement of stipulated facts, disputed facts, and key 
legal issues; and
    (2) Parties shall submit a joint statement of all proposals agreed 
to and disputes remaining as a result of such meeting to Commission 
staff on a date specified by the Commission.
    (c) In addition to the initial status conference referenced in 
paragraph (a) of this section, any party may also request that a 
conference be held at any time after the complaint has been filed.
    (d) During a status conference, the Commission staff may issue oral 
rulings pertaining to a variety of matters relevant to the conduct of a 
formal complaint proceeding including, inter alia, procedural matters, 
discovery, and the submission of briefs or other evidentiary materials.
    (e) Status conferences will be scheduled by the Commission staff at 
such time and place as it may designate to be conducted in person or by 
telephone conference call.
    (f) The failure of any attorney or party, following reasonable 
notice, to appear at a scheduled conference will be deemed a waiver by 
that party and will not preclude the Commission staff from conferring 
with those parties or counsel present.


Sec.  1.734  Fee remittance; electronic filing; copies; service; 
separate filings against multiple defendants.

    (a) Complaints may not be brought against multiple defendants 
unless they are commonly owned or controlled, are alleged to have acted 
in concert, are alleged to be jointly liable to complainant, or the 
complaint concerns common questions of law or fact. Complaints may, 
however, be consolidated by the Commission for disposition.
    (b) The complainant shall remit separately the correct fee either 
by check, wire transfer, or electronically, in accordance with part 1, 
subpart G (see Sec.  1.1106) and, shall file an original copy of the 
complaint, using the Commission's Electronic Comment Filing System. If 
a complaint is addressed against multiple defendants, the complainant 
shall pay a separate fee for each additional defendant.
    (c) The complainant shall serve the complaint by hand delivery on 
either the named defendant or one of the

[[Page 44837]]

named defendant's registered agents for service of process on the same 
date that the complaint is filed with the Commission in accordance with 
the requirements of paragraph (b) of this section.
    (d) Upon receipt of the complaint by the Commission, the Commission 
shall promptly send, by email, to each defendant named in the 
complaint, notice of the filing of the complaint. The Commission shall 
additionally send by email, to all parties, a schedule detailing the 
date the answer and any other applicable pleading will be due and the 
date, time, and location of the initial status conference.
    (e) Parties shall provide hard copies of all submissions to staff 
in the Enforcement Bureau upon request.
    (f) All subsequent pleadings and briefs filed in any formal 
complaint proceeding, as well as all letters, documents, or other 
written submissions, shall be filed using the Commission's Electronic 
Comment Filing System, excluding confidential material as set forth in 
Sec.  1.731. In addition, all pleadings and briefs filed in any formal 
complaint proceeding, as well as all letters, documents, or other 
written submissions, shall be served by the filing party on the 
attorney of record for each party to the proceeding, or, where a party 
is not represented by an attorney, each party to the proceeding either 
by hand delivery, overnight delivery, or email, together with a proof 
of such service in accordance with the requirements of 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 complaints filed pursuant to Sec.  1.723 shall 
conform to the requirements set forth in this section, except that the 
complainant need not submit a filing fee.


Sec.  1.735  Conduct of proceedings.

    (a) The Commission may issue such orders and conduct its 
proceedings as will best conduce to the proper dispatch of business and 
the ends of justice.
    (b) The Commission may decide each complaint upon the filings and 
information before it, may request additional information from the 
parties, and may require one or more informal meetings with the parties 
to clarify the issues or to consider settlement of the dispute.


Sec.  1.736  Accelerated Docket Proceedings.

    (a) With the exception of complaint proceedings under 47 U.S.C. 
255, 617, and 619, and part 14 of this chapter, parties to a formal 
complaint proceeding against a common carrier, or a pole attachment 
complaint proceeding against a cable television system operator, a 
utility, or a telecommunications carrier, may request inclusion on the 
Accelerated Docket. Proceedings on the Accelerated Docket must be 
concluded within 60 days, and are therefore subject to shorter pleading 
deadlines and other modifications to the procedural rules that govern 
formal complaint proceedings.
    (b) A complainant that seeks inclusion of a proceeding on the 
Accelerated Docket shall submit a request to the Chief of the 
Enforcement Bureau's Market Disputes Resolution Division, by phone and 
in writing, prior to filing the complaint.
    (c) Within five days of receiving service of any formal complaint 
against a common carrier, or a pole attachment complaint against a 
cable television system operator, a utility, or a telecommunications 
carrier, a defendant may submit a request seeking inclusion of the 
proceeding on the Accelerated Docket to the Chief of the Enforcement 
Bureau's Market Disputes Resolution Division. The defendant shall 
submit such request by phone and in writing, and contemporaneously 
transmit a copy of the written request to all parties to the 
proceeding.
    (d) Commission staff has discretion to decide whether a complaint, 
or portion of a complaint, is suitable for inclusion on the Accelerated 
Docket.
    (e) In appropriate cases, Commission staff may require that the 
parties participate in pre-filing settlement negotiations or mediation 
under Sec.  1.737.
    (f) If the parties do not resolve their dispute and the matter is 
accepted for handling on the Accelerated Docket, staff will establish 
the schedule and process for the proceeding.
    (g) If it appears at any time that a proceeding on the Accelerated 
Docket is no longer appropriate for such treatment, Commission staff 
may remove the matter from the Accelerated Docket either on its own 
motion or at the request of any party.
    (h) In Accelerated Docket proceedings, the Commission may conduct a 
minitrial, or a trial-type hearing, as an alternative to deciding a 
case on a written record. Minitrials shall take place no later than 
between 40 and 45 days after the filing of the complaint. A Commission 
Administrative Law Judge (``ALJ'') or staff may preside at the 
minitrial.
    (i) Applications for review of staff decisions issued on delegated 
authority in Accelerated Docket proceedings shall comply with the 
filing and service requirements in Sec.  1.115(e)(4). In Accelerated 
Docket proceedings which raise issues that may not be decided on 
delegated authority (see 47 U.S.C. 155(c)(1); 47 CFR 0.331(c)), the 
staff decision will be a recommended decision subject to adoption or 
modification by the Commission. Any party to the proceeding that seeks 
modification of the recommended decision shall do so by filing comments 
challenging the decision within 15 days of its release. Opposition 
comments, shall be filed within 15 days of the comments challenging the 
decision; reply comments shall may be filed 10 days thereafter and 
shall be limited to issues raised in the opposition comments.
    (j) If no party files comments challenging the recommended 
decision, the Commission will issue its decision adopting or modifying 
the recommended decision within 45 days of its release. If parties to 
the proceeding file comments to the recommended decision, the 
Commission will issue its decision adopting or modifying the 
recommended decision within 30 days of the filing of the final 
comments.

0
8. Add Sec. Sec.  1.737 through 1.740 to read as follows:


Sec.  1.737  Mediation.

    (a) The Commission encourages parties to attempt to settle or 
narrow their disputes. To that end, staff in the Enforcement Bureau's 
Market Disputes Resolution Division are available to conduct 
mediations. Staff will determine whether a matter is appropriate for 
mediation. Participation in mediation is generally voluntary, but may 
be required as a condition for including a matter on the Accelerated 
Docket.

[[Page 44838]]

    (b) Parties may request mediation of a dispute before the filing of 
a complaint. After a complaint has been filed, parties may request 
mediation as long as a proceeding is pending before the Commission.
    (c) Parties may request mediation by: Calling the Chief of the 
Enforcement Bureau's Market Disputes Resolution Division; submitting a 
written request in a letter addressed to the Chief of the Market 
Disputes Resolution Division; or including a mediation request in any 
pleading in a formal complaint proceeding, or an informal complaint 
proceeding under Sec.  1.717. Any party requesting mediation must 
verify that it has attempted to contact all other parties to determine 
whether they are amenable to mediation, and shall state the response of 
each party, if any.
    (d) Staff will schedule the mediation in consultation with the 
parties. Staff may request written statements and other information 
from the parties to assist in the mediation.
    (e) In any proceeding to which no statutory deadline applies, staff 
may, in its discretion, hold a case in abeyance pending mediation.
    (f) The parties and Commission staff shall keep confidential all 
written and oral communications prepared or made for purposes of the 
mediation, including mediation submissions, offers of compromise, and 
staff and party comments made during the course of the mediation 
(Mediation Communications). Neither staff nor the parties may use, 
disclose or seek to disclose Mediation Communications in any proceeding 
before the Commission (including an arbitration or a formal complaint 
proceeding involving the instant dispute) or before any other tribunal, 
unless compelled to do so by law. Documents and information that are 
otherwise discoverable do not become Mediation Communications merely 
because they are disclosed or discussed during the mediation. Unless 
otherwise directed by Commission staff, the existence of the mediation 
will not be treated as confidential. A party may request that the 
existence of the mediation be treated as confidential in a case where 
this fact has not previously been publicly disclosed, and staff may 
grant such a request for good cause shown.
    (g) Any party or Commission staff may terminate a mediation by 
notifying other participants of their decision to terminate. Staff 
shall promptly confirm in writing that the mediation has ended. The 
confidentiality rules in paragraph (f) of this section shall continue 
to apply to any Mediation Communications. Further, unless otherwise 
directed, any staff ruling requiring that the existence of the 
mediation be treated as confidential will continue to apply after the 
mediation has ended.
    (h) For disputes arising under 47 U.S.C. 255, 617, and 619, and the 
advanced communications services and equipment rules, parties shall 
submit the Request for Dispute Assistance in accordance with Sec.  
14.32 of this chapter.


Sec.  1.738  Complaints filed pursuant to 47 U.S.C. 271(d)(6)(B).

    (a) Where a complaint is filed pursuant to 47 U.S.C. 271(d)(6)(B), 
parties shall indicate whether they are willing to waive the 90 day 
resolution deadline contained in 47 U.S.C. 271(d)(6)(B) in the 
following manner:
    (1) The complainant shall so indicate in both the complaint itself 
and in the Formal Complaint Intake Form, and the defendant shall so 
indicate in its answer; or
    (2) The parties shall indicate their agreement to waive the 90 day 
resolution deadline to the Commission staff at the initial status 
conference, to be held in accordance with Sec.  1.733.
    (b) Requests for waiver of the 90 day resolution deadline for 
complaints filed pursuant to 47 U.S.C. 271(d)(6)(B) will not be 
entertained by the Commission staff subsequent to the initial status 
conference, absent a showing by the complainant and defendant that such 
waiver is in the public interest.


Sec.  1.739  Primary jurisdiction referrals.

    (a) Any party to a case involving claims under the Act that has 
been referred to the Commission by a court pursuant to the primary 
jurisdiction doctrine must contact the Market Disputes Resolution 
Division of the Enforcement Bureau for guidance before filing any 
pleadings or otherwise proceeding before the Commission.
    (b) Based upon an assessment of the procedural history and the 
nature of the issues involved, the Market Disputes Resolution Division 
will determine the procedural means by which the Commission will handle 
the primary jurisdiction referral.
    (c) Failure to contact the Market Disputes Resolution Division 
prior to filing any pleadings or otherwise proceeding before the 
Commission, or failure to abide by the Division's determinations 
regarding the referral, may result in dismissal.


Sec.  1.740  Review period for section 208 formal complaints not 
governed by section 208(b)(1) of the Act.

    (a) Except in extraordinary circumstances, final action on a formal 
complaint filed pursuant to section 208 of the Act, and not governed by 
section 208(b)(1), should be expected no later than 270 days from the 
date the complaint is filed with the Commission.
    (b) The Enforcement Bureau shall have the discretion to pause the 
270-day review period in situations where actions outside the 
Commission's control are responsible for unreasonably delaying 
Commission review of a complaint referenced in paragraph (a) of this 
section.

0
9. Amend the table of contents of part 1 by revising the entries in 
Subpart J to read as follows:
* * * * *

Subpart J--Pole Attachment Complaint Procedures

Sec.
1.1401 Purpose.
1.1402 Definitions.
1.1403 Duty to provide access; modifications; notice of removal, 
increase or modification; petition for temporary stay; and cable 
operator notice.
1.1404 Pole attachment complaint proceedings.
1.1405 Dismissal of pole attachment complaints for lack of 
jurisdiction.
1.1406 Commission consideration of the complaint.
1.1407 Remedies.
1.1408 Imputation of rates; modification costs.
1.1409 Allocation of unusable space costs.
1.1410 Use of presumptions in calculating the space factor.
1.1411 Timeline for access to utility poles.
1.1412 Contractors for survey and make-ready.
1.1413 Complaints by incumbent local exchange carriers.
1.1414 Review period for pole access complaints.
* * * * *

0
10. Revise Sec.  1.1401 to read as follows:


Sec.  1.1401  Purpose.

    The rules and regulations contained in subpart J of this part 
provide complaint and enforcement procedures to ensure that 
telecommunications carriers and cable system operators have 
nondiscriminatory access to utility poles, ducts, conduits, and rights-
of-way on rates, terms, and conditions that are just and reasonable. 
They also provide complaint and enforcement procedures for incumbent 
local exchange carriers (as defined in 47 U.S.C. 251(h)) to ensure that 
the rates, terms, and conditions of their access to pole attachments 
are just and reasonable.

0
11. Amend Sec.  1.1402 by revising paragraph (f) to read as follows:


Sec.  1.1402  Definitions.

* * * * *
    (f) The term defendant means a cable television system operator, a 
utility, or

[[Page 44839]]

a telecommunications carrier against whom a complaint is filed.
* * * * *

0
12. Amend Sec.  1.1403 by revising paragraphs (c)(1) and (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.

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

0
13. Revise Sec. Sec.  1.1404 through 1.1405 to read as follows:


Sec.  1.1404  Pole attachment complaint proceedings.

    (a) Pole attachment complaint proceedings shall be governed by the 
formal complaint rules in subpart E of this part, Sec. Sec.  1.720-
1.740, except as otherwise provided in this subpart J.
    (b) The complaint shall be accompanied by a certification of 
service on the named defendant, and each of the Federal, State, and 
local governmental agencies that regulate any aspect of the services 
provided by the complainant or defendant.
    (c) In a case where it is claimed that a rate, term, or condition 
is unjust or unreasonable, the complaint shall contain a statement that 
the State has not certified to the Commission that it regulates the 
rates, terms and conditions for pole attachments. The complaint shall 
include a statement that the utility is not owned by any railroad, any 
person who is cooperatively organized or any person owned by the 
Federal Government or any State.
    (d) The complaint shall be accompanied by a copy of the pole 
attachment agreement, if any, between the cable television system 
operator or telecommunications carrier and the utility. If there is no 
present pole attachment agreement, the complaint shall contain:
    (1) A statement that the utility uses or controls poles, ducts, or 
conduits used or designated, in whole or in part, for wire 
communication; and
    (2) A statement that the cable television system operator or 
telecommunications carrier currently has attachments on the poles, 
ducts, conduits, or rights-of-way.
    (e) The complaint shall state with specificity the pole attachment 
rate, term or condition which is claimed to be unjust or unreasonable 
and provide all data and information supporting such claim. Data and 
information supporting the complaint (including all information 
necessary for the Commission to apply the rate formulas in Sec.  1.1406 
should be based upon historical or original cost methodology, insofar 
as possible. Data should be derived from ARMIS, FERC 1, or other 
reports filed with state or federal regulatory agencies (identify 
source). The complainant shall also specify any other information and 
argument relied upon to attempt to establish that a rate, term, or 
condition is not just and reasonable.
    (f) A utility must supply a cable television system operator or 
telecommunications carrier the information required in paragraph (e) of 
this section, as applicable, along with the supporting pages from its 
ARMIS, FERC Form 1, or other report to a regulatory body, and 
calculations made in connection with these figures, within 30 days of 
the request by the cable television system operator or 
telecommunications carrier.
    (g) If any of the information and data required in paragraphs (e) 
and (f) of this section is not provided to the cable television system 
operator or telecommunications carrier by the utility upon reasonable 
request, the cable television system operator or telecommunications 
carrier shall include a statement indicating the steps taken to obtain 
the information from the utility, including the dates of all requests. 
No complaint filed by a cable television system operator or 
telecommunications carrier shall be dismissed where the utility has 
failed to provide the information required under paragraphs (e) and (f) 
after such reasonable request.


Sec.  1.1405  Dismissal of pole attachment complaints for lack of 
jurisdiction.

    (a) The complaint shall be dismissed for lack of jurisdiction in 
any case where a suitable certificate has been filed by a State 
pursuant to paragraph (b) of this section. Such certificate shall be 
conclusive proof of lack of jurisdiction of this Commission. A 
complaint alleging a denial of access shall be dismissed for lack of 
jurisdiction in any case where the defendant or a State offers proof 
that the State is regulating such access matters. Such proof should 
include a citation to state laws and regulations governing access and 
establishing a procedure for resolving access complaints in a state 
forum. A complaint against a utility shall also be dismissed if the 
utility does not use or control poles, ducts, or conduits used or 
designated, in whole or in part, for wire communication or if the 
utility does not meet the criteria of Sec.  1.1402(a).
    (b) It will be rebuttably presumed that the state is not regulating 
pole attachments if the Commission does not receive certification from 
a state that:
    (1) It regulates rates, terms and conditions for pole attachments;
    (2) In so regulating such rates, terms and conditions, the state 
has the authority to consider and does consider the interests of the 
consumers of the services offered via such attachments, as well as the 
interests of the consumers of the utility services; and
    (3) It has issued and made effective rules and regulations 
implementing the state's regulatory authority over pole attachments 
(including a specific methodology for such regulation which has been 
made publicly available in the state).
    (c) Upon receipt of such certification, the Commission shall give 
public notice. In addition, the Commission shall compile and publish 
from time to time, a listing of states which have provided 
certification.
    (d) Upon receipt of such certification, the Commission shall 
forward any pending case thereby affected to the state regulatory 
authority, shall so notify the parties involved and shall give public 
notice thereof.
    (e) Certification shall be by order of the state regulatory body or 
by a person having lawful delegated authority under provisions of state 
law to submit such certification. Said person shall provide in writing 
a statement that he or she has such authority and shall cite the law,

[[Page 44840]]

regulation or other instrument conferring such authority.
    (f) Notwithstanding any such certification, jurisdiction will 
revert to this Commission with respect to any individual matter, unless 
the state takes final action on a complaint regarding such matter:
    (1) Within 180 days after the complaint is filed with the state, or
    (2) Within the applicable periods prescribed for such final action 
in such rules and regulations of the state, if the prescribed period 
does not extend beyond 360 days after the filing of such complaint.


Sec. Sec.  1.1406, 1.1407 and 1.1408   [Removed]

0
14. Remove Sec. Sec.  1.1406, 1.1407 and 1.1408.


Sec.  1.1409   [Redesignated as Sec.  1.1406]

0
15. Redesignate Sec.  1.1409 as Sec.  1.1406, and revise newly 
designated Sec.  1.1406 to read as follows:


Sec.  1.1406  Commission consideration of the complaint.

    (a) The complainant shall have the burden of establishing a prima 
facie case that the rate, term, or condition is not just and reasonable 
or that the denial of access violates 47 U.S.C. 224(f). If, however, a 
utility argues that the proposed rate is lower than its incremental 
costs, the utility has the burden of establishing that such rate is 
below the statutory minimum just and reasonable rate. In a case 
involving a denial of access, the utility shall have the burden of 
proving that the denial was lawful, once a prima facie case is 
established by the complainant.
    (b) The Commission shall determine whether the rate, term or 
condition complained of is just and reasonable. For the purposes of 
this paragraph, a rate is just and reasonable if it assures a utility 
the recovery of not less than the additional costs of providing pole 
attachments, nor more than an amount determined by multiplying the 
percentage of the total usable space, or the percentage of the total 
duct or conduit capacity, which is occupied by the pole attachment by 
the sum of the operating expenses and actual capital costs of the 
utility attributable to the entire pole, duct, conduit, or right-of-
way. The Commission shall exclude from actual capital costs those 
reimbursements received by the utility from cable operators and 
telecommunications carriers for non-recurring costs.
    (c) The Commission shall deny the complaint if it determines that 
the complainant has not established a prima facie case, or that the 
rate, term or condition is just and reasonable, or that the denial of 
access was lawful.
    (d) The Commission will apply the following formulas for 
determining a maximum just and reasonable rate:
    (1) The following formula shall apply to attachments to poles by 
cable operators providing cable services. This formula shall also apply 
to attachments to poles by any telecommunications carrier (to the 
extent such carrier is not a party to a pole attachment agreement) or 
cable operator providing telecommunications services until February 8, 
2001:
[GRAPHIC] [TIFF OMITTED] TR04SE18.000

    (2) With respect to attachments to poles by any telecommunications 
carrier or cable operator providing telecommunications services, the 
maximum just and reasonable rate shall be the higher of the rate 
yielded by paragraphs (d)(2)(i) or (d)(2)(ii) of this section.
    (i) The following formula applies to the extent that it yields a 
rate higher than that yielded by the applicable formula in paragraph 
(d)(2)(ii) of this section:

Rate = Space Factor x Cost

Where Cost

in Service Areas where the number of Attaching Entities is 5 = 0.66 
x (Net Cost of a Bare Pole x Carrying Charge Rate)
in Service Areas where the number of Attaching Entities is 4 = 0.56 
x (Net Cost of a Bare Pole x Carrying Charge Rate)
in Service Areas where the number of Attaching Entities is 3 = 0.44 
x (Net Cost of a Bare Pole x Carrying Charge Rate)
in Service Areas where the number of Attaching Entities is 2 = 0.31 
x (Net Cost of a Bare Pole x Carrying Charge Rate)
in Service Areas where the number of Attaching Entities is not a 
whole number = N x (Net Cost of a Bare Pole x Carrying Charge Rate), 
where N is interpolated from the cost allocator associated with the 
nearest whole numbers above and below the number of Attaching 
Entities.
[GRAPHIC] [TIFF OMITTED] TR04SE18.001

    (ii) The following formula applies to the extent that it yields a 
rate higher than that yielded by the applicable formula in paragraph 
(d)(2)(i) of this section:

[[Page 44841]]

[GRAPHIC] [TIFF OMITTED] TR04SE18.002

    (3) The following formula shall apply to attachments to conduit by 
cable operators and telecommunications carriers:
[GRAPHIC] [TIFF OMITTED] TR04SE18.003

    simplified as:
    [GRAPHIC] [TIFF OMITTED] TR04SE18.004
    
    (4) If no inner-duct is installed the fraction, ``1 Duct divided by 
the No. of Inner-Ducts'' is presumed to be \1/2\.


Sec.  1.1410  [Redesignated as Sec.  1.1407]

0
16. Redesignate Sec.  1.1410 as Sec.  1.1407, and revise newly 
designated Sec.  1.1407 to read as follows:


Sec.  1.1407  Remedies.

    (a) If the Commission determines that the rate, term, or condition 
complained of is not just and reasonable, it may prescribe a just and 
reasonable rate, term, or condition and may:
    (1) Terminate the unjust and/or unreasonable rate, term, or 
condition;
    (2) Substitute in the pole attachment agreement the just and 
reasonable rate, term, or condition established by the Commission; and/
or
    (3) Order a refund, or payment, if appropriate. The refund or 
payment will normally be the difference between the amount paid under 
the unjust and/or unreasonable rate, term, or condition and the amount 
that would have been paid under the rate, term, or condition 
established by the Commission, plus interest, consistent with the 
applicable statute of limitations.
    (b) If the Commission determines that access to a pole, duct, 
conduit, or right-of-way has been unlawfully denied or delayed, it may 
order that access be permitted within a specified time frame and in 
accordance with specified rates, terms, and conditions.


Sec. Sec.  1.1411 through 1.1415   [Removed]

0
17. Remove Sec. Sec.  1.1411 through 1.1415.


Sec.  1.1416   [Redesignated as Sec.  1.1408]

0
18. Redesignate Sec.  1.1416 as Sec.  1.1408.


Sec.  1.1417   [Redesignated as Sec.  1.1409]

0
19. Redesignate Sec.  1.1417 as Sec.  1.1409, and amend newly 
designated Sec.  1.1409 by revising paragraph (a) and (c) to read as 
follows:


Sec.  1.1409  Allocation of Unusable Space Costs.

    (a) With respect to the formula referenced in Sec.  1.1406(d)(2), a 
utility shall apportion the cost of providing unusable space on a pole 
so that such apportionment equals two-thirds of the costs of providing 
unusable space that would be allocated to such entity under an equal 
apportionment of such costs among all attaching entities.
* * * * *
    (c) Utilities may use the following rebuttable presumptive averages 
when calculating the number of attaching entities with respect to the 
formula referenced in Sec.  1.1406(d)(2). For non-urbanized service 
areas (under 50,000 population), a presumptive average number of 
attaching entities of three. For urbanized service areas (50,000 or 
higher population), a presumptive average number of attaching entities 
of five. If any part of the utility's service area within the state has 
a designation of urbanized (50,000 or higher population) by the Bureau 
of Census, United States Department of Commerce, then all of that 
service area shall be designated as urbanized for purposes of 
determining the presumptive average number of attaching entities.
* * * * *


Sec.  1.1418  [Redesignated as Sec.  1.1410]

0
20. Redesignate Sec.  1.1418 as Sec.  1.1410, and revise newly 
designated Sec.  1.1410 to read as follows:


Sec.  1.1410  Use of presumptions in calculating the space factor.

    With respect to the formulas referenced in Sec.  1.1406(d)(1) and 
(d)(2), the space occupied by an attachment is presumed to be one foot. 
The amount of usable space is presumed to be 13.5 feet. The amount of 
unusable space is presumed to be 24 feet. The pole height is presumed 
to be 37.5 feet. These presumptions may be rebutted by either party.


Sec.  1.1420  [Redesignated as Sec.  1.1411]

0
21. Redesignate Sec.  1.1420 as Sec.  1.1411, and revise paragraph (d) 
and the introductory text of paragraph (i) to read as follows:

[[Page 44842]]

Sec.  1.1411  Timeline for access to utility poles.

* * * * *
    (d) Estimate. Where a request for access is not denied, a utility 
shall present to a cable operator or telecommunications carrier an 
estimate of charges to perform all necessary make-ready work within 14 
days of providing the response required by paragraph (c) of this 
section, or in the case where a prospective attacher's contractor has 
performed a survey, within 14 days of receipt by the utility of such 
survey.
    (1) A utility may withdraw an outstanding estimate of charges to 
perform make-ready work beginning 14 days after the estimate is 
presented.
    (2) A cable operator or telecommunications carrier may accept a 
valid estimate and make payment any time after receipt of an estimate 
but before the estimate is withdrawn.
* * * * *
    (i) If a utility fails to respond as specified in paragraph (c) of 
this section, a cable operator or telecommunications carrier requesting 
attachment in the communications space may, as specified in Sec.  
1.1412, hire a contractor to complete a survey. If make-ready is not 
complete by the date specified in paragraph (e)(1)(ii) of this section, 
a cable operator or telecommunications carrier requesting attachment in 
the communications space may hire a contractor to complete the make-
ready:
* * * * *


Sec.  1.1422  [Redesignated as 1.1412]

0
22. Redesignate Sec.  1.1422 as Sec.  1.1412, and amend newly 
designated Sec.  1.1412 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  1.1412  Contractors for survey and make-ready.

    (a) A utility shall make available and keep up-to-date a reasonably 
sufficient list of contractors it authorizes to perform surveys and 
make-ready in the communications space on its utility poles in cases 
where the utility has failed to meet deadlines specified in Sec.  
1.1411.
    (b) If a cable operator or telecommunications carrier hires a 
contractor for purposes specified in Sec.  1.1411, it shall choose from 
among a utility's list of authorized contractors.
* * * * *


Sec. Sec.  1.1424  [Redesignated as Sec.  1.1413]

0
23. Redesignate Sec.  1.1424 as Sec.  1.1413.


Sec.  1.1425  [Redesignated as Sec.  1.1414]

0
24. Redesignate Sec.  1.1425 as Sec.  1.1414, and revise newly 
designated Sec.  1.1414 to read as follows:


Sec.  1.1414  Review period for pole attachment complaints.

    (a) Pole access complaints. Except in extraordinary circumstances, 
final action on a complaint where a cable television system operator or 
provider of telecommunications service claims that it has been denied 
access to a pole, duct, conduit, or right-of-way owned or controlled by 
a utility should be expected no later than 180 days from the date the 
complaint is filed with the Commission. The Enforcement Bureau shall 
have the discretion to pause the 180-day review period in situations 
where actions outside the Enforcement Bureau's control are responsible 
for delaying review of a pole access complaint.
    (b) Other pole attachment complaints. All other pole attachment 
complaints shall be governed by the review period in Sec.  1.740.

PART 6--ACCESS TO TELECOMMUNICATIONS SERVICE, TELECOMMUNICATIONS 
EQUIPMENT AND CUSTOMER PREMISES EQUIPMENT BY PERSONS WITH 
DISABILITIES

0
25. The authority citation for part 6 continues to read as follows:

    Authority:  47 U.S.C. 151-154, 208, 255, and 303(r).


0
26. Revise Sec.  6.15 to read as follows:


Sec.  6.15  Generally.

    (a) All manufacturers of telecommunications equipment or customer 
premises equipment and all providers of telecommunications services, as 
defined under this subpart are subject to the enforcement provisions 
specified in the Act and the rules in this chapter.
    (b) For purposes of Sec. Sec.  6.15-6.16, the term 
``manufacturers'' shall denote manufacturers of telecommunications 
equipment or customer premises equipment and the term ``providers'' 
shall denote providers of telecommunications services.

0
27. Revise Sec.  6.16 to read as follows:


Sec.  6.16  Informal or formal complaints.

    Any person may file either a formal or informal complaint against a 
manufacturer or provider alleging violations of section 255 of the Act 
or this part subject to the enforcement requirements set forth in 
Sec. Sec.  14.30 through 14.38 of this chapter.


Sec. Sec.  6.17 through 6.23   [Removed]

0
28. Remove Sec. Sec.  6.17 through 6.23.

PART 7--ACCESS TO VOICEMAIL AND INTERACTIVE MENU SERVICES AND 
EQUIPMENT BY PEOPLE WITH DISABILITIES

0
29. The authority citation for part 7 continues to read as follows:

    Authority:  47 U.S.C. 151-154, 208, 255, and 303(r).


0
30. Revise Sec.  7.15 to read as follows:


Sec.  7.15  Generally.

    (a) For purposes of Sec. Sec.  7.15 through 7.16, the term 
``manufacturers'' shall denote any manufacturer of telecommunications 
equipment or customer premises equipment which performs a voicemail or 
interactive menu function.
    (b) All manufacturers of telecommunications equipment or customer 
premises equipment and all providers of voicemail and interactive menu 
services, as defined under this subpart, are subject to the enforcement 
provisions specified in the Act and the rules in this chapter.
    (c) The term ``provider'' shall denote any provider of voicemail or 
interactive menu service.

0
31. Revise Sec.  7.16 to read as follows:


Sec.  7.16  Informal or formal complaints.

    Any person may file either a formal or informal complaint against a 
manufacturer or provider alleging violations of section 255 or this 
part subject to the enforcement requirements set forth in Sec. Sec.  
14.30 through 14.38 of this chapter.


Sec. Sec.  7.17 through 7.23   [Removed]

0
32. Remove Sec. Sec.  7.17 through 7.23.
* * * * *

PART 14--ACCESS TO ADVANCED COMMUNICATIONS SERVICES AND EQUIPMENT 
BY PEOPLE WITH DISABILITIES

0
33. The authority citation for part 14 continues to read as follows:

    Authority:  47 U.S.C. 151-154, 255, 303, 403, 503, 617, 618, 619 
unless otherwise noted.


0
34. Amend Sec.  14.38 by revising the section heading and the 
introductory text to read as follows:


Sec.  14.38  Formal complaints.

    Formal complaint proceedings alleging a violation of 47 U.S.C. 255, 
617, or 619, or parts 6, 7, or 14 of this chapter, shall be governed by 
the formal

[[Page 44843]]

complaint rules in subpart E of part 1, Sec. Sec.  1.7201.740.
* * * * *


Sec. Sec.  14.39 through 14.52   [Removed]

0
35. Remove Sec. Sec.  14.39 through 14.52.

PART 20--COMMERCIAL MOBILE SERVICES

0
36. The authority citation to part 20 continues to read as follows:

    Authority:  47 U.S.C. 151, 152(a) 154(i), 157, 160, 201, 214, 
222, 251(e), 301, 302, 303, 303(b), 303(r), 307, 307(a), 309, 
309(j)(3), 316, 316(a), 332, 610, 615, 615a, 615b, 615c, unless 
otherwise noted.


0
37. Amend Sec.  20.18 by revising paragraph (m)(4)(vii) to read as 
follows:


Sec.  20.18  911 Service.

* * * * *
    (m) * * *
    (4) * * *
    (vii) A copy of the certification must be served on the PSAP in 
accordance with Sec.  1.47 of this chapter. The PSAP may challenge in 
writing the accuracy of the carrier's certification and shall serve a 
copy of such challenge on the carrier. See Sec. Sec.  1.45 and 1.47 and 
Sec. Sec.  1.720 through 1.740 of this chapter.
* * * * *

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
38. The authority citation for part 64 continues to read as follows:

    Authority:  47 U.S.C. 154, 201, 202, 218, 222, 225, 226, 227, 
228, 251(e), 254(k), 403(b)(2)(B), (c), 616, 620, 1401-1473, unless 
otherwise noted.


0
39. Amend Sec.  64.1160 by revising paragraph (e) to read as follows:


Sec.  64.1160  Absolution procedures where the subscriber has not paid 
charges.

* * * * *
    (e) The Federal Communications Commission will not adjudicate a 
complaint filed pursuant to Sec. Sec.  1.719 or Sec. Sec.  1.720-1.740 
of this chapter, involving an alleged unauthorized change, as defined 
by Sec.  64.1100(e), while a complaint based on the same set of facts 
is pending with a state commission.
* * * * *

0
40. Amend Sec.  64.6217 by revising paragraph (c) to read as follows:


Sec.  64.6217  Complaints.

* * * * *
    (c) Formal complaints. Formal complaints against an NDBEDP 
certified program may be filed in the form and in the manner prescribed 
under Sec. Sec.  1.720 through 1.740 of this chapter. Commission staff 
may grant waivers of, or exceptions to, particular requirements under 
Sec. Sec.  1.720 through 1.740 of this chapter for good cause shown; 
provided, however, that such waiver authority may not be exercised in a 
manner that relieves, or has the effect of relieving, a complainant of 
the obligation under Sec. Sec.  1.721 and 1.722 of this chapter to 
allege facts which, if true, are sufficient to constitute a violation 
or violations of section 719 of the Communications Act or this subpart.
* * * * *

PART 68--CONNECTION OF TERMINAL EQUIPMENT TO THE TELEPHONE NETWORK

0
41. The authority citation for part 68 continues to read as follows:

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


0
42. Amend Sec.  68.105 by revising paragraph (d)(3) to read as follows:


Sec.  68.105  Minimum point of entry (MPOE) and demarcation point.

* * * * *
    (d) * * *
    (3) In any multiunit premises where the demarcation point is not 
already at the MPOE, the provider of wireline telecommunications 
services must comply with a request from the premises owner to relocate 
the demarcation point to the MPOE. The provider of wireline 
telecommunications services must negotiate terms in good faith and 
complete the negotiations within forty-five days from said request. 
Premises owners may file complaints with the Commission for resolution 
of allegations of bad faith bargaining by provider of wireline 
telecommunications services. See 47 U.S.C. 208, 47 CFR 1.720 through 
1.740.
* * * * *
[FR Doc. 2018-18689 Filed 8-31-18; 8:45 am]
 BILLING CODE 6712-01-P