(1)
Grant of Hearing. Public hearing will be granted
whenever required by statute, and otherwise as the Department may determine in
specific cases.
(2)
Calendar. The Secretary of the Department shall
maintain a docket and a hearing calendar of all proceedings set for hearing. So
far as practicable, hearings shall be heard in the order in which they have
been listed on the Department's docket.
(3)
Place. All
hearings shall be held at the offices of the Department, unless by statute or
determination of the Department a different place is designated.
(4)
Hearing List.
When more than one hearing is scheduled for the same time and place,
uncontested matters shall be heard before contested matters.
(5)
Notice.
(a)
Persons
Notified. Except where the Department has issued an order of
notice pursuant to 207 CMR 1.06(5)(d), the Department shall give written notice
of a scheduled hearing in any pending matter to all parties, to persons
required by statute to be notified, to others who have made written request for
notice of hearing in a particular matter and to such other persons as deemed
necessary or appropriate by the Department. In addition, the Department may
give notice by newspaper publication or by such other means as it may deem
advisable. In any proceeding pursuant to M.G.L. c. 159, §§ 19 and 20,
except for carriers certified pursuant to M.G.L. c. 159, § 12B, and others
upon a showing of good cause, the Company shall give notice by publication
pursuant to 207 CMR 12.06: Notice of General Rate Increases to
Customers.
(b)
Contents of Notice. Such notice shall include, but
need not be limited to, the time, date, place, and nature of the hearing.
Notice of hearings relating to the issuance or amendment of certificates,
permits, or licenses shall include the name of the municipality in which the
applicant maintains his or her principal place of business, a brief description
of the type of commodity involved (if applicable) and of the area of authority
sought and the name and address of applicant's attorney, if his or her
appearance has been filed.
(c)
Length of Notice. Unless otherwise provided by
statute, or unless the Department finds that a shorter period of notice is
reasonable and consistent with the public interest, notice of a hearing shall
be given at least 14 days prior thereto.
(d)
Order of Notice.
The Department may require any person filing an initial pleading to give notice
of the hearing on such pleading by publication or other means or both, in which
case such person shall receive an order of notice from the Department which
shall be returned, with proof of compliance with said order, not later than the
commencement of hearing on the petition.
(e)
Continuances.
For good cause shown, the Department or the Presiding Officer may grant a
continuance. All requests for continuances shall be made by a motion in
accordance with 207 CMR 1.04(5).
(f)
Address. Unless
notice to the contrary has been received by the Department, notices of hearing
shall be sufficient if mailed or delivered to the following:
1. If the addressee is a holder of a
certificate, permit, or license, the address shown on the last application for
the issuance or amendment thereof.
2. If the addressee has a tariff on file, to
the address shown on any tariff in effect at the time of notice.
(g)
Notice of Public
Hearings on Cable Licensing and Transfers. The foregoing notice
requirements notwithstanding, any public hearing held pursuant to
207 CMR
3.00: Cable Licensing or
207 CMR 4.00: Transfer
or Assignment of Control of a Final Cable License shall require prior
public notice identifying the time, place, and purpose of the hearing. The
notice shall be published in a newspaper of general circulation in the affected
city or town once in each of two successive weeks, the first publication being
not less than 14 days before the day of any such hearing. If there is no
newspaper in the city or town, the notice shall be posted in a conspicuous
place in the city or town hall not less than fourteen days before the day of
such hearing. The notice shall also state that any applications, reports,
statements, and amendments to be considered at the hearing that constitute
public records under state law are available for public inspection during
regular business hours and for reproduction at a reasonable fee. Evidence of
such notice shall be incorporated in the record of any hearing. The issuing
authority shall provide prior public notice for all public hearings held
pursuant to
207 CMR
3.00 and
207 CMR 4.00.
(6)
Conduct of
Hearings.
(a)
Presiding Officer. The hearing shall be conducted by a
Presiding Officer who shall be the Commissioner or an employee designated by
the Commissioner. The Presiding Officer shall administer oaths and
affirmations, issue subpoenas, and make all decisions regarding the admission
or exclusion of evidence or any other procedural matters which may arise in the
course of the hearing.
(b)
Procedural Conference.
1. The Presiding Officer may direct the
parties to attend a preliminary conference to discuss procedural matters
relating to the proceeding at any time before the commencement of the
evidentiary hearing. The preliminary conference may be a public hearing on the
record if requested by a party or ordered by the Presiding Officer.
To the extent that it is deemed necessary and practicable, the
Presiding Officer shall establish a detailed schedule for the proceeding,
including, but not limited to, the dates for the filing of information requests
and responses, objections to discovery questions and responses to those
objections, evidentiary hearings, and filing testimony, stipulations,
settlement proposals, and briefs. The Presiding Officer shall also address any
other procedural matters that will aid in the orderly disposition of the
case.
2. The Presiding
Officer shall, through written memorandum to the parties or announcement on the
record, announce any action taken at the procedural conference. Any schedule
established by the Presiding Officer shall be binding on the parties unless
later modified by the Presiding Officer after notice to all parties.
(c)
Discovery.
1.
Purpose. The purpose for discovery is to facilitate
the hearing process by permitting the parties and the Department to gain access
to all relevant information in an efficient and timely manner. Discovery is
intended to reduce hearing time, narrow the scope of issues, protect the rights
of the parties, and ensure that a complete and accurate record is
compiled.
2.
Rules
Governing Discovery. Because the Department's investigations
involve matters with a wide range of issues, levels of complexity, and
statutory deadlines, the Presiding Officer shall establish discovery procedures
in each case which take into account the legitimate rights of the parties in
the context of the case at issue. In establishing discovery procedures, the
Presiding Officer must exercise his or her discretion to balance the interests
of the parties and ensure that the information necessary to complete the record
is produced without unproductive delays. In exercising this discretion, the
Presiding Officer shall be guided by the principles and procedures underlying
Rules 26 through 37 of the Massachusetts Rules of Civil Procedure. These Rules,
however, shall be instructive, rather than controlling.
3.
Discovery
Schedules. Discovery requests may be made at any time after the
commencement of an investigation, and parties are encouraged to comply
voluntarily with any such requests for information before the formal hearing
process begins. Where appropriate, the Presiding Officer shall establish a
formal schedule, either at the procedural conference or at some time before the
commencement of evidentiary hearings. The schedule may be expedited for good
cause shown.
4.
Motions
to Compel Discovery. A party may move for an Order to compel
compliance with its discovery request. Unless otherwise permitted by the
Presiding Officer for good cause shown, such motion shall be made no later than
seven days after the passing of the deadline for responding to the request. If
the Presiding Officer finds that a party has failed to comply in a reasonable
manner with a legitimate discovery request without good cause, he or she may,
after issuance of an Order compelling discovery, order whatever sanctions are
deemed to be appropriate, including, but not limited to, those listed in Rule
37 of the Massachusetts Rules of Civil Procedure. A party's failure to file a
motion to compel discovery in a timely manner, absent a showing of good cause,
may result in a waiver of its right to compel the response.
5.
Amending
Responses. A party is under a continuing duty to amend seasonably
an early response if it obtains information that the response was incorrect or
incomplete when made, or that the response, though correct when made, is no
longer true or complete.
6.
Depositions.
a.
Depositions may be taken if agreed to by all parties or by Order of the
Presiding Officer in the event of a dispute following a motion by the
requesting party. The Presiding Officer may, in his or her discretion, impose
reasonable conditions on the deposition process, including, but not limited to,
placing restrictions on the scope of the depositions or on the use of the
depositions in the proceeding. All depositions shall be transcribed at the
expense of the deposing party or parties.
b. All motions for deposition should include
the name and title of the person to be deposed, the issues which will be the
subject of the deposition, and a statement of the manner in which the
deposition will expedite the hearing process. The party to be deposed and
parties in the proceeding shall be served with the motion for deposition and
may file objections to or comments on the motion within seven days after
service. The Presiding Officer shall grant a motion for deposition if it is
determined that the taking of a deposition will be more efficient than other
available discovery methods, and will not unduly burden the affected
parties.
7.
Entry upon Land for Inspection and Other Purposes.
a.
Scope. Any party
may serve on any entity subject to the Department's jurisdiction a request to
permit entry upon or within designated land, buildings, or other property in
the possession or control of such entity (or upon land and property wherever
situated, belonging to some other entity in which any entity subject to the
Department's jurisdiction owns an interest) upon whom the request is served for
the purpose of inspection, observation, measurement, surveying, photographing,
testing or sampling the property or any designated room, object, machine,
storage facility, practice, or operation therein or thereon.
b.
Procedure. The
request may be served without leave of the Presiding Officer but shall be filed
with the Department. The request shall describe the property to be inspected
and shall specify a reasonable time at which to make the inspection and perform
the related acts. Such request shall be served no later than ten days before
the date of the proposed inspection. If the entity served objects to such
inspection it shall file a written objection with the Presiding Officer stating
therein its basis for objecting, within five days of the service of the
request. Upon notice of such objection, the Presiding Officer shall at his or
her first opportunity convene a hearing and shall order such inspection to
proceed absent a showing of good cause by the entity.
(d)
Rulings.
1.
Presiding Officer. The Presiding Officer shall make
all rulings during the course of the hearings when requested to do so by a
party. The Presiding Officer may require, at his or her discretion, written
memoranda on any issue or permit oral argument. The Presiding Officer may rule
at the time of the request or take any matter under advisement. The Presiding
Officer shall make all rulings promptly after submission, generally no later
than the next hearing date.
2.
Effect of Rulings and Decision by Presiding Officer.
Rulings and decisions of the Presiding Officer shall remain in full force and
effect unless and until set aside or modified by the Commissioner. Any ruling
or other decision of the Presiding Officer who is not the Commissioner may be
appealed to the Commissioner.
3.
Appeals to the Commissioner. If a party wishes to
appeal a ruling or decision of an employee designated as the Presiding Officer,
the party should immediately notify the Presiding Officer, on the record if
possible. The Presiding Officer shall prescribe a reasonable time period for
the submittal of the appeal and any response to be filed by other parties. The
appeal must be filed in writing with supporting documentation, and served on
all parties to the proceeding.
4.
Offers of Proof. Any offer of proof made in connection
with an objection taken to a ruling of the Presiding Officer rejecting or
excluding proffered oral testimony shall consist of a statement of the
substance of the evidence which the party contends would be adduced by such
testimony; and if the excluded evidence is in documentary or written form, or
refers to documents or records, a copy of such evidence shall be marked for
identification and shall constitute an offer of proof.
(e)
Motions to Dismiss and for
Summary Judgment. A party may move at any time after the
submission of an initial filing for dismissal or summary judgment as to all
issues or any issue in the case. The motion shall be filed in writing and
served on all parties. A motion for summary judgment shall set forth in detail
such supporting facts as would be admissible in evidence. The Presiding Officer
shall afford other parties a reasonable time to respond in writing, and may, in
his or her discretion, permit oral argument on the motion.
(f)
Order of
Presentation. In any hearing held upon the Department's own motion
or upon petition, the person being investigated or the petitioner, as the case
may be, shall open and close. In hearings on complaints, the complainant shall
open and close. Where there is more than one person being investigated or more
than one petitioner or complainant or where a hearing is being held on the
Department's own motion and on complaint or petition, the order of presentation
shall be in the discretion of the Presiding Officer. After all the evidence and
testimony of the person opening has been received, the evidence and testimony
of all other parties or others who have been allowed to participate in the
hearing shall be received in the order determined by the Presiding Officer. All
witnesses shall be subject to cross-examination by the Commissioner, the
Presiding Officer, counsel for the Department, counsel for other parties, and
counsel for any other person as permitted by the Presiding Officer. A
reasonable amount of time for the preparation of cross-examination may be
afforded.
(g)
Conduct
of Persons Present. All parties, counsel, witnesses, and other
persons present at a hearing shall conduct themselves in a manner consistent
with the standards of decorum commonly observed in the courts of this
Commonwealth. Where such decorum is not observed, the Presiding Officer may
take such action as he or she deems appropriate.
(h)
Additional
Evidence. At any stage of the hearing the Presiding Officer may
call for further evidence upon any issue, and require such evidence to be
presented by the party or parties concerned or by the staff counsel, either at
that hearing or adjournments thereof. At the hearing, the Presiding Officer may
authorize any party to file specific documentary evidence as a part of the
record within a specified time.
(7)
Transcripts.
(a) At the request of any party, made in
writing at least seven days before the hearing date, or of its own accord, the
Department shall provide that all proceedings in a pending case be officially
recorded by a reporter appointed for that purpose. The Department shall require
any party requesting a copy of the transcript to pay the reasonable cost of
preparing said copy before the Department makes said copy available to the
party.
(b) Corrections in the
official transcript may be made only to make in conform to the evidence
presented at the hearing. Transcript corrections agreed to by opposing
attorneys may be incorporated into the record, if and when approved by the
Presiding Officer, at any time during the hearing, or after the close of
evidence, but not more than ten days from the date of receipt of the
transcript. The Presiding Officer may call for the submission of proposed
corrections and may make dispositions thereof at appropriate times during the
course of the proceedings.