Current through Register Vol. 63, No. 9, September 1, 2024
(1) This rule specifies the procedure for a
telecommunications provider, as defined in OAR 860-032-0001, to file a
complaint for the enforcement of an interconnection agreement executed pursuant
to the Telecommunications Act of 1996 (the Act). This includes interconnection
agreements, resale agreements, agreements for the purchase or lease of
unbundled network elements (UNEs), or statements of generally available terms
and conditions (SGATs), whether those agreements were entered into through
negotiation, mediation, arbitration, or adoption of a prior agreement or
portions of prior agreements. Section (13) of this rule specifies procedures
for complaints alleging that telecommunications utilities have engaged in
prohibited acts under ORS
759.455.
(2) At least 10 days prior to filing a
complaint for enforcement, complainant must give written notice to defendant
and the Commission that complainant intends to file a complaint for
enforcement. The notice must identify the provisions in the agreement that
complainant alleges were or are being violated and the specific acts or failure
to act that caused or are causing the violation, and whether complainant
anticipates requesting temporary or injunctive relief. On the same day the
notice is filed with the Commission, complainant must serve a copy of the
notice on defendant's authorized representative, attorney of record, or
designated agent for service of process. Complainant must also serve the notice
on all persons designated in the interconnection agreement to receive notices;
(3) A complaint for enforcement of
an interconnection agreement must:
(a)
Contain a statement of specific facts demonstrating that the complainant
conferred with defendant in good faith to resolve the dispute, and that despite
those efforts the parties failed to resolve the dispute;
(b) Include a copy of the written notice,
required by section (2), indicating that the complainant intends to file a
complaint for enforcement;
(c)
Include a copy of the interconnection agreement or the portion of the
interconnection agreement that the complainant contends was or is being
violated. If a copy of the entire interconnection agreement is provided,
complainant must specify provisions at issue. If the interconnection agreement
adopted a prior agreement or portions of prior agreements, the complaint must
also indicate the provisions adopted in those agreements;
(d) Contain a statement of the facts or law
demonstrating defendant's failure to comply with the agreement and
complainant's entitlement to relief. The statement must indicate that the
remedy sought is consistent with the dispute resolution provisions in the
agreement, if any. Statements of facts must be supported by written testimony
with affidavits, made by persons competent to testify and having personal
knowledge of the relevant facts. Statements of law must be supported by
appropriate citations. If exhibits are attached to the affidavits, the
affidavits must contain the foundation for the exhibits;
(e) Designate up to three persons to receive
copies of other pleadings and documents;
(f) Include any motions for affirmative
relief, filed as a separate document and clearly marked. Nothing in this
subsection precludes complainant from filing a motion subsequent to the filing
of the complaint if the motion is based upon facts or circumstances unknown or
unavailable to complainant at the time the complaint was filed; and
(g) Include an executive summary, filed as a
separate document not to exceed 8 pages, outlining the issues and relief
requested.
(4) On the
same day the complaint is filed with the Commission, complainant must serve a
copy of the complaint on defendant's authorized representative, attorney of
record, or designated agent for service of process. Service may be by
electronic mail, fax, or overnight mail, but the complaint must arrive at
defendant's location on the same day the complaint is filed with the
Commission. Service by electronic mail or fax must be followed by a physical
copy the next day by overnight delivery.
(5) Within 10 business days after service of
the complaint, defendant may file an answer with the Commission. Any
allegations raised in the complaint and not addressed in the answer are deemed
admitted. The answer must:
(a) Contain a
statement of specific facts demonstrating that the defendant conferred with
complainant in good faith to resolve the dispute, and that despite those
efforts the parties failed to resolve the dispute;
(b) Respond to each allegation set forth in
the complaint and set forth all affirmative defenses;
(c) Contain a statement of the facts or law
supporting defendant's position. Statements of facts must be supported by
written testimony or one or more affidavits, made by persons competent to
testify and having personal knowledge of the relevant facts. Statements of law
must be supported by appropriate citations. If exhibits are attached to the
affidavits, the affidavits must contain the foundation for the exhibits; and
(d) Designate up to three persons
to receive copies of other pleadings and documents;
(6) On the same day as the answer is filed,
the defendant must also file its response to any motion filed by complainant
and its motions for affirmative relief. Each response and each motion must be
filed as a separate filing. Nothing in this section precludes defendant from
filing a motion subsequent to the filing of the answer if the motion is based
upon facts or circumstances unknown or unavailable to defendant at the time the
answer was filed.
(7) On the same
day the answer is filed with the Commission, defendant must serve a copy of the
answer to the complainant's authorized representative, attorney of record, or
designated agent for service of process.
(8) Complainant must file a reply to an
answer that contains affirmative defenses within 5 business days after the
answer is filed. On the same day the reply is filed with the Commission,
complainant must serve a copy of the reply to defendant's authorized
representative, attorney of record, or designated agent for service of process.
(9) A cross-complaint or
counterclaim must be answered within the 10-business day time frame allowed for
answers to complaints.
(10) The
Commission will conduct a conference regarding each complaint for enforcement
of an interconnection agreement.
(a) The
Administrative Law Judge (ALJ) will schedule a conference within 5 business
days after the answer is filed, to be held as soon as practicable. At the
discretion of the ALJ, the conference may be conducted by telephone;
(b) Based on the complaint and the answer,
all supporting documents filed by the parties, and the parties' oral statements
at the conference, the ALJ will determine whether the issues raised in the
complaint can be determined on the pleadings and submissions without further
proceedings or whether further proceedings are necessary. If further
proceedings are necessary, the ALJ will establish a procedural schedule. The
procedural schedule may include a mandatory mediation session. Either party may
request that a person other than the ALJ preside over the mediation. Nothing in
this subsection is intended to prohibit the bifurcation of issues where
appropriate;
(c) In determining
whether further proceedings are necessary, the ALJ will consider, but is not
limited to, the positions of the parties; the need to clarify evidence through
the examination of witnesses; the complexity of the issues; the need for prompt
resolution; and the completeness of the information presented;
(d) The ALJ may make oral rulings on the
record during the conference on all matters relevant to the conduct of the
proceeding.
(11) A party
may file with the complaint or answer a request for discovery, stating the
matters to be inquired into and their relationship to matters directly at
issue.
(12) When warranted by the
facts, the complainant or defendant may file a motion requesting that an
expedited procedure be used. The moving party must file a proposed expedited
procedural schedule along with its motion. The ALJ will schedule a conference
to be held as soon as practicable, to determine whether an expedited schedule
is warranted.
(a) The ALJ will consider
whether the issues raised in the complaint or answer involve a risk of
imminent, irrevocable harm to a telecommunications provider and to the public
interest;
(b) If a determination is
made that an expedited procedure is warranted, the ALJ will establish a
procedure that ensures a prompt resolution of the merits of the dispute,
consistent with due process and other relevant considerations. The ALJ will
consider, but is not bound by, the moving party's proposed expedited procedural
schedule;
(c) An expedited
procedure may be appropriate if the complainant shows that its ability to
provide telecommunications services will be substantially harmed unless the
Commission acts promptly. In general, the Commission will not entertain a
motion for expedited procedure where the dispute solely involves the payment of
money.
(13) Procedures
for complaints alleging violation of ORS
759.455.
(a) An answer under section (5) of this rule
must be filed with the Commission and served on the complainant within 10
calendar days after service of the complaint;
(b) A reply under section (8) of this rule
must be filed with the Commission and served on the defendant within 5 calendar
days after the answer is filed;
(c) The ALJ will schedule a conference to be
held not later than 15 calendar days after the complaint is filed;
(d) A hearing will begin no later than 30
days after the complaint is filed;
(e) The ALJ may consult with the Commission
Staff in the manner set forth in OAR 860-016-0030(6).
Stat. Auth.: ORS 183 & 756
Stats. Implemented: ORS
756.040,
756.518,
759.030(1),
759.455, Ch. 1093, OL 1999 &
47 USC | 252
