[Federal Register Volume 79, Number 239 (Friday, December 12, 2014)]
[Rules and Regulations]
[Pages 73844-73848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-28736]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[GC Docket No. 10-44; FCC 14-179]
The Commission's Rules of Practice and Procedure Relating to the
Filing of Formal Complaints and Pole Attachment Complaints
AGENCY: Federal Communications Commission.
ACTION: Final rules.
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SUMMARY: This document amends procedural rules implemented by the
Commission's 2011 determination that docketing and electronic filing be
utilized in proceedings involving ``[n]ewly filed formal common carrier
complaints and newly filed pole attachment complaints before the
Enforcement Bureau.'' The rule changes also apply to future filings
made in existing Section 208 formal complaints and pole attachment
complaints. In addition, the amendments make a few procedural changes
to existing Section 208 formal complaint and pole attachment complaint
filing rules to create uniformity among them and ease of administration
for parties and staff when initiating service of pleadings or filing
confidential matters with the Commission. The rules further establish a
single electronic inbox within Electronic Comment Filing System (ECFS)
to handle the initial filing of the above-identified new complaints.
Accepted complaints will receive a distinct ECFS docket number;
rejected complaints will remain on ECFS but will be stored within the
Inbox.
DATES: Effective January 12, 2015.
FOR FURTHER INFORMATION CONTACT: Tracy Bridgham, Enforcement Bureau,
Federal Communications Commission, [email protected], (202) 418-
0967.
SUPPLEMENTARY INFORMATION: This document, adopted on November 5, 2014
and released on November 12, 2014, GC Docket No. 10-44, FCC 14-179,
revises several sections of 47 CFR part 1. The rule changes will
facilitate and enhance public participation in Commission section 208
formal complaint and section 224 pole attachment complaint proceedings,
thereby making the Commission's decision-making process more efficient,
modern, and transparent.
Regulatory Flexibility Act. The actions taken in this Order do not
require notice and comment, and therefore fall outside the Regulatory
Flexibility Act of 1980, 5 U.S.C. 601(2); 603(a), as amended. We
nonetheless anticipate that the rules we adopt today will not have a
significant economic impact on a substantial number of small entities.
As described above, the rules relate to our internal procedures and do
not impose new substantive responsibilities on regulated entities.
There is no reason to believe that operation of the revised rules will
impose significant costs on parties to Commission proceedings. To the
contrary, we take today's actions with the expectation that, overall,
they will make dealings with the Commission quicker, easier, and less
costly for entities of all sizes.
Paperwork Reduction Act. Although the rule sections affected by
this proceeding have information collections associated with them, the
Office of Management and Budget has
[[Page 73845]]
determined that, under the Paperwork Reduction Act of 1995, Public Law
104-13, 109 Stat. 163 (1995) (codified at 44 U.S.C. 3501 et seq.),
these changes are not substantive in nature and will not result in any
new or modified information collections.
Accordingly, it is ordered, pursuant to sections 4(i), 4(j), 208,
and 224 of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), 154(j), 208, 224, that the rules set forth are adopted,
effective 30 days after the date of publication in the Federal
Register.
It is further ordered, pursuant to sections 4(i), 4(j), 208, and
224 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i),
154(j), 208, 224, and Sec. 1.3 of the Commission's rules, 47 CFR 1.3,
that, effective upon release of this Order, Sec. Sec. 1.720, 1.721,
1.727, 1.731, 1.732, 1.733, 1.734, 1.735, 1.1403, 1.1404, and 1.1408 of
the Commission's rules, 47 CFR 1.720, 1.721, 1.727, 1.731, 1.732,
1.733, 1.734, 1.735, 1.1403, 1.1404, 1.1408, are waived to the extent
necessary to permit online electronic filing in accordance with the
processes discussed in this Order. This waiver shall be effective ten
days after release of this Order and until the effective date of the
rule changes ordered in the previous paragraph.
List of Subjects in 47 CFR Part 1
Administrative practice and procedure; Telecommunications.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final rules
For the reasons discussed in this preamble, the Federal
Communications Commission amends 47 CFR part 1 as follows:
PART 1--PRACTICE AND PROCEDURE
0
1. The authority citation for 47 CFR part 1 continues to read as
follows:
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j),
155, 157, 225, 227, 303(r), 309, 1403, 1404, 1451, and 1452.
0
2. Section 1.720 is amended by revising paragraph (j) to read as
follows:
Sec. 1.720 General pleading requirements.
* * * * *
(j) Pleadings shall identify the name, address, telephone number,
and email address for either the filing party's attorney or, where a
party is not represented by an attorney, the filing party.
0
3. Section 1.721 is amended by revising paragraphs (a)(3) and (5) to
read as follows:
Sec. 1.721 Format and content of complaints.
(a) * * *
(3) The name, address, telephone number, and email address of
complainant's attorney, if represented by counsel;
* * * * *
(5) Assertions based on information and belief are expressly
prohibited unless made in good faith and accompanied by an affidavit
explaining the basis for the complainant's belief and why the
complainant could not reasonably ascertain the facts from the defendant
or any other source;
* * * * *
0
4. Section 1.727 is revised to read as follows:
Sec. 1.727 Motions.
(a) A request to the Commission for an order shall be by written
motion, stating with particularity the grounds and authority therefor,
and setting forth the relief or order sought.
(b) All dispositive motions shall contain proposed findings of fact
and conclusions of law, with supporting legal analysis, relevant to the
contents of the pleading. Motions to compel discovery must contain a
certification by the moving party that a good faith attempt to resolve
the dispute was made prior to filing the motion. All facts relied upon
in motions must be supported by documentation or affidavits pursuant to
the requirements of Sec. 1.720(c), except for those facts of which
official notice may be taken.
(c) Oppositions to motions may be filed and served within five
business days after the motion is filed and served and not after.
Oppositions shall be limited to the specific issues and allegations
contained in such motion; when a motion is incorporated in an answer to
a complaint, the opposition to such motion shall not address any issues
presented in the answer that are not also specifically raised in the
motion. Failure to oppose any motion may constitute grounds for
granting of the motion.
(d) No reply may be filed to an opposition to a motion.
(e) Motions seeking an order that the allegations in the complaint
be made more definite and certain are prohibited.
(f) Amendments or supplements to complaints to add new claims or
requests for relief are prohibited. Parties are responsible, however,
for the continuing accuracy and completeness of all information and
supporting authority furnished in a pending complaint proceeding as
required under Sec. 1.720(g).
0
5. Section 1.731 is revised to read as follows:
Sec. 1.731 Confidentiality of information produced or exchanged.
(a) Any materials generated in the course of a formal complaint
proceeding may be designated as proprietary by either party to the
proceeding or a third party if the party believes in good faith that
the materials fall within an exemption to disclosure contained in the
Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(1) through (9). Any
party asserting confidentiality for such materials must:
(1) Clearly mark each page, or portion thereof, for which a
proprietary designation is claimed. If a proprietary designation is
challenged, the party claiming confidentiality shall have the burden of
demonstrating, by a preponderance of the evidence, that the materials
designated as proprietary fall under the standards for nondisclosure
enunciated in the FOIA.
(2) File with the Commission, using the Commission's Electronic
Comment Filing System, a public version of the materials that redacts
any proprietary information and clearly marks each page of the redacted
public version with a header stating ``Public Version.'' The redacted
document shall be machine-readable whenever technically possible. Where
the document to be filed electronically contains metadata that is
confidential or protected from disclosure by a legal privilege
(including, for example, the attorney-client privilege), the filer may
remove such metadata from the document before filing it electronically.
(3) File with the Secretary's Office an unredacted hard copy
version of the materials that contains the proprietary information and
clearly marks each page of the unredacted confidential version with a
header stating ``Confidential Version.'' The unredacted version must be
filed on the same day as the redacted version.
(4) Serve one hard copy of the filed unredacted materials and one
hard copy of the filed redacted materials on the attorney of record for
each party to the proceeding, or, where a party is not represented by
an attorney, each party to the proceeding either by hand delivery,
overnight delivery, or email, together with a proof of such service in
accordance with the requirements of Sec. Sec. 1.47(g) and 1.735(f)(1)
through (3);
(b) Except as provided in paragraph (c) of this section, materials
marked as proprietary may be disclosed solely to the following persons,
only for use in prosecuting or defending a party to the complaint
action, and only to the extent
[[Page 73846]]
necessary to assist in the prosecution or defense of the case:
(1) Counsel of record representing the parties in the complaint
action and any support personnel employed by such attorneys;
(2) Officers or employees of the opposing party who are named by
the opposing party as being directly involved in the prosecution or
defense of the case;
(3) Consultants or expert witnesses retained by the parties;
(4) The Commission and its staff; and
(5) Court reporters and stenographers in accordance with the terms
and conditions of this section.
(c) The Commission will entertain, subject to a proper showing
under Sec. 0.459 of this chapter, a party's request to further
restrict individuals' access to proprietary information. Pursuant to
Sec. 0.459 of this chapter, the other parties will have an opportunity
to respond to such requests. Requests and responses to requests may not
be submitted by means of the Commission's Electronic Comment Filing
System but instead must be filed under seal with the Office of the
Secretary.
(d) The individuals identified above in paragraph (b)(1) through
(3) shall not disclose information designated as proprietary to any
person who is not authorized under this section to receive such
information, and shall not use the information in any activity or
function other than the prosecution or defense in the case before the
Commission. Each individual who is provided access to the information
shall sign a notarized statement affirmatively stating that the
individual has personally reviewed the Commission's rules and
understands the limitations they impose on the signing party.
(e) No copies of materials marked proprietary may be made except
copies to be used by persons designated in paragraphs (b)(1) through
(3) and (c) of this section. Each party shall maintain a log recording
the number of copies made of all proprietary material and the persons
to whom the copies have been provided.
(f) Upon termination of the formal complaint proceeding, including
all appeals and petitions, all originals and reproductions of any
proprietary materials, along with the log recording persons who
received copies of such materials, shall be provided to the producing
party. In addition, upon final termination of the proceeding, any notes
or other work product derived in whole or in part from the proprietary
materials of an opposing or third party shall be destroyed.
0
6. Section 1.732 is amended by removing paragraph (e) and redesignating
paragraphs (f) through (h) as (e) through (g) and revising them to read
as follows:
Sec. 1.732 Other Required Written Submissions.
* * * * *
(e) Initial briefs shall be no longer than twenty-five pages. Reply
briefs shall be no longer than ten pages. Either on its own motion or
upon proper motion by a party, the Commission staff may establish other
page limits for briefs.
(f) The Commission may require the parties to submit any additional
information it deems appropriate for a full, fair, and expeditious
resolution of the proceeding, including affidavits and exhibits.
(g) The parties shall submit a joint statement of stipulated facts,
disputed facts, and key legal issues no later than two business days
prior to the initial status conference, scheduled in accordance with
the provisions of Sec. 1.733(a).
0
7. Section 1.733 is amended by revising paragraphs (f)(1) and (2) to
read as follows:
Sec. 1.733 Status conference.
* * * * *
(f) * * *
(1) Submit a joint proposed order memorializing the oral rulings
made during the conference to the Commission by midnight, Eastern Time,
on the business day following the date of the status conference, or as
otherwise directed by Commission staff. In the event the parties in
attendance cannot reach agreement as to the rulings that were made, the
joint proposed order shall include the rulings on which the parties
agree, and each party's alternative proposed rulings for those rulings
on which they cannot agree. Commission staff will review and make
revisions, if necessary, prior to signing and filing the submission as
part of the record. The proposed order shall be filed using the
Commission's Electronic Comment Filing System; or
(2) Pursuant to the requirements of paragraph (e) of this section,
submit to the Commission by midnight, Eastern Time, on the third
business day following the status conference or as otherwise directed
by Commission staff either:
* * * * *
0
8. Section 1.734 is amended by removing paragraph (d) and revising
paragraph (c) to read as follows:
Sec. 1.734 Specifications as to pleadings, briefs, and other
documents; subscription.
* * * * *
(c) The original of all pleadings and other submissions filed by
any party shall be signed by the party, or by the party's attorney. The
signing party shall include in the document his or her address,
telephone number, email address, and the date on which the document was
signed. Copies should be conformed to the original. Unless specifically
required by rule or statute, pleadings need not be verified. The
signature of an attorney or party, in accordance with the requirements
of Sec. 1.52, shall be a certificate that the attorney or party has
read the pleading, motion, or other paper; that to the best of his or
her knowledge, information, and belief formed after reasonable inquiry,
it is well grounded in fact and is warranted by existing law or a good
faith argument for the extension, modification, or reversal of existing
law; and that it is not interposed solely for purposes of delay or for
any other improper purpose.
0
9. Section 1.735 is revised to read as follows:
Sec. 1.735 Fee remittance; electronic filing; copies; service;
separate filings against multiple defendants.
(a) Complaints may generally be brought against only one named
carrier; such actions may not be brought against multiple defendants
unless the defendant carriers are commonly owned or controlled, are
alleged to have acted in concert, are alleged to be jointly liable to
complainant, or the complaint concerns common questions of law or fact.
Complaints may, however, be consolidated by the Commission for
disposition.
(b) The complainant shall remit separately the correct fee either
by check, wire transfer, or electronically, in accordance with part 1,
subpart G (see Sec. 1.1106 of this chapter) and, shall file an
original copy of the complaint, using the Commission's Electronic
Comment Filing System, and, on the same day:
(1) If the complaint is filed against a carrier concerning matters
within the responsibility of the International Bureau (see Sec. 0.261
of this chapter), serve, by email, a copy on the Chief, Policy
Division, International Bureau; and
(2) If a complaint is addressed against multiple defendants, pay a
separate fee, in accordance with part 1, subpart G (see Sec. 1.1106),
for each additional defendant.
(c) The complainant shall serve the complaint by hand delivery on
either the named defendant or one of the
[[Page 73847]]
named defendant's registered agents for service of process on the same
date that the complaint is filed with the Commission in accordance with
the requirements of paragraph (b) of this section.
(d) Upon receipt of the complaint by the Commission, the Commission
shall promptly send, by email, to each defendant named in the
complaint, notice of the filing of the complaint. The Commission shall
send, by email, to each defendant named in the complaint, a copy of the
complaint. The Commission shall additionally send, by email, to all
parties, a schedule detailing the date the answer and any other
applicable pleading will be due and the date, time, and location of the
initial status conference.
(e) Parties shall provide hard copies of all submissions to staff
in the Market Disputes Resolution Division of the Enforcement Bureau
upon request.
(f) All subsequent pleadings and briefs filed in any formal
complaint proceeding, as well as all letters, documents, or other
written submissions, shall be filed using the Commission's Electronic
Comment Filing System. In addition, all pleadings and briefs filed in
any formal complaint proceeding, as well as all letters, documents, or
other written submissions, shall be served by the filing party on the
attorney of record for each party to the proceeding, or, where a party
is not represented by an attorney, each party to the proceeding either
by hand delivery, overnight delivery, or email, together with a proof
of such service in accordance with the requirements of Sec. 1.47(g).
Service is deemed effective as follows:
(1) Service by hand delivery that is delivered to the office of the
recipient by 5:30 p.m., local time of the recipient, on a business day
will be deemed served that day. Service by hand delivery that is
delivered to the office of the recipient after 5:30 p.m., local time of
the recipient, on a business day will be deemed served on the following
business day;
(2) Service by overnight delivery will be deemed served the
business day following the day it is accepted for overnight delivery by
a reputable overnight delivery service; or
(3) Service by email that is fully transmitted to the office of the
recipient by 5:30 p.m., local time of the recipient, on a business day
will be deemed served that day. Service by email that is fully
transmitted to the office of the recipient after 5:30 p.m., local time
of the recipient, on a business day will be deemed served on the
following business day.
(g) Supplemental complaint proceedings. Supplemental complaints
filed pursuant to Sec. 1.722 shall conform to the requirements set
forth in this section, except that the complainant need not submit a
filing fee, and the complainant may effect service pursuant to
subsection (e) and (f) of this section rather than paragraph (c) of
this section.
0
10. Section 1.1403 is amended by revising paragraph (d) to read as
follows:
Sec. 1.1403 Duty to provide access; modifications; notice of removal,
increase or modification; petition for temporary stay; and cable
operator notice.
* * * * *
(d) A cable television system operator or telecommunications
carrier may file a ``Petition for Temporary Stay'' of the action
contained in a notice received pursuant to paragraph (c) of this
section within 15 days of receipt of such notice. Such submission shall
not be considered unless it includes, in concise terms, the relief
sought, the reasons for such relief, including a showing of irreparable
harm and likely cessation of cable television service or
telecommunication service, a copy of the notice, and certification of
service as required by Sec. 1.1404(b). The named respondent may file
an answer within 7 days of the date the Petition for Temporary Stay was
filed. No further filings under this section will be considered unless
requested or authorized by the Commission and no extensions of time
will be granted unless justified pursuant to Sec. 1.46.
* * * * *
0
11. Section 1.1404 is amended by revising paragraph (a) to read as
follows:
Sec. 1.1404 Complaint.
(a) The complaint shall contain the name, address, telephone
number, and email address of the complainant; name, address, telephone
number, and email address of the respondent; and a verification (in
accordance with the requirements of Sec. 1.52), signed by the
complainant or officer thereof if complainant is a corporation, showing
complainant's direct interest in the matter complained of. Counsel for
the complainant may sign the complaint. Complainants may join together
to file a joint complaint. Complaints filed by associations shall
specifically identify each utility, cable television system operator,
or telecommunications carrier who is a party to the complaint and shall
be accompanied by a document from each identified member certifying
that the complaint is being filed on its behalf.
* * * * *
0
12. Section 1.1408 is revised to read as follows:
Sec. 1.1408 Fee remittance; electronic filing; service; number of
copies; form of pleadings; and proprietary materials.
(a) The complainant shall remit separately the correct fee either
by check, wire transfer, or electronically, in accordance with part 1,
subpart G (see Sec. 1.1106) and, shall file an original copy of the
complaint, using the Commission's Electronic Comment Filing System. The
original of the response and reply, as well as all other written
submissions, shall be filed with the Commission using the Commission's
Electronic Comment Filing System. Service must be made in accordance
with the requirements of Sec. 1.735(b), (c), (e), and (f).
(b) All papers filed in the complaint proceeding must be drawn in
conformity with the requirements of Sec. Sec. 1.49, 1.50, and 1.52.
(c) Any materials generated in the course of a pole attachment
complaint proceeding may be designated as proprietary by either party
to the proceeding or a third party if the party believes in good faith
that the materials fall within an exemption to disclosure contained in
the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(1) through (9).
Any party asserting confidentiality for such materials must:
(1) Clearly mark each page, or portion thereof, for which a
proprietary designation is claimed. If a proprietary designation is
challenged, the party claiming confidentiality shall have the burden of
demonstrating, by a preponderance of the evidence, that the materials
designated as proprietary fall under the standards for nondisclosure
enunciated in the FOIA.
(2) File with the Commission, using the Commission's Electronic
Comment Filing System, a public version of the materials that redacts
any proprietary information and clearly marks each page of the redacted
public version with a header stating ``Public Version.'' The redacted
document shall be machine-readable whenever technically possible. Where
the document to be filed electronically contains metadata that is
confidential or protected from disclosure by a legal privilege
(including, for example, the attorney-client privilege), the filer may
remove such metadata from the document before filing it electronically.
(3) File with the Secretary's Office an unredacted hard copy
version of the materials that contains the proprietary information and
clearly marks each page of the unredacted confidential version
[[Page 73848]]
with a header stating ``Confidential Version.'' The unredacted version
must be filed on the same day as the redacted version.
(4) Serve one hard copy of the filed unredacted materials and one
hard copy of the filed redacted materials on the attorney of record for
each party to the proceeding, or, where a party is not represented by
an attorney, each party to the proceeding either by hand delivery,
overnight delivery, or email, together with a proof of such service in
accordance with the requirements of Sec. Sec. 1.47(g) and 1.735(f)(1)
through (3) of this chapter;
(d) Except as provided in paragraph (e) of this section, materials
marked as proprietary may be disclosed solely to the following persons,
only for use in prosecuting or defending a party to the complaint
action, and only to the extent necessary to assist in the prosecution
or defense of the case:
(1) Counsel of record representing the parties in the complaint
action and any support personnel employed by such attorneys;
(2) Officers or employees of the opposing party who are named by
the opposing party as being directly involved in the prosecution or
defense of the case;
(3) Consultants or expert witnesses retained by the parties;
(4) The Commission and its staff; and
(5) Court reporters and stenographers in accordance with the terms
and conditions of this section.
(e) The Commission will entertain, subject to a proper showing
under Sec. 0.459 of this chapter, a party's request to further
restrict access to proprietary information. Pursuant to Sec. 0.459 of
this chapter, the other parties will have an opportunity to respond to
such requests. Requests and responses to requests may not be submitted
by means of the Commission's Electronic Comment Filing System but
instead must be filed under seal with the Office of the Secretary.
(f) The individuals identified in paragraphs (d)(1) through (3) of
this section shall not disclose information designated as proprietary
to any person who is not authorized under this section to receive such
information, and shall not use the information in any activity or
function other than the prosecution or defense in the case before the
Commission. Each individual who is provided access to the information
shall sign a notarized statement affirmatively stating that the
individual has personally reviewed the Commission's rules and
understands the limitations they impose on the signing party.
(g) No copies of materials marked proprietary may be made except
copies to be used by persons designated in paragraphs (d) and (e) of
this section. Each party shall maintain a log recording the number of
copies made of all proprietary material and the persons to whom the
copies have been provided.
(h) Upon termination of the pole attachment complaint proceeding,
including all appeals and petitions, all originals and reproductions of
any proprietary materials, along with the log recording persons who
received copies of such materials, shall be provided to the producing
party. In addition, upon final termination of the proceeding, any notes
or other work product derived in whole or in part from the proprietary
materials of an opposing or third party shall be destroyed.
[FR Doc. 2014-28736 Filed 12-11-14; 8:45 am]
BILLING CODE 6712-01-P