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PA Bulletin, Doc. No. 00-565

STATEMENTS OF POLICY

Title 52--PUBLIC UTILITIES

PENNSYLVANIA PUBLIC UTILITY COMMISSION

Abbreviated Dispute Resolution Process

[30 Pa.B. 1764]

   The following is Appendix E to the Pennsylvania Public Utility Commission's (Commission) Global Order of September 30, 1999, Docket Nos. P-00991648 and P-00991649 as amended November 5, 1999. Appendix E sets forth a new Abbreviated Dispute Resolution Process to address the disputes of competing telecommunications carriers in an expedited fashion so as to prevent adverse impact on consumers. The process is limited to disputes involving the action or inaction of a telecommunications entity that (1) allegedly affects the ability of an entity to provide a telecommunications service or group of related services to its customer; (2) allegedly compromises the ability of a party to provide uninterrupted service; (3) allegedly is anticompetitive; (4) contains allegations of predatory pricing; or (5) involves collocation space limitation disputes. All parties to the above-referenced dockets advocated the same Abbreviated Dispute Resolution Process which is now being published for public comment. File comments at Docket Nos. P-00991648 and P-00991649 to the Pennsylvania Public Utility Commission Secretary's Bureau within 14 days of the date of publication in the Pennsylvania Bulletin. The filing address is James J. McNulty, Secretary, Pennsylvania Public Utility Commission, P. O. Box 3265, Harrisburg, PA 17105-3265. The contact person regarding this matter is Elizabeth H. Barnes, (717) 772-5408.

Appendix E

XIX.  Abbreviated Dispute Resolution Process.

   The success of local competition in Pennsylvania is dependent on the efficiency and effectiveness of carrier interconnection in providing quality service at reasonable rates to customers. Given the fact that in addition to interconnecting with each other, carriers are also competing with each other, it is possible that disputes will arise which require expedited resolution by the Commission to prevent adverse impact on consumers. Recognizing that our current mediation, arbitration and emergency relief regulations may not address the specific needs of telecommunication competitors, we are persuaded at the request of both petitions to develop an alternative Abbreviated Dispute Resolution Process (ADRP). It will be published as interim guidelines, subject to review in 1 year. The ADRP is an asset to both the parties and the Commission in that it balances the need for the parties to be heard with the necessity that certain issues be decided quickly. The process is described in full detail as follows.

   1.  The Abbreviated Dispute Resolution Process described in the following will be limited to disputes which involve action or inaction of a telecommunications entity that (1) allegedly affects the ability of an entity to provide a telecommunications service or group of related services to its customer; (2) allegedly is anticompetitive; or (3) involves collocation space limitation disputes. Before a petition is referred to the ADRP, the petitioning party (a ''Party or Parties'') must engage in good faith negotiations with the answering party with respect to the dispute in question for at least 30 calendar days.

   2.  A Party directly involved in a dispute as defined in paragraph 1 that cannot be resolved through good faith negotiations may file a Petition for Resolution of Disputed Issues (Dispute Resolution Petition) with the Commission. If possible, such petitions should be submitted jointly by both parties. The Petition shall be served upon the Office of Consumer Advocate, the Office of Small Business Advocate, the Commission's Office of Trial Staff (Public Advocates), and, if it is not a joint petition, upon the opposing party. As part of the ADRP, the petitioning party must provide detailed evidence that it has engaged in such good faith negotiations.

   3.  Any Party filing a Dispute Resolution Petition may also request an interim ruling on whether the party is entitled to relief pending the resolution of the merits of the dispute. The purpose of this procedure is to provide an interim remedy when the dispute compromises the ability of a party to provide uninterrupted service, unreasonably precludes the provisioning of scheduled service, contains allegations that a proposed tariff involves predatory pricing, or involves collocation space limitation.

   a.  Any requests for an interim ruling shall be filed at the same time and in the same document as the Dispute Resolution Petition. A Dispute Resolution Petition that includes a request for interim relief need not allege that the petitioning party has engaged in good faith negotiations for at least 30 days; provided, however, that petitions that omit allegations of 30 days of good faith negotiations pursuant to this subparagraph shall be dismissed without prejudice if the request for interim relief is denied. The petitioning party shall give 24 hours notice to its opposing party prior to filing a request for interim relief.

   b.  A Dispute Resolution Petition that includes a request for an interim ruling shall include the phrase ''Request for Interim Ruling'' in the heading and shall clearly identify and set forth the specific grounds supporting the request for interim relief pending the resolution of the dispute, including a statement of the potential harm that may result if interim relief is not provided. A Dispute Resolution Petition that includes a request for interim ruling shall be verified by affidavit and served by hand-delivery, or by facsimile with telephonic confirmation of receipt, on the same day as the pleading is filed with the Commission. The certificate of service filed with the Dispute Resolution Petition shall state how the petitioning party has complied with this service requirement.

   c.  Within 3 business days of the filing and service of a Dispute Resolution Petition that includes a request for interim ruling, the Arbitrator assigned to the dispute pursuant to the ADRP shall conduct a hearing to determine whether interim relief should be granted during the ADRP. The Arbitrator will notify the parties of the date and time of the hearing by facsimile within 24 hours of the filing of a complaint and request for interim ruling. The Parties should be prepared to present their positions and evidence on factors including, but not limited to, the type of service requested, the economic and technical feasibility of providing that service, and the potential harm that may result if interim relief is not provided. The Arbitrator will issue an interim ruling on the request based on the evidence provided at the hearing within 24 hours of the close of the hearing and will notify the parties by facsimile of the ruling. In reaching a decision on interim relief, the Arbitrator may base his or her decision on whether the party has provided ample information to allow a full evaluation of the merits of the case. The petitioning party carries the burden of proof. The interim ruling will be effective throughout the dispute resolution proceeding until a final decision is issued pursuant to the ADRP. If the request for interim ruling is denied and the Dispute Resolution Petition contains the detailed evidence of 30 days of good faith negotiations as previously described in paragraph 1, the dispute resolution proceeding shall proceed under the procedures set forth herein. If the request for interim ruling is denied and the Dispute Resolution Petition does not contain such evidence, the petition shall be dismissed without prejudice and refiled only after a 30-day negotiation period.

   4.  The Parties will be the primary participants in the ADRP. The Public Advocates may participate in the proceeding but may not conduct formal discovery and are precluded from opposing the voluntary withdrawal of a Dispute Resolution Petition due to consummation of a settlement between the Parties. Each Dispute Resolution Petition will be assigned a separate docket number by the Commission's Secretary.

   5.  All Dispute Resolution Petitions will be assigned by the Commission to principal Arbitrators with subject matter expertise, designated as having continuing jurisdiction to resolve the above referenced disputes.

   6.  The Parties shall submit a joint filing, if possible, within 5 business days of the filing of a Dispute Resolution Petition which clearly and concisely sets forth the dispute between the parties and includes as an attachment all relevant documentation material to resolution of the dispute. The filings will be served on the Public Advocates and on the opposing party if not joint.

   7.  Within 14 calendar days of the filing of a Dispute Resolution Petition, a conference will be scheduled and held among the Parties, the participating Public Advocates and the Arbitrator.

   8.  At the conference, which will not be conducted as an evidentiary hearing, the Parties shall and the participating Public Advocates may informally present their positions to the Arbitrator and, with the assistance of the Arbitrator, shall attempt to resolve their differences. The conference will be open to the public, shall be transcribed and shall be subject to the traditional proprietary safeguards.

   9.  If differences remain at the close of the conference, the Arbitrator may issue an informal decision from the bench which resolves the dispute. If the Arbitrator determines not to issue an informal bench decision, the Arbitrator will issue an informal decision resolving the dispute within 5 business days of the conference. In either case, the Arbitrator's informal decision will be filed in the document file.

   10.  There will be a 5 business day appeal period to the Commission following issuance of the Arbitrator's informal decision. If no party or Public Advocate files an appeal within that time, the informal decision will become a final Commission order as evidenced by a Secretarial letter. The informal process is ended by an informal decision which either becomes a final Commission order by operation of law or, if appealed, is followed by a formal de novo hearing before an Administrative Law Judge who renders an Initial Decision.

   11.  If a matter is settled by the Parties at any point in the informal proceedings described previously, including during the 5-day appeal period, the Parties will have the choice of filing the settlement with the Commission for approval or withdrawing the Dispute Resolution Petition. This provision shall supersede the provisions of 52 Pa. Code §§ 5.94 and 1.82.

   12.  If the Parties choose to seek Commission approval of a settlement agreement, the Parties will file a joint petition for adoption of the settlement agreement with the Commission. The Public Advocates and any certificated CLEC may file a response to the joint petition within 10 calendar days. An Administrative Law Judge will then issue an Initial Decision addressing the settlement petition within 15 calendar days of the filing of the petition.

   13.  Interested parties may file exceptions to the Initial Decision within 7 business days of issuance. Reply exceptions must be filed within 5 business days after the exceptions are filed. If no timely exceptions are filed and if two Commissioners do not ''call up'' the matter within 15 days of issuance, the Initial Decision will become a final order by operation of law. If timely exceptions are filed, the matter will be assigned to the Office of Special Assistants for preparation of a recommendation for Commission consideration at the earliest possible Public Meeting.

   14.  The filing of an appeal to an informal decision under paragraph 10 will commence de novo review of a Dispute Resolution Petition.

   15.  The filing of an appeal under paragraph 10 shall not automatically stay the Arbitrator's informal decision. Any party to the proceeding may file a motion for stay of the informal decision with the Commission's Secretary and provide a copy to the Office of Administrative Law Judge. Only if the motion is approved will the informal decision be stayed during the pendency of the appeal.

   16.  Upon the filing of an appeal under paragraph 10, interested parties other than the Parties may intervene, in the case of the Public Advocates, or seek intervention, in the case of other parties, in the proceedings.

   17.  De novo review shall consist of the conduct of an evidentiary hearing on the dispute. The presiding ALJ will conduct a hearing and issue an Initial Decision resolving the dispute within 30 calendar days of the filing of the appeal unless the ALJ extends the time frame for good cause shown recognizing an expeditious result is in the public's interest.

   18.  Participating parties may file exceptions to the Initial Decision of the ALJ within 7 business days of issuance. Reply exceptions must be filed within 5 business days after exceptions are filed.

   19.  If no exceptions are filed and if two Commissioners do not ''call up'' the matter within 15 days of issuance, the Initial Decision of the ALJ will become a final order by operation of law.

   20.  If exceptions are filed, the matter will be assigned to the Office of Special Assistants for preparation of a recommendation for Commission consideration at the earliest possible Public Meeting.

   21.  With the exception of 52 Pa. Code §§ 5.94 and 1.82, this dispute resolution process is not intended to replace or preclude any other remedies or procedures otherwise available to any of the parties, and a party's participation in this dispute resolution process shall not be considered a waiver of any available substantive or procedural rights.

   22.  This ADR process shall be posted as Interim Guidelines in the Pennsylvania Bulletin and shall be subject to review after a period of 1 year from the date of entry of this Order.

JAMES J. MCNULTY,   
Secretary

[Pa.B. Doc. No. 00-565. Filed for public inspection March 31, 2000, 9:00 a.m.]


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