NOTICES
Tentative Order Requesting Comments on Revising the Abbreviated Dispute Resolution Process
[32 Pa.B. 5822] Public Meeting held
November 7, 2002Commissioners Present: Glen R. Thomas, Chairperson; Robert K. Bloom, Vice Chairperson; Aaron Wilson, Jr.; Terrance J. Fitzpatrick; Kim Pizzingrilli
Interim Guidelines for Abbreviated Dispute Resolution Process; Doc. No. M-00021685 By the Commission:
In our Global Order proceeding at Docket Nos. P-00991648 and P-00991649, both sets of petitioners proposed, inter alia, the establishment of an abbreviated dispute resolution process (ADRP) mechanism that would address, in an expedited fashion, those disputes arising between interconnecting carriers that would have an adverse impact on customers. The Commission agreed that an effective ADRP mechanism would be of substantial benefit to all carriers as it would provide for the prompt resolution of carrier disputes and would help to facilitate the Commission's mission to create a pro-competitive market for the provision of local telephone services in this Commonwealth.
Therefore, in Appendix E to the Global Order1 entered September 30, 1999, at Docket Nos. P-00991648 and P-00991649, an ADRP was established in order to address certain disputes between competing telecommunications carriers that threatened to impede the development of local telephone competition in this Commonwealth.
By Order entered April 1, 2000, Appendix E to the Global Order, which set forth the ADRP, was published as Interim Guidelines at 30 Pa.B. 1764 (April 1, 2000) so that interested parties could comment on the effectiveness of the ADRP mechanism. Only Bell Atlantic-Pennsylvania, Inc. (hereinafter referred to as Verizon Pennsylvania, Inc. or Verizon PA) and the Association for Local Telecommunications Services (ALTS) submitted comments to the Commission on the ADRP mechanism.
After due consideration of these comments, as well as its own internal review of its procedures and existing rules and regulations, the Commission determined that certain revisions to the Interim Guidelines establishing the ADRP mechanism were appropriate to make the ADRP more efficient and to better fulfill its purpose. Subsequently, by Order entered July 13, 2000, the Commission revised the Interim Guidelines. The revised Interim Guidelines were published in the Pennsylvania Bulletin at 30 Pa.B. 3808 (July 29, 2000), which are attached hereto as Annex ''A.''
The Commission, however, understood that its ADRP mechanism was an experimental process and stated that within a year's time, it would again review the Interim Guidelines to evaluate the effectiveness of the ADRP in addressing and resolving inter-carrier disputes. Since the Interim Guidelines were last reviewed in July of 2000, which is almost 2 years ago, it is now time for the Commission to initiate a comprehensive review of the current Interim Guidelines. In particular, the Commission first seeks comment on whether the ADRP is still a necessary mechanism to ensure the success of the local telecommunications market in this Commonwealth. Additionally, the Commission seeks comment on whether the current ADRP mechanism is efficient and fulfills it purpose of providing prompt resolution for disputes between competing carriers. Essentially, the Commission is concerned about the need for and the overall effectiveness of its ADRP mechanism.
The Commission requests that all interested parties which advocated for the establishment of an Abbreviated Dispute Resolution mechanism and have utilized this procedure or might utilize this procedure if changes were made to provide comments so as to assist the Commission in making the appropriate determination; Therefore,
It Is Ordered That:
1. This Tentative Order, together with Annex A, shall be published in the Pennsylvania Bulletin.
2. All interested parties file comments on the following issues: (1) the need for the Interim Guidelines which established the ADRP in this Commonwealth; and (2) on the effectiveness of the ADRP mechanism in addressing and resolving inter-carrier disputes in an expedited manner.
3. All filed comments shall reference Docket No. M-00021685 and shall be submitted within 30 days of the date of publication in the Pennsylvania Bulletin to the Pennsylvania Public Utility Commission. The filing address is Attn.: James J. McNulty, Secretary, Pennsylvania Public Utility Commission, P. O. Box 3265, Harrisburg, PA 17105-3265.
4. The contact person regarding this matter is David E. Screven, Assistant Counsel, Law Bureau, (717) 787-2126.
5. A copy of this Tentative Order and Annex A shall be served upon the Pennsylvania Telephone Association, the Telecommunications Resellers Association, ALTS, all jurisdictional telecommunication utilities, the Office of Trial Staff, the Office of Consumer Advocate and the Small Business Advocate.
JAMES J. MCNULTY,
Secretary
Annex A
Interim Guidelines for Abbreviated Dispute Resolution Process
Preamble The success of local competition in Pennsylvania is dependent on the efficiency and effectiveness of carrier interconnection. Given the fact that in addition to interconnecting with each other, carriers are also competing with each other, disputes will arise which require expedited resolution by the Commission to prevent an adverse impact on telecommunications carriers' ability to serve their customers and to provide customers with uninterrupted service in a competitive environment. Recognizing that our current mediation, arbitration, and emergency relief regulations may not address the need for prompt resolution of disputes between competing telecommunications carriers, competitive, incumbent or otherwise, we are persuaded by the request of both sets of petitioners in the Global proceedings to implement an Abbreviated Dispute Resolution Process (ADRP). The ADRP is expected to be beneficial to both carriers and the public in that it addresses the need for telecommunications carriers to be heard promptly with regard to certain issues that impact on the development of local telephone competition.
1. Scope of ADRP. The ADRP is limited to disputes between telecommunications carriers which involve action or inaction of a telecommunications entity that: (1) allegedly compromises the ability of a party to provide uninterrupted service, (2) unreasonably precludes the provisioning of scheduled service, (3) allegedly violates a provision of an existing interconnection agreement, (4) contains allegations of predatory pricing, or (5) involves collocation space limitation disputes.
For purposes of the ADRP process, scheduled service includes scheduled appointment intervals for coordinated cut-over loop orders (''hot cuts''); scheduled connections, disconnections, and repairs of lines which one carrier sells, leases, or provides to another carrier, and the scheduled provisioning of products. A carrier unreasonably precludes the provisioning of a scheduled service when the carrier misses commitment dates for the provisioning of products (special access services, trunks, enhanced extended links, unbundled network elements platforms, etc.) or of scheduled service (hot cuts, maintenance and repair, etc.) without good cause.
ADRP is not designed to be a substitute for any dispute resolution procedures that may be specified in the parties' interconnection agreements; nor is the process designed to handle disputes that involve generic policy issues, consumer complaints against the carriers, or requests for damages.
2. Good faith negotiations. Before a petition is referred to ADRP, the petitioning party must engage in good faith negotiations with the answering party with respect to the dispute in question for at least 30 calendar days. However, if good faith negotiations nevertheless reach an impasse in less than 30 days, the party may demonstrate that such an impasse has occurred to qualify for ADRP. The parties may also stipulate that at least 30 days of good faith negotiations have occurred to qualify for ADRP.
3. Collocation disputes. Collocation space limitation disputes must first be analyzed by appropriate Commission technical staff prior to any request for ADRP. The aggrieved party in the collocation dispute shall first submit written notice to the Bureau of Fixed Utility Services (FUS) explaining the collocation dispute. The aggrieved party shall have had a tour of the carrier facility involved in the dispute prior to filing the notice with the Commission. The Commission technical staff will then tour the facility, with representatives of the parties, and listen to the arguments while viewing the evidence. Staff will then submit written findings of fact and conclusions to the parties. If the staff determination does not resolve the collocation dispute, the aggrieved party may then bring the collocation dispute before the OALJ by filing a Dispute Resolution Petition. The staff report may be introduced as evidence by either party if properly introduced and authenticated.
4. Petition for Resolution of Disputed Issues. A party directly involved in a dispute subject to ADRP that cannot be resolved through good faith negotiations may file a Dispute Resolution Petition with the Commission. If possible, such petitions should be submitted jointly by both parties.
Each petition shall include specifics of the action and/or inaction alleged to have violated one or more of the five standards identified in Section 1, above. The petition shall also include copies of all documents within the petitioner's possession that are likely to bear significantly on the issues raised in the petition. The petition shall be served upon the Office of Consumer Advocate, the Office of Small Business Advocate, the Commission's Office of Trial Staff (the ''Public Advocates''), and, if it is not a joint petition, upon the opposing party. As part of the Dispute Resolution Petition, the petitioning party must demonstrate either that it has engaged in good faith negotiations with the other entity for at least 30 days, or that the parties have reached an impasse in negotiations in less than 30 days. Petitions specifying collocation disputes must state that the PUC technical staff has previously rendered a determination pursuant to Section 3, above.
Finally, in order to ensure proper handling by Commission staff and to provide notice to the opposing party of the expedited schedule for processing these disputes, each ADRP petition should be clearly so identified by bold typeface above the normal caption on the first page as follows: ''Dispute Resolution Petition: Answer Due Within 7 Days.''
5. Serving copies and docketing. An original and two copies of the Dispute Resolution Petition shall be filed with the Secretary of the Commission. Each Dispute Resolution Petition will be assigned a separate docket number. Copies must also be served on the Respondent, Chief Administrative Law Judge of the Commission and upon the Public Advocates on the same date.
6. Assignment of an ALJ. Within four (4) calendar days of the filing and service of a Dispute Resolution Petition, an Administrative Law Judge shall be assigned to the matter. The Administrative Law Judge shall schedule a prehearing conference at the earliest possible date to determine whether the petition qualifies for ADRP and, if so, to determine the schedule for the proceeding and other matters relevant to management and resolution of the dispute. The presiding ALJ is authorized to reject any petition for dispute resolution that does not fall within the scope of these interim guidelines.
7. Answer. Within seven (7) calendar days of the filing of the Dispute Resolution Petition, the respondent shall file an answer with the Secretary. The answer shall include copies of all documents in the respondent's possession that are likely to bear significantly on the issues raised in the petition. Copies must also be served on the Petitioner, the Chief Administrative Law Judge and Public Advocates on the same date.
8. Public Advocates. The parties will be the primary participants in the Abbreviated Dispute Resolution Process. 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.
9. Evidentiary Hearing. The presiding ALJ will conduct an evidentiary hearing including sworn witnesses, reasonable cross examination and a transcription of the record. The parties will also have the opportunity to file briefs prior to the adjudication. The ALJ shall issue an Initial Decision resolving the dispute within 30 calendar days of the filing of the Dispute Resolution Petition, unless the ALJ extends the time frame for good cause shown recognizing that an expeditious result is in the public interest.
10. Discovery. The parties are encouraged to exchange information informally. The parties will also be permitted to seek leave to conduct such limited formal discovery as deemed reasonable and necessary by the presiding ALJ to resolve the contested issues. Whether and the extent to which leave to conduct limited formal discovery should be granted is a matter within the discretion of the presiding ALJ.
11. Exceptions. Participating parties may file exceptions to the Initial Decision of the ALJ within seven (7) calendar days of issuance. Reply exceptions must be filed within five (5) calendar days after exceptions are filed. If no exceptions are filed and if two Commissioners do not request review within 15 days of issuance, the Initial Decision of the ALJ will become a final order by operation of law. If exceptions are filed or if Commission review is requested, 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.
12. Mediation. The parties may, at any time during the ADRP proceeding, request the services of a Commission mediator consistent with the Commission's mediation policy statement at 52 Pa. Code §§ 69.391--69.394. The request shall act as a 30-day stay of the proceedings pending mediation. The parties may, by mutual agreement, further extend this period for an additional 30 days. No further extensions shall be permitted. If no settlement is reached, the stay will be terminated and the case referred back to the assigned Administrative Law Judge. Any time lost to unsuccessful mediation shall not count against the ALJ's time to issue an Initial Decision. If a settlement is reached, the assigned mediator will immediately issue a mediation report with the attached proposed settlement agreement to the assigned Administrative Law Judge for review and disposition by Initial Decision.
13. Other remedies. The ADRP is not intended to replace or preclude any other procedures or remedies otherwise available to any of the parties under law, and a party's participation in this dispute resolution process shall not be considered a waiver of any available substantive or procedural rights.
[Pa.B. Doc. No. 02-2123. Filed for public inspection November 22, 2002, 9:00 a.m.] _______
1 Joint Petition of Nextlink, et al. and Joint Petition of Bell Atlantic, et al., Docket Nos. P-00991648 and P-00991649 (September 30, 1999) (Global Order).
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