NOTICES
PENNSYLVANIA PUBLIC UTILITY COMMISSION
Discontinuing Experimental Abbreviated Dispute Resolution Process
[35 Pa.B. 1313] Public Meeting held
January 13, 2005Commissioners Present: Wendell F. Holland, Chairperson; Robert K. Bloom, Vice Chairperson; Glen R. Thomas; Kim Pizzingrilli
Joint Petition of Nextlink Pennsylvania, Inc., et al., for Adoption of Partial Settlement Resolving Pending Telecommunications Issues; Doc. No. P-00991648
Joint Petition of Bell Atlantic-Pennsylvania, Inc., et al., for Resolution of Global Telecommunications Proceedings; Doc. No. P-00991649
Interim Guidelines for Abbreviated Dispute Resolution Process; Doc. No. M-00021685
Tentative Order
Discontinuing Experimental Abbreviated Dispute Resolution Process By the Commission:
In Appendix E to our Global Order1, the Commission adopted interim guidelines for an Abbreviated Dispute Resolution Process (ADRP) on an experimental basis to determine if the guidelines would further this Commission's mission to promote competitive markets by expediting resolution of certain disputes between competing telecommunications carriers. The guidelines have been once revised in an attempt to make the process more efficient and to better fulfill its purpose.2 The revised ADRP remained experimental, subject to further review.
At Public Meeting held November 7, 2002, the Commission sought public comment on the revised ADRP.3 The request for comment was published November 23, 2002 at 32 Pa.B. 5822. Comments were filed by Verizon Pennsylvania Inc., Verizon North Inc., and XO Pennsylvania, Inc.
Summary of ADRP (as Revised)
As of July 13, 2000, when the revised ADRP was adopted, the ADRP is set forth in a preamble and 13 enumerated paragraphs (''rules''). A summary is provided below.
The preamble sets forth the Commission's concern that the mediation, arbitration, and emergency relief regulations in place at the time the Global Order was issued may not have fully addressed the need for prompt resolution of disputes between competing telecommunications carriers, competitive, incumbent or otherwise. Thus, the Commission implemented the ADRP.
Rule 1 addresses the scope of the ADRP. The scope is limited to disputes between telecommunications carriers4 involving 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, including allegations of false claim of space exhaustion.5 The ADRP is not designed to be a substitute for any dispute resolution processes that may be specified in the parties' interconnection agreements; nor is it designed to handle disputes that involve generic policy issues, consumer complaints against the carriers, or requests for damages.
Rule 2 requires good faith negotiations between the parties for at least 30 calendar days before a petition is referred to ADRP, with limited exception.
Rule 3 concerns collocation space limitation disputes. It requires the aggrieved party to first submit written notice to the Bureau of Fixed Utility Services explaining the dispute. 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 dispute, then an ADRP petition will be brought to the Office of Administrative Law Judge.
Rule 4 describes the minimum standards for the petition. It encourages joint petitions, if possible as a product of the negotiation phase. The petition filed must include specifics of the action or inaction alleged. Copies of all documents within the petitioner's possession that are likely to bear significantly on the issues raised must be attached. Service upon the Office of Consumer Advocate, Office of Small Business Advocate, the Commission's Office of Trial Staff (collectively ''Public Advocates'') and, if not a joint petition, upon the opposing party is required. It also requires the petition to be clearly identified by bold typeface above the normal caption line on the first page as follows: ''Dispute Resolution Petition: Answer Due Within 7 Days.''
Rule 5 requires an original and two copies of the petition to be filed with the Secretary's Bureau. In addition to the respondent and Public Advocates, the Chief Administrative Law Judge should also be served on the same day. The Secretary will assign an individual docket number to each petition.
Rule 6 establishes that an Administrative Law Judge (ALJ) will be assigned to the petition within four calendar days of the filing and service. A prehearing conference will be scheduled at the earliest possible date to determine whether the petition qualifies for ADRP and, if so, to determine the schedule for the proceeding.
Rule 7 provides seven calendar days for the respondent to file an answer with the Secretary, including copies of all documents in respondent's possession that are likely to bear significantly on the issues raised in the petition.
Rule 8 establishes that the Public Advocates may participate in the proceeding but may not conduct formal discovery and are precluded from opposing the voluntary withdrawal of a petition due to consummation of a settlement between the parties.
Rule 9 provides that the presiding ALJ will conduct an on-the-record evidentiary hearing. Parties are given the opportunity to file briefs prior to adjudication. An Initial Decision resolving the dispute is due within 30 calendar days of the filing of the petition, unless the ALJ extends the time frame for good cause shown recognizing that an expeditious result is in the public interest.
Rule 10 encourages parties to exchange information informally. Parties may seek leave to conduct such limited formal discovery as deemed reasonable and necessary by the presiding ALJ.
Rule 11 allows parties to file exceptions to the Initial Decision within seven calendar days of issuance. Reply exceptions are due within five 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 will become a final order by operation of law. If exceptions are filed or if Commission review is requested, the matter is assigned to the Office of Special Assistants for preparation of a recommendation for Commission consideration at the earliest possible Public Meeting.
Rule 12 confirms that 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. Any time lost to unsuccessful mediation is not counted against the ALJ's time to issue an Initial Decision.
Rule 13 clarifies that the ADRP is not intended to replace or preclude any other procedures or remedies otherwise available to any party under law, and a party's participation in the ADRP shall not be considered a waiver of any available substantive or procedural rights.
Summary of Comments
Verizon Pennsylvania Inc. and Verizon North Inc. (collectively Verizon) filed joint comments. Verizon recommends certain improvements to the process. First, Verizon suggests that electronic mail should be the preferred method of service because e-mail service of documents is faster, easier and cheaper than first class mail and other forms of service. Verizon proposes that facsimile service be used where documents are paper and not available in electronic formats. Second, Verizon suggests that the due date for responsive pleadings be changed from seven calendar days to seven business days to ensure fairness and eliminate any advantage to an opposing party that decides to file a pleading late in the day on a Friday, especially a Friday before a holiday weekend.6 Third, Verizon suggests that the ADRP should include the opportunity for a respondent to file preliminary motions instead of going directly to a hearing. Fourth, Verizon suggests that Rule 6 should be revised to provide for telephonic prehearing conferences. Finally, Verizon suggests that the preamble be modified, placing emphasis on resolution of disputes between telecommunications carriers ''that have the potential to impact service immediately'' rather than the current emphasis on carrier disputes ''that impact on the development of local telephone competition.''
XO Pennsylvania, Inc. (XO) strongly recommends that the ADRP and interim guidelines be retained and enhanced. XO states that the ADRP is a useful procedural vehicle for facilitating interconnection, collocation and reciprocal compensation disputes as well as other related disputes that are subject to this Commission's jurisdiction. The traditional processes--formal complaints or petitions for emergency orders--have been time consuming for both the litigating parties and the Commission resulting in a delay in obtaining relief that resulted in a denial of relief.
XO recommends enhancing the ADRP by revising the interim guidelines in two respects. One proposed enhancement concerns collocation;7 the other concerns time intervals for issuance of final orders. Regarding collocation, XO respectfully suggests that the Commission amend the interim guidelines acknowledging that its technical staff will avail itself of the appropriate legal expertise during the course of any collocation investigation and that any relevant legal analysis will be part of the staff's report and conclusions regarding a given collocation space limitation dispute. Regarding time intervals, XO respectfully suggests that the Commission amend the interim guidelines adopting finite time intervals for the issuance of its final orders when exceptions and/or commissioner requests for review apply to an ALJ's ADRP Initial Decision. XO does not suggest what the time interval should be.8
Inventory of Commission Processes Available for Dispute Resolution
Pursuant to the Commission's powers and duties set forth in the Public Utility Code (66 Pa.C.S. §§ 101--3316), the Commission makes a number of dispute resolution processes available. An inventory of available processes with a brief description of each of them is set forth below.
Processes Open Across All Fixed Utility Groups
1. Formal Proceedings. 52 Pa. Code §§ 5.1--5.633, includes provisions for pleadings (subchapter A), hearings (subchapter B), interlocutory review (subchapter C), discovery (subchapter D), evidence & witnesses (subchapter E), presiding officers (subchapter F), briefs (subchapter G), exceptions (subchapter H), reconsideration (subchap- ter I), reports on compliance (subchapter J), and, appeals to court (subchapter K). These are our traditional formal complaint and petition procedures, providing for an on-the-record proceeding that results in an adjudication that may be appealed to an appropriate court.9 Generally, a complaint may be filed by a person complaining of an act done or omitted to be done by a person subject to the Commission's jurisdiction in violation, or claimed violation, of an appropriate statute, regulation or order. Generally, petitions may be filed when relief is sought on some subject matter within the Commission's jurisdiction, for example, to remove uncertainty about an obligation, or to seek Commission action with respect to an existing or prospective regulation. The assigned bureau varies based on the nature of the proceeding.
2. Mediation Process. 52 Pa. Code §§ 69.391--69.397. Mediation is a flexible program designed to facilitate the amicable resolution of disputes between the parties. The mediator renders neither a formal nor informal decision, rather, the mediator encourages the parties to seek negotiated settlements. Mediation is available in all qualified contested proceedings or proceedings which could be contested, as determined by the Office of Administrative Law Judge. If the parties do not reach settlement, the matter may be brought to resolution through formal proceedings.
3. Emergency Relief. 52 Pa. Code §§ 3.1--3.12. In a situation that presents a clear and present danger to life or property, or is uncontested, a petition for emergency relief may be filed. Requests for an interim emergency order under § 3.2 are assigned to the Office of Administrative Law Judge for disposition in accordance with due process requirements. Requests for ex parte emergency relief under § 3.6 may be brought to the Commission's attention through a written pleading or through informal contact. Such requests are directed to the Office of Executive Director for appropriate internal assignment and management. All ex parte orders must be ratified at the next scheduled public meeting.
4. Informal Complaint Resolution. The Commission's Bureau of Consumer Services (BCS) has an informal complaint process to resolve retail customer issues in all fixed utility types, pursuant to 66 Pa.C.S. § 308(d). For most retail telecommunications customer issues, including local service provider (LSP) billing accuracy, application, basic service suspension and other credit and collection issues, BCS has authority to issue informal decisions.10 These decisions can be appealed by filing timely notice of intent to appeal with the Secretary of the Commission. Timely notice for telecommunications informal complaints is ten days from the date the BCS decision is issued. 52 Pa. Code § 64.162.11
Occasionally, BCS addresses wholesale telecommunications issues. The issues might include procedures for dealing with end-users in a potential embargo or termination of a LSP, proper notice to the alleged delinquent LSP, and LSP disputes about migration of service (they include releasing accounts, porting numbers, interfering stations and similar issues). The informal process is not particularly effective at resolving wholesale billing disputes, but has been somewhat effective at facilitating acceptable payment terms between the parties. We note, however, that BCS has refrained from issuing informal decisions on complaints between certificated carriers.
Additional Processes--Those Open to Telecommunications Carriers
The following additional processes are also available specifically for resolution of telecommunications disputes. They are set forth chronologically, based on the entry date of the Commission order initiating the process.
5. Interconnection Agreement Mediation and Arbitration. Implementation of the Telecommunications Act of 1996, Order (entered June 3, 1996), as clarified by Order on Reconsideration (entered Sep. 6, 1996) at Docket No. M-00960799. This process was adopted following passage of the federal Telecommunications Act of 1996, 47 U.S.C. §§ 151, et seq., to ensure that the Commission meets all of its responsibilities under the federal Act and to give regulated companies the benefit of established policies to meet the Act's requirements. Where parties are unable to resolve issues arising from a carrier request for interconnection, service or network elements, the Commission will resolve all open issues through arbitration (or mediation, upon request). The lead bureau is Office of Administrative Law Judge. In formal proceedings, the assigned ALJ issues either an initial decision or a recommended decision, subject to review by the Commission upon exception or Commissioner request.
6. ''Opt In'' Expedited Process. Petition of Global NAPs South, Inc. for Arbitration of Interconnection Rates, Terms and Conditions and Related Relief, Order (entered May 27, 1999) at 17-18, Docket No. A-310771; In re: Application of CCCPA, Inc., d/b/a CONNECT! for Approval of an Interconnection Agreement Between CONNECT! and Bell Atlantic-Pa., Inc., Order (entered May 27, 1999) at 16-17 at Docket No. A-310740. This process is designed to expeditiously secure interconnection agreement rights under 47 U.S.C. § 252(i) and 47 C.F.R. § 51.809. The lead bureau is the Office of Administrative Law Judge. The assigned ALJ issues either an initial decision or a recommended decision, subject to review by the Commission upon exception or Commissioner request.
7. Master Street Address Guide Arbitration. Petition of Bell Atlantic-Pennsylvania, Inc. for a Declaratory Order Relating to Provision of Master Street Address Guides to Competitive Local Exchange Carriers, Supplemental Final Order (entered May 17, 2000), Docket No. P-00971203. This process establishes a statewide process for resolving Master Street Address Guide disputes, disputes that are related to the provisioning of 9-1-1 service. A principal arbitrator with subject matter expertise is assigned; the arbitrator is likely to be assigned from the Bureau of Fixed Utility Services. The arbitrator issues an informal determination resolving the dispute within five business days of a party conference. There is a five business day appeal period to the Commission. If no appeal is taken, the informal decision becomes a final Commission order as evidenced by a Secretarial letter.
8. Telco Monthly Meeting Forum (''OP-12'') Determinations. Re: Structural Separation of Bell Atlantic-Pennsylvania, Inc. Retail and Wholesale Operations, Order (entered Apr. 11, 2001) at ordering para. 12, Docket No. M-0001353. Regular meetings are hosted by the Office of Executive Director, with appropriate waivers, to address operational and performance issues with Verizon. An example of the type of issue addressed in the forum would be whether errors exist on wholesale bills and what can be done to eliminate the root cause of any existing errors. Settlements or informal determinations may be reached as a result of these meetings. If an informal determination issues, parties may object by providing formal notice to the Commission, in which case the parties retain all rights to a formal proceeding and traditional burdens of proof are not shifted. Because an informal determination may issue, this process differs from mediation. Issues are submitted for consideration by contacting the Office of Executive Director, as assisted by Law Bureau and Bureau of Fixed Utility Services, in accordance with procedures instituted pursuant to a Secretarial Letter issued June 7, 2002 at M-00001353. The request for resolution is not filed with or docketed by the Secretary.
9. Pennsylvania Carrier Working Group Deliberations. Re: Performance Measures Remedies, Final Opinion and Order on Performance Measures and Remedies for Wholesale Performance for Verizon Pennsylvania Inc. (entered Dec. 10, 2002) at ordering para. 20, Docket No. M-00011468 (establishing Pennsylvania Carrier Working Group). The Commission constituted this group to aid the Commission's work in evaluating whether Verizon discriminates between their retail and wholesale customers in the local marketplace. This group provides an informal avenue for LECs and Public Advocates to work out and recommend to the Commission modifications to the established objective measures of Verizon's wholesale performance and self-executing remedies, thereby, reducing or eliminating contested proceedings. An example of the type of issue addressed by the group is how to measure objectively whether retail bills are more accurate than wholesale bills. This group differs from the Telco Monthly Meeting Forum in that this group is focused on comparing retail and wholesale performance, whereas the monthly forum focuses exclusively on correcting any inadequacy in Verizon's wholesale services. The lead bureaus are the Bureau of Fixed Utility Services and Law Bureau. Any recommended modification may be initiated upon petition of one or more parties or via staff recommendation.
Discussion
The Commission has encouraged use of the ADRP. See, e.g., Petition of Sprint Commun. Co., L. P. for an Arbitration Award of Interconnection Rates, Terms and Conditions Pursuant to 47 U.S.C. § 252(b) and Related Arrangements with Verizon Pennsylvania Inc., Opinion and Order (entered Oct. 12, 2001) at 63, Docket No. A-310183F0002 (stating that the best course of action would be for the parties to file a joint ADRP petition); Further Pricing of Verizon Pennsylvania Inc.'s Unbundled Network Elements, Interim Opinion and Order (entered June 8, 2001) at 78, Docket No. R-00005261 (encouraging the parties to utilize the ADRP). The Commission has recognized, however, that the process has some limitations. See Petition of Yipes Transmission, Inc. for Arbitration Pursuant to Section 252(b) of Telecommunications Act of 1996 to Establish an Interconnection Agreement with Verizon Pa., Inc., Opinion and Order (entered Oct. 12, 2001) at 29-32, Docket No. A-310964 (observing, without deciding, that ADRP may be inadequate as a regulatory response to the resolution of disputes taking place in a competitive and dynamic marketplace). It has also been observed that the process has not always been properly invoked. See Petition of Core Commun., Inc. for Resolution of Dispute with Verizon Pa. Inc. Pursuant to the Abbreviated Dispute Resolution Process, Initial Decision at n. 2, Docket No. A-310922F7000 (concluding that petition filed pursuant to the ADRP did not qualify for such treatment). Questions about the proper use of the process have resulted in discontinuation of the ADRP petition in favor of a conventional formal proceeding. See, e.g., Petition of Verizon Pennsylvania Inc. for Resolution of a Dispute with CTSI, LLC Pursuant to the Abbreviated Dispute Resolution Process, Opinion and Order (entered July 9, 2004) at 10-11, Docket No. P-00042088.
Verizon and XO submitted comments identifying recommendations for further revisions. However, given the limited use of ADRP as well as the fact that only two companies responded to our request for comments, we question whether ADRP is serving a useful purpose.
Therefore, we tentatively conclude that the ADRP should be discontinued. Our experience with the process suggests that there is no justifiable need for continuing the process. The lack of demand and limited interest, the confusion over the proper use of the process, the recommendations for change from commenters, and the availability of a number of other formal and informal processes are the basis for our conclusion.
Our aim of providing an expedited path for resolution of certain issues might be better accomplished in other ways. Thus, rather than re-revise the ADRP, we tentatively conclude that the ADRP experiment should be discontinued at this time.
Interested parties are invited to comment before this determination becomes final. Any comment filed should address certain questions set forth below. The existing ADRP shall remain available pending a final order.
Request for Public Comment
Interested parties are invited to comment on our tentative conclusion to discontinue the experimental ADRP process. Any commenter who takes the position that the process should be retained should provide an answer to the following questions:
1. Have you been a party in an ADRP proceeding? Please identify the proceeding.
2. Under what general circumstances would you expect to be a party in an ADRP proceeding?
3. What is the advantage of the ADRP over other available processes?
4. Why are other available processes insufficient to adequately address the issues that fall within the scope of the ADRP?
5. What changes, if any, would you recommend to the ADRP?
6. If retained, should the ADRP (or revision thereof) be codified? Why?
Comments are due within 30 days of publication in the Pennsylvania Bulletin. Comments shall be filed only at Docket No. M-00021685; Therefore,
It Is Ordered:
1. A copy of this Tentative Order shall be delivered for publication to the Pennsylvania Bulletin.
2. Comments to our tentative conclusion to discontinue the Abbreviated Dispute Resolution Process are due within 30 days of publication in the Pennsylvania Bulletin. Any commenter who takes the position that the process should be retained should answer to the numbered questions set forth in the body of this Order.
3. Comments shall be filed only at Docket No. M-00021685.
JAMES J. MCNULTY,
Secretary______
1 Joint Petition of Nextlink, et al., and Joint Petition of Bell Atlantic, et al., Order (entered Sep. 30, 1999), Docket Nos. P-00991648 and P-00991649 (Global Order).
2 Id., Order (entered July 13, 2000).
3 Tentative Order Requesting Comments on Revising the Abbreviated Dispute Resolution Process, Order (entered Nov. 13, 2002), Docket No. M-00021685.
4 Circumstances may exist where the respondent is other than a telecommunications carrier. For example, the respondent might be a County. See Petition of Allegiance Telecom of Pennsylvania For Resolution of Dispute Pursuant to the Abbreviated Dispute Resolution Process, Opinion and Order (entered Sep. 4, 2001), Docket No. P-00011882 (using the ADRP to resolve dispute arising from Delaware County's refusal to allow access to the Master Street Address Guide database).
5 Pennsylvania P. U. C. v. Verizon Pa., Inc., Opinion and Order (entered June 8, 2001) at 68-69, Docket No. R-00994697 (providing for expedited Commission review, through the ADRP, of any CLEC claim regarding allegations of a false claim of space exhaustion).
6 Verizon applies its suggestion to Rule 7 (Answer) and to Rule 11 (Exceptions and Reply Exceptions).
7 Collocation space limitation disputes are one of the enumerated types of ADRP-qualified disputes. Collocation disputes must first be analyzed by appropriate Commission technical staff prior to any request for ADRP. The aggrieved party shall first submit written notice to the Bureau of Fixed Utility Services explaining the dispute. Commission technical staff will tour the facility, with representatives of the parties, and listen to 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 dispute, then an ADRP petition is filed. The staff report may be introduced as evidence by either party if properly introduced and authenticated. Interim Guideline Rule 3, reproduced in 32 Pa.B. at 5824.
8 A similar comment was made by the FirstEnergy Companies in the context of formal petitions generally. The FirstEnergy Comments at L-00020156 suggest that the Commission should render a decision on or before seven months after a petition is filed, borrowing from the statutory 7-month timelines established in 66 Pa.C.S. § 1308(d) for traditional base rate cases. Presumably, in an abbreviated process, the time interval would be shorter or at least not longer than the statutory deadline.
9 In some instances, a Commission order establishes a time limit for completion of the case. This has been done in cases involving the implementation of Chapter 30 of the Public Utility Code. See, e.g., Re: Commonwealth Telephone Company of Pennsylvania, Petition and Plan for Alternative Form of Regulation Under Chapter 30, Order (entered Jan. 17, 1997) at 134, as implemented in Final Alternative Regulation Plan of Commonwealth Telephone Company at 21, Docket No. P-00961024 (establishing a 105-day time frame for a Commission decision).
10 For further information on Commission policy regarding BCS payment arrangements, see Stammel v. PG Energy, Opinion and Order (entered May 21, 2003), Docket No. C-20027994.
11 Compare 52 Pa. Code § 56.172 (providing 20-day appeal period for other fixed utility types).
[Pa.B. Doc. No. 05-312. Filed for public inspection February 11, 2005, 9:00 a.m.]
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