On July 18, 2018, the Federal Communications Commission (“FCC”) released a Report and Order that revamps the procedural rules governing formal complaint proceedings. The FCC consolidated and streamlined the rules governing formal complaints for pole attachment complaint proceedings filed under Section 224 of the federal Communications Act (47 U.S.C. § 224), common carriers (Section 208), and communications accessibility (Sections 255, 716 and 718). As a result, there will no longer be three different sets of procedural rules for complaint proceedings, depending on which statute one is proceeding under.
Other highlights of the new rules include changes to the filing deadlines and reply periods, new and expanded discovery mechanisms, enhanced authority for FCC staff to manage proceedings, and a “shot clock” for all proceedings of 270 days. Following is a summary of the more notable revisions to the rules:
- Accelerated Docket consideration of pole attachment complaints. Parties may now request inclusion of pole attachment complaints in the Accelerated Docket for resolution within 60 days (subject to staff approval).
- A shot clock that requires the FCC to resolve complaints within a defined time period of 270 days.
- Discovery as of right including up to 10 interrogatories along with complaints, 10 with answers, and 5 additional with replies. Previously, interrogatories were not routinely available under §224 for pole attachment proceedings.
- Information Designations that mandate both parties identify, with each pleading, the individuals likely to have firsthand knowledge of the information relevant to the allegations.
- Uniform filing deadlines, which include 30 days for filing an answer to a formal complaint and a shortened reply schedule of 10 days (down from 20) from service of the answer.
- Formalized authority and procedures for all formal complaints regarding the following:
- FCC staff to require status conferences
- Pre-complaint procedures
- Earnest settlement discussions between parties
- FCC staff supervised mediations, upon request
- Findings of Fact and Conclusions of Law are no longer required as part of non-dispositive pleadings (complaints and answers).
- Explicitly permits filing a Motion to Dismiss; however, will be disfavored, as the FCC believes that underlying legal merits of claims are already considered at the outset.
- Bifurcate liability from damages phases in a case to streamline presentation; though often done in the past, the process is now expressly authorized.
- Continues to require pole owners to provide pole attachment rate calculation information on request, including before complaint is filed.
The changes are an attempt to rationalize and streamline the complaint process, eliminate unnecessary filings, and enhance the ability of FCC staff to control the complaint process. Please do not hesitate to contact us if you have any questions about these new rules.
UPDATE: The FCC published in the Federal Register on September 4, 2018, making the rules effective on October 4, 2018.