HomeMy WebLinkAboutPROCESS.docxMEDIATION AND ARBITRATION PROCEDURES
FOR INTERCONNECTION ISSUES
Background
Section 252 of the federal Telecommunications Act of 1996 provides for the mediation and arbitration of interconnection issues not resolved by direct negotiations between parties. State commissions are designated as the primary entity for facilitating resolution of such disputes. The Act also calls for state commissions to approve interconnection agreements, including those in existence prior to the date of enactment. Section 251 establishes broad requirements for acceptable interconnection agreements. The Federal Communications Commission’s (FCC) recently issued interconnection order (FCC 96-325) further defines these requirements.
At any point during negotiation of an interconnection agreement, Section 252 permits any party involved in the negotiation to ask this Commission to participate in negotiations and mediate any disputes that arise. Section 252 also sets a timetable under which requests for arbitration may be filed with and addressed by the Commission. Parties requesting Commission arbitration must do so between 135 and 160 days after the date upon which an incumbent local exchange company (LEC) received the request for negotiation of an interconnection agreement under Section 252. After receiving a request for arbitration, the Commission has nine months from the date on which the incumbent LEC received the request for negotiation to resolve all contested issues.
Parties must submit a completed agreement to the Commission for approval. The Commission shall have 90 days from the date of submission to approve or reject a negotiated agreement, including those arrived at through the use of voluntary dispute resolution procedures such as mediation. An arbitrated agreement must be approved or rejected by the Commission within 30 days. If the Commission fails to act within the specified time frames, the agreement is deemed approved.
The Idaho PUC has a long history of promoting the use of dispute resolution methods other than litigation to reach agreement on some or all contested issues in both formal and informal matters brought to the Commission. The Telecommunications Act affords the Commission another opportunity to encourage parties to use medition, arbitration, a combination of mediation and arbitration, or other forms of alternative dispute resolution (ADR) during negotiations. Parties are encouraged to retain qualified mediators and/or arbitrators to resolve contested issues. The Commission has determined that its current Rules of Procedure (IDAPA 31.01.01.000 et seq.) provides the framework for handling matters under the Telecommunications Act. In an effort to provide further guidance to parties of the Commission’s expectations, the Commission proposes to adopts the following procedural requirements.
Definitions
The term “mediation” refers to use of a neutral third party (mediator) who helps parties in conflict reach a mutually satisfactory resolution to a dispute. Parties to the dispute retain the power to make decisions consistent with their interests and the goal of reaching agreement. The mediator is not empowered to render a decision.
The term “arbitration” refers to use of a neutral third party (arbitrator) who resolves a dispute by rendering a decision after hearing arguments and reviewing evidence. Arbitration may be binding, wherein the parties in conflict agree in advance to abide by the arbitrator’s decision, or non-binding, wherein the parties are free to accept or reject the arbitrator’s decision.
The term “mediation-arbitration” or “med-arb” refers to use of a blended mediation and arbitration process. The parties in conflict agree in advance that the mediator-arbitrator will first attempt to mediate issues in dispute. Any remaining unresolved issues will be decided by the mediator-arbitrator.
Voluntary negotiations
Use of neutral third party. To conserve the Commission’s limited resources and to increase the likelihood of successful negotiation without Commission intervention, parties are encouraged to retain independent mediators and/or arbitrators who meet the professional standards of the Society of Professionals in Dispute Resolution, the American Arbitration Association, the Idaho Mediation Association, or similar professional associations as early as possible in the negotiation process. Agreements resulting from use of a voluntary process by parties prior to requesting arbitration by the Commission shall be deemed to be agreements negotiated pursuant to Section 252(a) of the Telecommunications Act. A neutral third party may not be compelled to testify in any subsequent Commission arbitration proceeding involving the parties to which dispute resolution services were provided by the neutral third party.
Request for arbitration by Commission
Binding arbitration. All requests for arbitration shall be submitted to the Commission by petition and processed pursuant to the Commission’s Rules of Procedure. Arbitration requests to the Commission will be resolved in one of two ways. At its discretion, the Commission may act as an arbitration panel in a manner similar to that used in resolving complaints filed pursuant to the Public Utilities Regulatory Policies Act (PURPA). Alternatively, the Commission may appoint a neutral third party to arbitrate any or all issues in dispute, with all costs to be paid by the parties to the dispute. If the parties can agree to retain a particular arbitrator, the identity of the arbitrator should be provided in the petition or response. In either case, arbitration is binding on the parties. The arbitratration shall be limited to the disputed issues set forth in the petition and the response by the non-petitioning party, if any.
Content of Petition. A petition must contain the following information:
(1) name(s) of the petitioner’s representative(s) for service and address(es) for purposes of receipt of all official documents, and telephone and facsimile number;
(2) if the petitioner is not an incumbent LEC and intends to provide local exchange service, proof that petitioner has submitted to the Commission a request for a Certificate of Public Convenience and Necessity to provide local exchange service in Idaho;
(3) date of request for negotiation of interconnection agreement, date such request was received by the incumbent LEC, and deadline for resolution of all contested issues;
(4) evidence that the petitioner has attempted to resolve the dispute through negotiation, voluntary mediation or arbitration, or other alternative dispute resolution methods prior to requesting Commission arbitration;
(5) identification of the other party or parties to the negotiation and the remaining issues in dispute, a detailed description of the position of each of the parties with respect to those issues, and specific information of the petitioner’s final offer on each issue; and
(6) identification of any other issue discussed and resolved by the parties.
Notice of Petition. The Commission will issue a Notice of Petition, allowing the non-petitioning party the opportunity to respond within 25 calendar days after receipt by the Commission of the request for arbitration. Section 252(b)(3). The non-petitioning party has seven calendar days after issuance of the notice to challenge the correctness of the dates provided under requirement (3) above.
Response by non-petitioning party. The non-petitioning party (respondent) shall file a response providing the same information required of the petitioner as specified above.
Limited participation. Participation in an arbitration is limited to the Commission and parties involved in the negotiation of the interconnection agreement at issue unless all parties consent to allow participation by others. When the Commission serves as arbitrator, the Staff may assist the Commission in its review of the disputed issues. If the Commission determines that mediation may expedite resolution, it may designate members of the Staff to mediate one, some, or all of the issues in dispute. Any mediation or other dispute resolution performed by members of the Commission Staff shall be considered an informal proceeding and conducted according to Rules 21-24 of the Commission’s Rules of Procedure.
Representatives of parties. Persons appointed to represent parties must have the power to make decisions and committments.
Discovery. Discovery will be conducted at the discretion of the arbitrator, and must be relevant to the issues in dispute or to approval of the agreement. Parties shall be directed to exchange relevant information expeditiously. If the parties refuse or fail to respond on a timely basis to any request for information from the arbitrator, the arbitrator may proceed on the basis of the best available information from whatever source derived. Section 252(b)(4).
Good faith negotiation. Parties must be able and willing to meet and confer at reasonable times and places with the intent of reaching agreement on issues in dispute. Failure to reach agreement on an issue(s) does not constitute evidence of failure to negotiate in good faith.
Arbitration decision. The arbitrator shall ensure that the resolution of any contested issues and any conditions it imposes on the parties to the agreement meet the requirements set forth in Section 251 of the Telecommunicatons Act and all relevant regulations prescribed by the FCC pursuant to Section 251. Any rates for interconnection, services, or network elements must be established according to Section 252(d). The arbitrator may issue a proposed decision, giving parties 10 calendar days to respond. If a proposed decision is issued, the parties may use the proposed decision as a basis for further private negotiation, and may submit evidence within the response period to indicate they have reached agreement on one, some or all of the issues previously in dispute. Any settlements will be handled pursuant to Rules 271-276 of the Commission’s Rules of Procedure. Whether or not a proposed decision is issued, the arbitrator must issue a final decision which shall be binding on the parties. The decision must provide a schedule for implementation of the terms and conditions by the parties to the agreement.
Final Commission review of agreements
Review by Commission. All interconnection agreements reached through negotiation or arbitration shall be submitted to the Commission for final approval. The review process shall be conducted using Modified Procedure pursuant to Rules 201-204 of the Commission’s Rules of Procedure.
Modified Procedure. The Commission shall issue a Notice of Modified Procedure giving all interested parties 14 days from the date of the notice to file written protests or comments. The Commission will consider any responses received within the deadline and may set the matter for hearing or may decide the matter and issue its order on the basis of the written positions before it. The Commission shall approve or reject the agreement, with written findings as to any deficiencies pursuant to Section 252(e).
Timelines for Decision. The Commission will issue its final order reviewing a negotiated agreement within 90 days after submission of the agreement or within 30 days after submission of an arbitrated agreement. If the Commission does not act to approve or reject the agreement within 90 days after submission by the parties of an agreement adopted by negotiation under Section 252(a), or within 30 days after submission by the parties to an agreement resolved by arbitration under Section 252(b), the agreement shall be deemed approved.
Grounds for Rejection. The Commission shall reject an agreement (or any portion thereof) adopted by negotiation under Section 252(a) if it finds that: (1) the agreement (or portion thereof) discriminates against a telecommunications carrier not a party to the agreement, or (2) the implementation of such agreement or portion is not consistent with the public interest, convenience, and necessity. The Commission shall reject an agreement (or any portion thereof) adopted by arbitration under Section 252(b) if it finds that the agreement does not meet the requirements of Section 251, including the regulations prescribed by the FCC pursuant to Section 251, or the standards set forth in Section 252(d).
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