Ala. Admin. Code r. 770-X-5-.26

Current through Register Vol. 42, No. 11, August 30, 2024

Section 770-X-5-.26 - Requests For Arbitration

(1) General Provisions Governing Petitions For Arbitration

(a) Any party to interconnection negotiations conducted pursuant to Section 252 of the Telecommunications Act of 1996 may petition the Commission to arbitrate any unresolved issues in their negotiations during the period from the 135th to the 160th day (inclusive) after the date on which an incumbent LEC receives a request for negotiation.

(b) Petitions for arbitration shall be verified or submitted by affidavit and shall include at a minimum the following information:

1. The date on which the original request for negotiations was received.

2. A brief statement addressing with specificity, the disputed issues and setting out the position of the parties on such issues. Further, the statement must allege how the positions of other parties to the negotiations meet, or fail to meet the requirements of Section 251 of the Telecommunications Act of 1996, or any Federal Communications Commission or Alabama Public Service Commission rule, regulation or guideline.

3. A brief statement of the issues which have been resolved by the parties and a description of the resolution of same.

4. Where prices are in dispute, the petitioning party shall submit its proposed rates or charges and all relevant cost studies, and related supporting materials.

5. Any conditions which the petitioning party requests be imposed.

6. A proposed schedule for implementation of the terms and conditions by the parties to the negotiations.

7. Any requests for discovery of information from other parties along with an explanation of why the discovery of the information requested is necessary.

8. All prefiled testimony and any other documentation relevant to the dispute including copies of all documents in their possession or control on which they rely in support of their positions, or which they intend to introduce as exhibits at the arbitration hearing.

9. At the petitioning parties option, a proposed interconnection agreement may be submitted.

10. The petitioning party may request the consolidation of its arbitration with another arbitration proceeding pending at the Commission provided grounds supporting the request are submitted therewith.

(c) An original and ten (10) copies of the petition for arbitration and all other required information must be filed with the Secretary of the Commission. The petition and all required documentation shall, on the same day it is served on the Commission, be served on all parties to the negotiations for which arbitration has been requested. Such service on interested parties shall be demonstrated by a proper certificate of service. Petitions for arbitration which do not substantially comply with the aforementioned requirements may, in the discretion of the Commission, be rejected.

(2) Responses To Petitions For Arbitration

(a) Parties to the negotiations for which arbitration has been requested who do not join the request for arbitration shall have twenty-five (25) days from the date the Petition for Arbitration is filed with the Commission to submit a response to the Petition.

(b) All responses to Petitions for Arbitration shall be verified or submitted by affidavit and shall include at a minimum the following information:

1. A brief statement addressing with specificity, the disputed issues and setting out the position of the parties on such issues. Further, the statement must allege how the positions of other parties to the negotiations meet, or fail to meet, the requirements of Section 251 of the Telecommunications Act of 1996 or any Federal Communication Commission or Alabama Public Service Commission rule, regulation or guideline.

2. Where prices are in dispute, the responding party shall submit its proposed rates or charges and all relevant cost studies and related supporting materials.

3. A brief statement of the issues which have been resolved by the parties and a description of the resolution of same.

4. Any conditions which the responding party requests be imposed.

5. A proposed schedule for implementation of the terms and conditions by the parties to the agreement.

6. The discovery information requested in the petitioning parties Request for Arbitration along with any discovery requests the respondent has in its own regard. Such discovery requests shall be accompanied by an explanation of why the information requested is necessary.

7. All prefiled testimony and any other documentation relevant to the dispute including copies of all documents in their possession or control on which they rely in support of their position, or which they intend to introduce as exhibits at the Arbitration Hearing.

8. At the responding parties option, a proposed interconnection agreement may be submitted.

9. If the petition for arbitration which is being responded to included a request to consolidate with another pending arbitration proceeding, the responding party should specify its position regarding the consolidation requested.

(c) An original and ten (10) copies of responses to petitions for arbitration and all of the supplemental information required herein must be filed with the Secretary of the Commission. The response and all accompanying documentation required herein shall, on the same day it is served on the Commission, be served on all parties to the negotiations for which arbitration has been requested. Such service on interested parties shall be demonstrated by a proper certificate of service.

(3) Appointment of an Arbitration Panel and Facilitator

(a) Within fifteen (15) days following the receipt of a request for arbitration which complies with the above requirements, the Commission will, pursuant to Code of Ala. 1975, Section 37-1-89, appoint a special examiner to act as the facilitator of an arbitration panel which will also be appointed by the Commission. The arbitration panel will consist of the arbitration facilitator and two (2) additional panelists. Each Commissioner will appoint one member of the arbitration panel with the selection of the arbitration facilitator to rotate between the Commissioners. At the discretion of the Commission, the arbitration facilitator and the remaining members of the arbitration panel will be comprised of either Commission employees or non-biased third parties who are not Commission employees.

(b) The arbitration panel shall conduct an arbitration hearing which shall be presided over by the arbitration facilitator. It will be the responsibility of the arbitration panel to formulate a recommendation for the resolution of the issues being arbitrated which, if adopted by Commission order, will be binding on the parties to the arbitration.

(c) The Commission may, in its discretion, forego the above procedures if it determines that a particular petition for arbitration should be consolidated with a pending arbitration proceeding.

(4) Confidentiality

Until such time as the arbitration panel appointed formulates an arbitration recommendation which is submitted to the Commission for approval, any information specifically identified as being proprietary and submitted during the arbitration process will be considered and treated as confidential by the Commission. It shall be the responsibility of the parties to the arbitration to negotiate appropriate protective orders or agreements for the exchanges of information deemed proprietary.

(5) General Rules for Discovery

(a) All parties shall request and provide information through discovery in good faith. Any failure to cooperate in the discovery phase should be brought to the immediate attention of the arbitration facilitator and may result in a finding of failure to negotiate in good faith.

(b) Upon a finding of a failure to negotiate in good faith, the arbitration facilitator may at any point suspend the proceedings until compliance is obtained; strike all or any of the documents of such party; refuse to allow such party to support designated claims or defenses; or, proceed on the basis of the best information available from whatever source derived.

(c) As noted previously in these rules, the party petitioning for arbitration shall submit its requests for discovery and the required statement of justification therefor with its Petition for Arbitration. Respondents must submit the Discovery information requested by the party petitioning for arbitration along with their response to the Petition for Arbitration. The response to the Petition for Arbitration shall also include the respondents discovery requests and the required statement of justification therefor. The party petitioning for arbitration must submit the information requested by the respondent on discovery within ten (10) days of the filing date of the respondents request for said information.

(6) Pre-arbitration Hearing Conference - As soon as practicable following his or her appointment by the Commission, the arbitration facilitator shall schedule a prehearing conference between the arbitration panel and the parties to the arbitration to determine among other things:

(a) The scheduling of the required arbitration hearing;

(b) Identification and simplification of issues;

(c) Amendments to documents;

(d) Limitations on the number of witnesses;

(e) Issuance of rulings denying, limiting, conditioning or regulating discovery requests;

(r) The issuance of rulings supervising all or any part of any discovery procedure; and

(g) Such other matters as may aid in the simplification of the issues and disposition of the proceeding.

(7) The Arbitration Hearing

(a) The Arbitration Hearing will be conducted pursuant to the Commission's Rules of Practice except as specifically noted to the contrary herein. The arbitration facilitator will preside over the hearing.

(b) Unless the consolidation of related issues and matters is deemed necessary by the Commission pursuant to §252(g) of the Telecommunications Act of 1996, only the parties to the negotiations for which arbitration has been requested will be permitted to attend and participate in the arbitration process, including the arbitration hearing. The Commission may, at its discretion, however, allow a third party to attend, but not participate in an arbitration hearing if such party can demonstrate in a written petition that its attendance is necessary due to a compelling public interest. An original and ten (10) copies of any such petition by a non-party should be served on the Secretary of the Commission at least seven (7) days prior to the arbitration hearing with simultaneous service on all parties to the arbitration. Such service to be demonstrated by a proper certificate of service.

(c) The party filing the Petition for Arbitration shall begin the arbitration hearing by presenting all of its witnesses to be cross-examined. The party filing the response to the Petition for Arbitration shall then present all of its witnesses to be cross examined. When the parties jointly file the Petition for Arbitration, the arbitration facilitator shall decide the order in which the parties shall present their witnesses for cross examination.

(d) The arbitration panel will limit its consideration of any petition for arbitration and any response thereto to the issues raised in the petition or in the response. The parties to the arbitration may be required to provide additional information at the request of the arbitration panel if the arbitration panel deems such information necessary to the rendering of a decision on the unresolved issues. Information so requested of any party will, at the same time it is provided to the arbitration panel, be provided to the other parties to the negotiations for which arbitration was requested. If any party refuses or fails to respond on a timely basis to any reasonable request from the panel for information, the panel may proceed on the basis of the best information available to it from whatever source derived.

(e) A complete record of all arbitration proceedings shall be transcribed by a reporter appointed by the Commission. In the event that expedited transcripts are required in order to meet the mandates of the Telecommunications Act of 1996 at Section 252(b)(4), the cost of preparation of those expedited transcripts will be borne by the party petitioning for arbitration.

(8) Submission of Agreement on Negotiated Issues - Within ten (10) days following the conclusion of the arbitration hearing(s), the parties shall submit to the arbitration panel an agreement governing all matters that have been successfully negotiated between the parties and which, excluding the issues being arbitrated, constitute the entire agreement of the parties. Said agreement shall comply with the requirements of 770-X-5-.27(C).

(9) Recommendation of the Arbitration Panel

(a) As soon as practical following the conclusion of the arbitration hearing(s) and the submission by the parties to the arbitration of their agreement governing successfully negotiated issues, the arbitration panel will issue an arbitration report and recommendation resolving each issue set forth in the petition for arbitration and the response thereto. Said report and recommendation shall impose conditions that ensure that the resolution and conditions recommended meet the requirements of Section 251 of the Telecommunications Act of 1996. The report and recommendation shall also establish rates for interconnection services or network elements in accordance with Section 252(d) of the Telecommunications Act of 1996 as applicable, and shall provide a schedule for implementation of the terms and conditions by the parties to the agreement.

(b) The Commission shall serve the arbitration report and recommendation on the parties to the arbitration and on all parties on the Commission's Telecommunications service list. The Commission shall also serve on all parties on the Commission's Telecommunications service list the written statements which are required by 770-X-5-.26(H), and 770-X-5-.27(C)(2) and 770-X-5-.27(C)(3) to accompany the agreement of the parties to the arbitration concerning successfully negotiated issues. Interested parties who were not parties to the arbitration shall have ten (10) days to file comments concerning the arbitration panel's arbitration report and recommendation and the agreement of the parties to the arbitration concerning negotiated issues. Following the expiration of the 10-day period, the parties to the arbitration shall have ten (10) days to file reply comments addressing the filings received from non-parties as well as exceptions to the arbitration panel's arbitration report and recommendation.

(10) Commission Review of the Arbitration Report and Recommendation -Following all comment cycles, the Commission will review the arbitration report and recommendation of the arbitration panel, the agreement of the parties concerning successfully negotiated matters, any comments filed by non-parties to the arbitration, and any comments and exceptions filed by the parties to the arbitration. The Commission will then enter an arbitration order resolving the issues between the parties to the negotiations for which arbitration was sought and addressing the agreement of the parties on successfully negotiated issues not later than nine (9) months after the date on which the local exchange carrier received the request for negotiations which resulted in arbitration.

Ala. Admin. Code r. 770-X-5-.26

Effective March, 1993. Amended October, 1996. Filed with LRS February 5, 2 013. Filed for Codification in the Alabama Administrative Code by the Alabama Public Service Commission on February 5, 2013, pursuant to the Code of Ala. 1975, § 41-22-7.

Author: Alabama Public Service Commission

Statutory Authority:Code of Ala. 1975, §§ 37-1-38, 37-1-89, 37-2-3.