26 Del. Admin. Code § 4000-4.0

Current through Register Vol. 28, No. 7, January 1, 2025

Section 4000-4.0 - Arbitration

4.1 Trigger

4.1.1 A telecommunications carrier involved in a negotiation may request arbitration under 47 U.S.C. § 252(b)(1) by timely filing with the Commission and serving upon the other telecommunications carrier and the Public Advocate, on the same day, the following documents:

4.1.1.1. a Petition for Arbitration, which shall include:

4.1.1.1.1 the name and address of the petitioning carrier;

4.1.1.1.2 the name and address of the other carriers in the negotiation;

4.1.1.1.3 the name, address, and voice and facsimile telephone numbers for the attorney or other representatives for the petitioning carrier;

4.1.1.1.4 the name, address, and voice and facsimile telephone numbers for the attorney or other representative for the other carrier involved in the negotiations; and

4.1.1.1.5 the date when the request for negotiation was made and the date for completion of the arbitration.

4.1.1.2 a Statement of Unresolved Issues, which shall include:

4.1.1.2.1 a listing of all issues between the carriers which have not been resolved in the negotiations;

4.1.1.2.2 a citation of each state or federal statute, rule, order, or docket which may govern, or be related to, each of the unresolved issues;

4.1.1.2.3 a detailed statement of each carrier's position with respect to each unresolved issue;

4.1.1.2.4 a statement of the last offer made by each carrier on each of the unresolved issues;

4.1.1.2.5 a statement describing any information which the petitioning carrier believes the arbitrator should request from the other carrier, with reasons why such information would be beneficial;

4.1.1.2.6 a statement of any conditions which the petitioning carrier requests be imposed;

4.1.1.2.7 a proposed schedule for the implementation of the terms and conditions of each arbitrated issue; and

4.1.1.2.8 a statement indicating the petitioning carrier's position of what type of proceeding is necessary to resolve each of the unresolved issues.

4.1.1.3 All relevant material and documentation, appropriately referenced, which the petitioning carrier wishes the arbitrator to consider in resolving each of the unresolved issues.

4.1.1.4 Material and documentation relevant to any other issue discussed and resolved during the negotiations.

4.1.2 Within twenty-five days after service of the documents set out above, each other carrier to the negotiations may file with the Commission and serve upon the requesting carrier and the Public Advocate the following documents:

4.1.2.1 a Response which shall include a counter-statement of any information set out in the Petition for Arbitration which the carrier believes is incorrect, incomplete, or inadequate;

4.1.2.2 a Counter-Statement of Unresolved Issues which shall include that carrier's responses to the listings and statements required to be set out in the Statement of Unresolved Issues; and

4.1.2.3 all relevant material and documentation, appropriately referenced, which the non-requesting carrier wishes the arbitrator to consider in resolving each of the unresolved issues.

4.1.3 Within thirty-two days after the filing of the Petition for Arbitration, the Public Advocate may file with the Commission, and serve upon the carriers, a notice indicating whether the Advocate will participate in the arbitration. If the notice indicates an intent to participate, the Public Advocate shall, with such notice, file and serve a document setting forth the Public Advocate's position on all the unresolved issues and the Public Advocate's position on the appropriate proceedings necessary to resolve each disputed issue.

4.1.4 Within forty days after the filing of the Petition for Arbitration, the Commission Staff may file with the Commission, and serve upon the carriers and the Office of the Public Advocate, a notice indicating that Staff desires to participate in the arbitration and setting forth the Staff's position on all the unresolved issues and the Staff's position on the appropriate proceedings necessary to resolve each disputed issue.

4.1.5 Disputes over whether the request for arbitration was timely or whether any issue is properly subject to arbitration shall be decided by the arbitrator. The arbitrator shall presume that all unresolved issues are subject to arbitration unless a carrier provides notice of such an objection in its Statement or Counter-Statement of Unresolved Issues. If such claim has been made, the objecting carrier shall be required to demonstrate, clearly and convincingly, that the issue is not subject to arbitration.

4.1.6 Trade secrets and commercial or financial information submitted during the arbitration which is of a privileged and confidential nature shall not be considered public records and will be held and treated as confidential by the Commission, the arbitrator and adjuncts, the carriers, the Public Advocate, and the Commission Staff.

Interpretation. These provisions provide a pleading and document submission cycle for the carriers once the negotiation window opens under 47 U.S.C. § 252(b)(1). The Petition and Response provide the Commission with the identify of contact persons and the deadline for completing arbitration. The Statement of Unresolved Issues and the corresponding Counter-Statement seek to narrow the issues and positions and assist the Commission and the arbitrator to determine the nature of the disputes. This will aid in the task of selecting adjuncts (see below) and in determining the type of further proceedings which might be required.

4.1.8 Each carrier's summary of its position and the accompanying documentation submitted should be sufficiently detailed and comprehensive to allow the arbitrator to resolve the disputed issues. A carrier should assume that it may not be allowed to submit any further argument or documentation and that the unresolved issues will be decided on the materials submitted in this pleading cycle.

4.1.9 As noted before, the guidelines allow the Public Advocate to participate in the arbitration process. To do so, the Public Advocate must file a document revealing whether the office will participate. If participation is indicated, the Advocate must also submit a summary of that office's position on the disputed issues and the level of process desired for each. This will allow the arbitrator to determine what proceedings to hold. Similarly, the Commission Staff has the power, but not the obligation, to become a participant in the arbitration. To do so, Staff must file a notice of its intent along with a position paper. Because the decision of Staff to participate may, in many instances, depend on the Public Advocate's participation, the Staff may file its pleading last.

4.1.10 If Staff does elect to participate, the members of Staff assigned to present Staff's position shall remain separate from those members acting as arbitrators or adjuncts. No other entity or person may participate in the particular arbitration process.

4.1.11 Each carrier, the Public Advocate, and the participating Commission Staff must also indicate the level of process it feels is necessary to resolve adequately and appropriately the disputed issues. Thus, each carrier, the Advocate, and Staff, should indicate whether the issue can be resolved on the written documents or whether it might require a trial-type hearing, involving oral testimony, cross-examination, etc.

4.1.12 Consistent with 47 U.S.C. § 252(b)(2)(A)(iii), the guidelines require the petitioning carrier to also provide documentation pertaining to the issues on which the carriers have already resolved during the negotiations. By having this information about the resolved issues provided early on, the Commission can then begin the review process of the entire agreement.

4.2 Appointment of Arbitrator and Adjuncts

4.2.1 Within ten days after the receipt of a Petition for Arbitration, the Executive Director of the Commission shall appoint a neutral arbitrator to resolve the disputed issues. Generally, the arbitrator shall be a Hearing Examiner employed by the Commission; however, the Executive Director may, in his discretion, appoint another disinterested, qualified person to act as arbitrator. Unless the carriers agree, the Executive Director shall not appoint as arbitrator a person who previously served as mediator in the same negotiation. The Executive Director shall promptly notify the carriers and the Public Advocate of the person appointed as arbitrator.

4.2.2 At any time during the arbitration, the Executive Director of the Commission, at the request of the arbitrator or otherwise, may appoint one or more adjuncts to assist the arbitrator. Such adjuncts may be persons who possess particular or specialized knowledge, skill, or expertise which may be helpful to the arbitrator. Such adjuncts shall act under the direction and supervision of the arbitrator and provide guidance to the arbitrator concerning any relevant issue. With the express approval of the arbitrator, such adjuncts may participate in any hearings conducted and may request the carriers to submit any additional documents, information, or data.

4.2.3 The arbitrator shall fairly and efficiently resolve any unresolved issues in accord with 47 U.S.C. § 252(c). In so doing, the arbitrator shall insure that such resolution is consistent with any governing state law, regulation, and standard.

4.2.4 Neither a carrier involved in arbitration, the Public Advocate, nor any member of the Commission Staff involved as a participant in the arbitration shall have any ex parte contacts with the arbitrator or any appointed adjunct concerning any substantive matter related to the arbitration.

4.2.5 Interpretation. Under these guidelines, the Executive Director is specifically authorized to designate the arbitrator and any adjuncts. In most situations, the arbitrator and adjuncts will come from the pool of members of the Commission Staff, outside rate counsel, and consultants. The function of the adjunct is to assist the arbitrator in understanding complicated technical, financial, or economic issues. The arbitrator remains the ultimate decision-maker. However, the arbitrator may delegate to the adjunct the authority to make inquiries during any hearing and to request further documentation from the carriers. While the adjunct may provide additional insight, the arbitrator's decision still must be based on materials submitted in accord with these guidelines.

4.2.6 Given the number and nature of unresolved issues in an arbitration, the Executive Director may assign more than one adjunct to any arbitration. As noted in the introduction, the arbitrator has dual responsibilities. The arbitrator must umpire the dispute between the carriers. However, the arbitrator must also insure that any final resolution is compatible with any governing state statutes, rules, orders, and policy.

4.2.7 The arbitrator and the adjuncts should be insulated from contacts with any participant except when all the participants will have the opportunity to be heard. This bar on closed door communications extends to the members of the Commission Staff involved in representing Staff when Staff has given notice that it wishes to participate in the arbitration.

4.3 Paper Resolution or Formal Oral Evidentiary Hearing

4.3.1 At any time after the filing of the Response, the arbitrator, or the adjunct upon direction, may direct the carriers to submit additional information, data, documents, or memoranda to assist in the determination of any unresolved issue.

4.3.2 Within forty-five days after the filing for a Petition for Arbitration, the appointed arbitrator shall notify the carriers, the Public Advocate, and Commission Staff of:

4.3.2.1 the arbitrator's identification of the unresolved issues which will be subject to arbitration;

4.3.2.2 the opportunity, if any, for the carriers to submit written responses and additional materials in response to the initial pleadings and the date for submission of such responses;

4.3.2.3 the scope of discovery, if any, to be permitted and a schedule for the filing of discovery requests and responses; and

4.3.2.4 the type of resolution process which the arbitrator has tentatively concluded will be used for each of the unresolved issues.

4.3.3 The arbitrator may conduct a preliminary conference in person or by telephone in order to clarify the issues, to obtain evidentiary resolutions, to set scheduling, and to consider any other matter designed to expedite the arbitration.

4.3.4 If the arbitrator shall determine that a formal oral evidentiary hearing is needed to resolve disputed material facts or would be helpful, the arbitrator shall notify the carriers, the Public Advocate, and Commission Staff, in writing of:

4.3.4.1 the date, time, and place for the oral evidentiary hearing;

4.3.4.2 the date for filing and service of any pre-filed direct testimony, if any;

4.3.4.3 the date for each participant to file and serve a list of its proposed witnesses and exhibits;

4.3.4.4 the date for filing and service of any legal memoranda, if any; and

4.3.4.5 the format for the conduct of the oral evidentiary hearing.

4.3.4.5.1 Within five days after the conclusion of an oral evidentiary hearing, each carrier shall submit to the arbitrator and serve upon the other carrier, the Public Advocate, and Commission Staff, a proposed award setting forth a resolution on each unresolved issue. Such proposed award shall set forth the rationale for each resolution.

4.3.5 If the arbitrator determines that a formal evidentiary hearing with oral testimony is not necessary to resolve a disputed issue, the arbitrator shall notify the carriers, the Public Advocate, and Commission Staff, in writing of:

4.3.5.1 the date, time, and place for consideration of the issue;

4.3.5.2 the date, if any, by which participants can file and serve additional material not already included with the Petition and Response, or not previously requested by the arbitrator;

4.3.5.3 the date, if any, for filing and service of any legal memoranda, if any; and

4.3.5.4 the format for the conduct of the consideration.

4.3.5.4.1 Within five days after the conclusion of the consideration, each carrier shall submit to the arbitrator and serve upon the other carrier, the Public Advocate, and Commission Staff, a proposed award setting forth a resolution on each unresolved issue. Such proposed award shall set forth the rationale for each resolution.

4.3.6 The proceedings at any formal oral evidentiary hearing or at an informal consideration shall be recorded, either by audio tape recording or stenography, for use by the Commission. Either carrier may arrange, at its own expense, to have an additional form of recording performed.

4.3.7 The arbitrator may close arbitration proceedings to the public in order to protect against disclosure of trade secrets and commercial or financial information which is of a privileged or confidential nature.

4.3.8 Within nine months after the date on which negotiation was requested, the arbitrator shall file with the Commission and serve on the carriers, the Public Advocate, and Commission Staff, a written award which shall resolve all unresolved issues, set a schedule for implementation, and comply with 47 U.S.C. § 252(c).

4.3.9 If the carriers reach voluntary agreement after the initiation of arbitration, the carriers shall promptly notify the arbitrator and file with the Commission and serve on the Public Advocate a dismissal of the arbitration.

4.3.10 The Commission shall charge each carrier to the arbitration equally for the costs of conducting the arbitration.

Interpretation. These guidelines commit to the arbitrator the decision concerning the type of process which should be undertaken to adequately resolve each of the disputed issues. Soon after the close of the pleading cycle, the arbitrator is given the power to allow the carriers an opportunity to file rebuttal responses and to undertake discovery on a set schedule. Then, or at some later date, the arbitrator will make such a decision on how to hear the issues. Such a decision will be based upon the carriers' earlier submissions, including their statements about the needed process. For legal questions, the arbitrator may determine to proceed on the "paper record" and only hear legal arguments. For issues which involve disputed factual questions, such as costs, or which may require an appreciation of complex technology, the arbitrator may desire to conduct a full evidentiary hearing to provide clarity on the issue. In either case, the arbitrator must notify the participants of the hearing date, the type of evidence or exhibits which will be permitted, and the procedures to be utilized at the scheduled proceeding. For oral evidentiary hearings, the participants must exchange witness and exhibit lists. The arbitrator can employ both types of hearings concurrently, choosing to resolve several issues via the paper record and make others subject to oral evidentiary hearings.

After either type of proceedings, each carrier must submit to the arbiter a proposed award, which must detail why it should prevail on each issue in the arbitration. Such submissions will serve in the stead of briefing and will assist the arbiter to promptly file his decision. The arbitrator may require the carriers to accompany such written submissions with an electronic word-processing file containing the proposed award.

References in the above guidelines requiring service upon, and action by the Public Advocate and the Commission Staff, are applicable only if the Advocate and Commission Staff have indicated a desire to participate in the arbitration. If the Advocate and Staff have not given the required notification, the references in the above guidelines are not applicable.

As required by the federal Act, the arbitrator must file his award within nine months after the filing of the negotiation request. The Commission will not approve the arbitration award at this juncture. Under 47 U.S.C. § 252(e), the Commission will have before it the arbitrator's award when it is called upon to review the agreement. At that time, it will determine whether the award complied with prerequisites in the federal Act and is consistent with state law, state regulations, and state standards.

26 Del. Admin. Code § 4000-4.0