Interim Procedures for Negotiations, Mediation, Arbitration and Approval of Agreements
(Adopted on May 16, 1996 by letter order dated May 23, 1996)
1. Purpose of Procedures.
The purpose of these interim procedures is to timely implement 47 U.S.C. §252, created by the federal Telecommunications Act of 1996 (hereinafter referred to as "Act"), which establishes procedures to resolve disputes between carriers, namely through voluntary negotiations or, in the case of impasse, through state commission mediation and arbitration. This section of the Act also provides for state commission approval of voluntary agreements. Experience using these interim procedures in the near-term will assist the Commission in developing final administrative rules consistent with the Act and affected provisions of ch. 196, Stats.
2. Voluntary NegotiationsVoluntary Negotiations Defined: Negotiation is a process whereby representatives (negotiators) of the parties in dispute (disputants) communicate their differences to one another and with this knowledge try to resolve them. Successful negotiations produce voluntary agreement over terms and conditions regarding those items in dispute, which may even include methods for resolving disputes over the interpretation and application of terms and conditions under an existing agreement.
Initiation of Negotiation Notice to the Commission: A telecommunications carrier or carriers requesting voluntary negotiations under §252(a)(1) should simultaneously notify the Commission of its request of the incumbent local exchange carrier.
Duty to Negotiate in Good Faith (or Good Faith Bargaining): For the purpose of determining whether a telecommunications carrier has discharged its duty to negotiate in accordance with §251(c)(1), the Commission defines the duty to negotiate in good faith as the requirement or obligation of parties to meet and confer at reasonable times and places with minds open to persuasion and an eye toward reaching agreement over terms and conditions for interconnection, services, or network elements pursuant to §251. Good faith bargaining does not imply that either party is required to reach agreement on any proposal. Moreover, "good faith" is not necessarily incompatible with stubbornness or even with what an outsider may consider unreasonableness.
As an element in determining whether a telecommunications carrier has met the obligation of good faith bargaining imposed by §251(c)(1), the Commission may consider any party's refusal to give information about its costs or other pertinent data upon the request of the other party, so that the requesting party can substantiate the claims made
by the telecommunications carrier in negotiations. The Commission will adjudicate disputes over furnishing information upon complaint of any party to the negotiations under s. 196.37, Stats.
3. MediationMediation Defined: Mediation is a process in which a neutral party assists the disputants in reaching their own settlement but does not have the authority to make a binding decision.
Initiation of Mediation: Any party requesting mediation pursuant to 47 U.S.C. §252(a)(2) shall do so in writing to Commission. A copy of this mediation request to the Commission should be simultaneously served on the other party(ies) in the dispute. Alternatively, parties may jointly submit in writing their request for Commission mediation.
Docketing and Assessment of Costs: Requests for mediation will be generically docketed and costs will be directly and equally assessed to the parties involved in the negotiation.
Appointment of Mediator(s): The Commission, or its designee, may appoint its own staff or any competent, impartial, disinterested person of character and ability to act as mediator in any dispute for which mediation under the Act is available, upon the Commission's own initiative or upon the request of the parties to the dispute. If someone other than Commission staff is appointed as a mediator, the cost of mediation shall be shared equally by the parties.
Role and Duties of the Mediator(s): It is the function of the mediator(s) to encourage voluntary settlement by the parties. Mediator(s) may not compel a settlement. Mediator(s) shall schedule meetings of the parties, direct the parties to prepare for those meetings, hold private caucuses with each party in an attempt to bring disputants closer together, attempt to achieve a mediated resolution and, if the parties request, assist the parties in preparing a written agreement.
Confidentiality: All mediators shall keep confidential all information and records obtained in conducting mediation, provided parties have entered into proprietary agreements and, further agreed to hold in-camera proceedings, consistent with their obligations under 47 U.S.C. §702(b).
Mediators Acting as Arbitrators (med-arb): Mediator(s) may also be appointed by the Commission to act as arbitrators in the same dispute if no mediated resolution is reached. In so doing, the Commission can assign staff to serve as both mediator(s) and arbitrator(s) in a dispute. This form of dispute resolution is sometimes referred to as med-arb. It combines the voluntary techniques of persuasion and discussion, as in mediation, with an arbitrator's authority to issue a decision, when necessary.
4. ArbitrationArbitration Defined: Arbitration is the investigatory process whereby a dispute is submitted to one or more impartial persons (arbitrators) for decision (award), subject to Commission approval pursuant to §252(e)
Initiation of Arbitration: The Commission will not accept and therefore will return any petition for arbitration pursuant to §252(b)(1) that is untimely, or that does not fully comply with the filing requirements as set forth in §252(b)(2). A petition for arbitration shall state whether a hearing is necessary as part of the arbitration, and shall include any request for orders for production of information (see "Discovery" section below).
Docketing and Assessment of Costs: Petitions for arbitration will be generically docketed and costs will be directly and equally assessed to the parties involved in arbitration.
Appointment of Arbitration Panel: Upon receipt of a timely and complete petition for arbitration, the Commission, or its designee, shall appoint a chair and other members of its own staff, with or without the advice of the parties, to serve on an arbitration panel. The size and composition of this ad hoc arbitration panel shall be appropriate to the nature of the instant dispute.
Arbitrators Acting as Mediators (med-arb): The arbitration panel may request the parties to mediate prior to initiating the arbitration process if impasse has not been reached. The parties are under no obligation to participate in mediation as part of the arbitration process. If impasse is reached, or after a reasonable period of unsuccessful meditation, arbitration should proceed expeditiously.
Voluntary Agreement After the Initiation of Arbitration: If the parties reach voluntary agreement, with or without mediation, after the initiation of arbitration, the arbitration panel will issue a consent award. Consent awards will be submitted to the Commission for 30-day approval or rejection like any other arbitration award. Alternatively, the parties may jointly submit their voluntary agreement to the Commission for 90-day approval or rejection, along with a joint petition to dismiss the arbitration petition.
Role and Duties of the Arbitration Panel: It is the function of the arbitration panel to decide the issues in dispute in accordance with these procedures if the parties cannot reach voluntary agreement.
Procedural Arbitrability: Disputes over whether an issue is properly subject to the arbitration process shall be decided by the arbitration panel before hearing evidence on the merits of the dispute. The arbitration panel should presume arbitrability unless a clear and convincing case is made to the contrary by the non-petitioning party challenging procedural arbitrability. A non-petitioning party to the negotiation will be deemed to have waived its right to challenge procedural arbitrability if it fails do so when responding to the petition pursuant to §252(b)(3).
Confidentiality: All arbitrators shall keep confidential all information and records obtained in conducting mediation, provided parties have entered into proprietary agreements and, further agreed to hold in-camera proceedings, consistent with their obligations under §702(b).
Fact Gathering Procedures: In accordance with §252(b)(4)(B), which requires parties to provide such information as may be necessary to reach a decision on the unresolved issues, each arbitration panel shall investigate and gather factual information and secure relevant argument according to the following procedures:
Application of Procedures. The arbitration panel should apply these hearing procedures in a manner appropriate for the issues presented, with a view to fair, expeditious and economical conduct of the arbitration.
Parties. Only parties to the negotiations will be permitted to participate as parties to the arbitration, unless the Commission consolidates proceedings pursuant to §252(g). Commission staff participation is limited to those staff members serving on the arbitration panel, except that the arbitration panel may in a hearing call other staff members as witnesses within the scope of 47 U.S.C. §262(b)(4)(B).
Issue Determination. If, after the submission of the petition and any response, the issues remain uncertain, or the parties have been unable to stipulate as to a statement of issues, the arbitration panel will determine the statement of disputed issues as part of its written award.
Factual stipulations. Whenever possible, parties should enter into factual stipulations to expedite the arbitration. If there are no material factual disputes, the arbitration panel may decide the disputed issues without hearing by relying on written material submitted by the parties. If a hearing is conducted, factual stipulations should be made a part of record of the hearing.
Discovery. No party-to-party discovery is permitted; however, any party to the proceeding may request the arbitration panel to order the other party, pursuant to §252(b)(4)(B), to produce certain information for the record. The arbitration panel may alter, amend, or supplement the information request as it deems appropriate. Such requests should be made in the petitioning process for arbitration (§252(b)(2)(A)).
Hearing. The arbitration panel shall attend the arbitration hearing, if held. The chair of the arbitration panel will preside over the hearing.
Notice of Hearing. The arbitration panel will set the time and place of the arbitration hearing upon at least 10-day written notice to the parties. This notice will be signed by the chair of the arbitration panel.
Issue Determination. Each party shall be directed to submit an issues statement at the beginning of the arbitration hearing. If parties cannot agree upon an issues statement, the arbitration panel will decide how to frame the issues as part of its written award.
Order of Presentation. The petitioning party will usually present its case first followed by the non-petitioning party, unless otherwise determined by the arbitration panel.
Opening Statement. Each party will be given an opportunity to make an opening statement. Any party may waive the opportunity to make an opening statement.
Rules of evidence. The arbitration panel should generally follow the rules of evidence used in Commission proceedings, but need not strictly apply those rules.
Record evidence. Testimony and exhibits or position papers will be prefiled, as directed by, and in accordance with a schedule established and noticed by the arbitration panel. The arbitration panel may limit the amount of evidence presented by the parties.
Transcripts. No written transcripts will be prepared. The arbitration panel will make a tape (audio or video) of the arbitration hearing for its own use. Provided that it does not violate any applicable Commission agreement for contract reporting service, a party is permitted to elect stenographic reporting at its own expense, but a free copy must be made available to the Commission, and a copy to any other party to the proceeding requesting same for the customary copy charge.
Witnesses. The arbitration panel may issue subpoenas for witnesses and may call members of the Commission staff as witnesses. Witnesses will be sworn to tell the truth before giving testimony. Witnesses may be cross-examined on their testimony. The arbitration panel may limit the number of witnesses offering testimony on behalf of any party.
Participation of arbitrators in the hearing. Members of arbitrator panel may ask witnesses questions. The arbitration panel may also require parties to provide and submit information for the record pursuant to §252(b)(4)(B).
Argument. An opportunity for oral argument will be afforded to each party in lieu of post-hearing written briefs. Any party may waive its opportunity to make oral argument. Following oral argument, the record in the arbitration proceeding will be closed. At the sole discretion of the arbitration panel, written briefs may be substituted for oral argument.
Ex parte communications. Although arbitration under the Act is not considered a Class I proceeding under the Wisconsin statutes, rules under s. 227.50, Stats., governing ex parte communications will apply in these arbitration procedures as if an arbitration were a Class I proceeding. This provision will also apply through the Commission approval process.
Written award. The arbitration panel will timely make its decision by applying the record evidence to the standards for arbitration set forth in the Act by making a written arbitration award. It must be signed by at least a majority of the arbitration panel. The written arbitration award will be served on the Commission for its approval or rejection, the parties, and anyone on the Commission's standing mailing list for such awards. The time period for Commission approval shall be measured from the date of mailing.
5. Commission Approval of Agreements.
The Commission will consider receipt of an arbitration award by the arbitration panel as a submission of an agreement for Commission approval pursuant to §252(e)(1).
For the purpose of implementing §252(e) of the Act, amendments, addenda, memoranda of agreement, letters of understanding and other written documents which materially add, delete or modify provisions of an existing agreement should be submitted to the Commission for its approval under these procedures.
Within 10 days following the issuance (mailing) of the arbitration award or submission of a voluntary agreement for Commission approval or rejection pursuant to 47 U.S.C. §252(e), the parties involved in the negotiations or arbitration, and any other interested party, may submit written comments to the Commission supporting either approval or rejection of the agreement.
The Commission will record its action in its minutes and direct that a letter be promptly mailed to the parties advising as to approval or rejection of the agreement. A statement of any deficiencies, as required by the Act, shall accompany any rejection.
If the Commission rejects a voluntary agreement or arbitration award pursuant to 47 U.S.C. §252(e), the parties may resubmit the agreement for Commission approval within 30 days following such rejection, if the parties have remedied the deficiencies set forth in the Commission's findings.
6. Disputes under an Existing Agreement.
To the extent the parties have not made provision for resolving disputes arising under the terms of an existing agreement, such disputes over interpretation and application of existing agreements may be submitted to the Commission for arbitration under these procedures.
7.Alternative Mediation and Arbitration Procedures.
Notwithstanding any provision in these procedures, parties may propose, and the Commission may approve, alternative mediation and arbitration procedures.
8. Amendment of Procedures.
The Commission may amend these procedures, as necessary upon due notice, to effect the purposes of the Telecommunications Act of 1996 and provisions of Chapters 196 and 227, Stats., as appropriate.