1.730—The Enforcement Bureau's Accelerated Docket.
(a)
Parties to formal complaint proceedings against common carriers within the responsibility of the Enforcement Bureau (see §§ 0.111, 0.311, 0.314 of this chapter) may request inclusion on the Bureau's Accelerated Docket. As set out in §§ 1.720 through 1.736, proceedings on the Accelerated Docket are subject to shorter pleading deadlines and certain other procedural rules that do not apply to other formal complaint proceedings before the Enforcement Bureau.
(b)
Any party that contemplates filing a formal complaint may submit a request to the Chief of the Enforcement Bureau's Market Disputes Resolution Division, either by phone or in writing, seeking inclusion of its complaint, once filed, on the Accelerated Docket. In appropriate cases, Commission staff shall schedule and supervise pre-filing settlement negotiations between the parties to the dispute. If the parties do not resolve their dispute and the matter is accepted for handling on the Accelerated Docket, the complainant shall file its complaint with a letter stating that it has gained admission to the Accelerated Docket. When it files its complaint, such a complainant shall also serve a copy of its complaint on the Commission staff that supervised the pre-filing settlement discussions.
(c)
Within five days of receiving service of a complaint, any defendant in a formal complaint proceeding may submit by facsimile or hand delivery, to the Chief of the Enforcement Bureau's Market Disputes Resolution Division, a request seeking inclusion of its proceeding on the Accelerated Docket. Such a defendant contemporaneously shall transmit, in the same manner, a copy of its request to all parties to the proceeding. A defendant submitting such a request shall file and serve its answer in compliance with the requirements of § 1.724(k), except that the defendant shall not be required to serve with its answer the automatic document production required by §§ 1.724(k)(7) and 1.729(i)(1). In proceedings accepted onto the Accelerated Docket at a defendant's request, the Commission staff will conduct supervised settlement discussions as appropriate. After accepting such a proceeding onto the Accelerated Docket, Commission staff will establish a schedule for the remainder of the proceeding, including the parties' § 1.729(i)(1) automatic production of documents.
(d)
During the thirty days following the effective date of these rules, any party to a pending formal complaint proceeding in which an answer has been filed or is past due may seek admission of the proceeding to the Accelerated Docket by submitting a request by facsimile or hand delivery to the Chief of the Enforcement Bureau's Market Disputes Resolution Division, with facsimile copies to all other parties to the proceeding by the same mode of transmission. If a pending proceeding is accepted onto the Accelerated Docket, Commission staff will conduct supervised settlement discussions if appropriate and establish a schedule for the remainder of the proceeding, including the parties' § 1.729(i)(1) automatic production of documents if necessary.
(e)
In determining whether to admit a proceeding onto the Accelerated Docket, Commission staff may consider factors from the following, non-exclusive list:
(1)
Whether it appears that the parties to the dispute have exhausted the reasonable opportunities for settlement during the staff-supervised settlement discussions.
(2)
Whether the expedited resolution of a particular dispute or category of disputes appears likely to advance competition in the telecommunications market.
(3)
Whether the issues in the proceeding appear suited for decision under the constraints of the Accelerated Docket. This factor may entail, inter alia, examination of the number of distinct issues raised in a proceeding, the likely complexity of the necessary discovery, and whether the complainant bifurcates any damages claims for decision in a separate proceeding. See § 1.722(b).
(4)
Whether the complainant states a claim for violation of the Act, or Commission rule or order that falls within the Commission's jurisdiction.
(5)
Whether it appears that inclusion of a proceeding on the Accelerated Docket would be unfair to one party because of an overwhelming disparity in the parties' resources.
(6)
Such other factors as the Commission staff, within its substantial discretion, may deem appropriate and conducive to the prompt and fair adjudication of complaint proceedings.
(f)
If it appears at any time that a proceeding on the Accelerated Docket is no longer appropriate for such treatment, Commission staff may remove the matter from the Accelerated Docket either on its own motion or at the request of any party.
(1)
In Accelerated Docket proceedings, the Commission may conduct a minitrial, or hearing-type proceeding, as an alternative to requiring that parties submit briefs in support of their cases. Minitrials typically will take place between 40 and 45 days after the filing of the complaint. A Commission Administrative Law Judge (“ALJ”) typically will preside at the minitrial, administer oaths to witnesses, and time the parties' presentation of their cases. In consultation with the Commission staff, the ALJ will rule on objections or procedural issues that may arise during the course of the minitrial.
(2)
Before a minitrial, each party will receive a specific time allotment in which it may present evidence and make argument during the minitrial. The ALJ or other Commission staff presiding at the minitrial will deduct from each party's time allotment any time that the party spends presenting either evidence or argument during the proceeding. The presiding official shall have broad discretion in determining any time penalty or deduction for a party who appears to be intentionally delaying either the proceeding or the presentation of another party's case. Within the limits imposed by its time allotment, a party may present evidence and argument in whatever manner or format it chooses, provided, however, that the submission of written testimony shall not be permitted.
(3)
Three days before a minitrial, each party to a proceeding shall serve on all other parties a copy of all exhibits that the party intends to introduce during the minitrial and a list of all witnesses, including expert witnesses, that the party may call during the minitrial. Service of this material shall be accomplished either by hand or by facsimile transmission. Objections to any exhibits or proposed witness testimony will be heard before the beginning of the minitrial.
(4)
No party will be permitted to call as a witness in a minitrial, or otherwise offer evidence from, an individual in that party's employ, unless the individual appears on the party's information designation (see §§ 1.721(a)(10)(i) or 1.724(f)(1)) with a general description of the issues on which she will offer evidence. No party will be permitted to present expert evidence unless the party has complied fully with the expert-disclosure requirements of § 1.729(i)(4). The Commission may permit exceptions to the rules in this paragraph (g)(4) for good cause shown.
(5)
Two days before the beginning of the minitrial, parties shall file proposed findings of fact and conclusions of law. These submissions shall not exceed 40 pages per party. Within three days after the conclusion of the minitrial, parties may submit revised proposed findings of fact and conclusions of law to meet evidence introduced or arguments raised at the minitrial. These submissions shall not exceed 20 pages per party.
(6)
The parties shall arrange for the stenographic transcription of minitrial proceedings so that transcripts are available and filed with the Commission no more than three days after the conclusion of the minitrial. Absent an agreement to the contrary, the cost of the transcript shall be shared equally between the parties to the proceeding.
(h)
Applications for review of staff decisions issued on delegated authority in Accelerated Docket proceedings shall comply with the filing and service requirements in § 1.115(e)(4). In those Accelerated Docket proceedings which raise issues that may not be decided on delegated authority (see 47 U.S.C. 155(c)(1); 47 CFR 0.291(d) ), the staff decision issued after the minitrial will be a recommended decision subject to adoption or modification by the Commission. Any party to the proceeding that seeks modification of the recommended decision may do so by filing comments challenging the decision within 15 days of its release by the Commission's Office of Media Relations. (Compare § 1.4(b)(2).) Opposition comments may be filed within 15 days of the comments challenging the decision; reply comments may be filed 10 days thereafter and shall be limited to issues raised in the opposition comments.
(i)
If no party files comments challenging the recommended decision, the Commission will issue its decision adopting or modifying the recommended decision within 45 days of its release. If parties to the proceeding file comments to the recommended decision, the Commission will issue its decision adopting or modifying the recommended decision within 30 days of the filing of the final comments.
[63 FR 41448, Aug. 4, 1998, as amended at 64 FR 60725, Nov. 8, 1999]