OAR 860-016-0050: Petitions for Enforcement of Interconnection Agreements

(1) This rule specifies the procedure for a telecommunications provider, as defined in OAR 860-032-0001, to file a complaint for the enforcement of an interconnection agreement executed pursuant to the Telecommunications Act of 1996 (the Act). This includes interconnection agreements, resale agreements, agreements for the purchase or lease of unbundled network elements (UNEs), or statements of generally available terms and conditions (SGATs), whether those agreements were entered into through negotiation, mediation, arbitration, or adoption of a prior agreement or portions of prior agreements. Section (13) of this rule specifies procedures for complaints alleging that telecommunications utilities have engaged in prohibited acts under ORS 759.455. (2) At least 10 days prior to filing a complaint for enforcement, complainant must give written notice to defendant and the Commission that complainant intends to file a complaint for enforcement. The notice must identify the provisions in the agreement that complainant alleges were or are being violated and the specific acts or failure to act that caused or are causing the violation, and whether complainant anticipates requesting temporary or injunctive relief. On the same day the notice is filed with the Commission, complainant must serve a copy of the notice on defendant’s authorized representative, attorney of record, or designated agent for service of process. Complainant must also serve the notice on all persons designated in the interconnection agreement to receive notices; (3) A complaint for enforcement of an interconnection agreement must: (a) Contain a statement of specific facts demonstrating that the complainant conferred with defendant in good faith to resolve the dispute, and that despite those efforts the parties failed to resolve the dispute; (b) Include a copy of the written notice, required by section (2), indicating that the complainant intends to file a complaint for enforcement; (c) Include a copy of the interconnection agreement or the portion of the interconnection agreement that the complainant contends was or is being violated. If a copy of the entire interconnection agreement is provided, complainant must specify provisions at issue. If the interconnection agreement adopted a prior agreement or portions of prior agreements, the complaint must also indicate the provisions adopted in those agreements; (d) Contain a statement of the facts or law demonstrating defendant's failure to comply with the agreement and complainant's entitlement to relief. The statement must indicate that the remedy sought is consistent with the dispute resolution provisions in the agreement, if any. Statements of facts must be supported by written testimony with affidavits, made by persons competent to testify and having personal knowledge of the relevant facts. Statements of law must be supported by appropriate citations. If exhibits are attached to the affidavits, the affidavits must contain the foundation for the exhibits; (e) Designate up to three persons to receive copies of other pleadings and documents; (f) Include any motions for affirmative relief, filed as a separate document and clearly marked. Nothing in this subsection precludes complainant from filing a motion subsequent to the filing of the complaint if the motion is based upon facts or circumstances unknown or unavailable to complainant at the time the complaint was filed; and (g) Include an executive summary, filed as a separate document not to exceed 8 pages, outlining the issues and relief requested. (4) On the same day the complaint is filed with the Commission, complainant must serve a copy of the complaint on defendant’s authorized representative, attorney of record, or designated agent for service of process. Service may be by electronic mail, fax, or overnight mail, but the complaint must arrive at defendant's location on the same day the complaint is filed with the Commission. Service by electronic mail or fax must be followed by a physical copy the next day by overnight delivery. (5) Within 10 business days after service of the complaint, defendant may file an answer with the Commission. Any allegations raised in the complaint and not addressed in the answer are deemed admitted. The answer must: (a) Contain a statement of specific facts demonstrating that the defendant conferred with complainant in good faith to resolve the dispute, and that despite those efforts the parties failed to resolve the dispute; (b) Respond to each allegation set forth in the complaint and set forth all affirmative defenses; (c) Contain a statement of the facts or law supporting defendant's position. Statements of facts must be supported by written testimony or one or more affidavits, made by persons competent to testify and having personal knowledge of the relevant facts. Statements of law must be supported by appropriate citations. If exhibits are attached to the affidavits, the affidavits must contain the foundation for the exhibits; and (d) Designate up to three persons to receive copies of other pleadings and documents; (6) On the same day as the answer is filed, the defendant must also file its response to any motion filed by complainant and its motions for affirmative relief. Each response and each motion must be filed as a separate filing. Nothing in this section precludes defendant from filing a motion subsequent to the filing of the answer if the motion is based upon facts or circumstances unknown or unavailable to defendant at the time the answer was filed. (7) On the same day the answer is filed with the Commission, defendant must serve a copy of the answer to the complainant’s authorized representative, attorney of record, or designated agent for service of process. (8) Complainant must file a reply to an answer that contains affirmative defenses within 5 business days after the answer is filed. On the same day the reply is filed with the Commission, complainant must serve a copy of the reply to defendant’s authorized representative, attorney of record, or designated agent for service of process. (9) A cross-complaint or counterclaim must be answered within the 10-business day time frame allowed for answers to complaints. (10) The Commission will conduct a conference regarding each complaint for enforcement of an interconnection agreement. (a) The Administrative Law Judge (ALJ) will schedule a conference within 5 business days after the answer is filed, to be held as soon as practicable. At the discretion of the ALJ, the conference may be conducted by telephone; (b) Based on the complaint and the answer, all supporting documents filed by the parties, and the parties' oral statements at the conference, the ALJ will determine whether the issues raised in the complaint can be determined on the pleadings and submissions without further proceedings or whether further proceedings are necessary. If further proceedings are necessary, the ALJ will establish a procedural schedule. The procedural schedule may include a mandatory mediation session. Either party may request that a person other than the ALJ preside over the mediation. Nothing in this subsection is intended to prohibit the bifurcation of issues where appropriate; (c) In determining whether further proceedings are necessary, the ALJ will consider, but is not limited to, the positions of the parties; the need to clarify evidence through the examination of witnesses; the complexity of the issues; the need for prompt resolution; and the completeness of the information presented; (d) The ALJ may make oral rulings on the record during the conference on all matters relevant to the conduct of the proceeding. (11) A party may file with the complaint or answer a request for discovery, stating the matters to be inquired into and their relationship to matters directly at issue. (12) When warranted by the facts, the complainant or defendant may file a motion requesting that an expedited procedure be used. The moving party must file a proposed expedited procedural schedule along with its motion. The ALJ will schedule a conference to be held as soon as practicable, to determine whether an expedited schedule is warranted. (a) The ALJ will consider whether the issues raised in the complaint or answer involve a risk of imminent, irrevocable harm to a telecommunications provider and to the public interest; (b) If a determination is made that an expedited procedure is warranted, the ALJ will establish a procedure that ensures a prompt resolution of the merits of the dispute, consistent with due process and other relevant considerations. The ALJ will consider, but is not bound by, the moving party's proposed expedited procedural schedule; (c) An expedited procedure may be appropriate if the complainant shows that its ability to provide telecommunications services will be substantially harmed unless the Commission acts promptly. In general, the Commission will not entertain a motion for expedited procedure where the dispute solely involves the payment of money. (13) Procedures for complaints alleging violation of ORS 759.455. (a) An answer under section (5) of this rule must be filed with the Commission and served on the complainant within 10 calendar days after service of the complaint; (b) A reply under section (8) of this rule must be filed with the Commission and served on the defendant within 5 calendar days after the answer is filed; (c) The ALJ will schedule a conference to be held not later than 15 calendar days after the complaint is filed; (d) A hearing will begin no later than 30 days after the complaint is filed; (e) The ALJ may consult with the Commission Staff in the manner set forth in OAR 860-016-0030(6).