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TW Cable and Star Telephone Interconnection Arbitration Procedures

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Released: January 27, 2014

PUBLIC NOTICE

Federal Communications Commission
445 12th St., S.W.

News Media Information 202 / 418-0500

Internet: http://www.fcc.gov

Washington, D.C. 20554

TTY: 1-888-835-5322

DA 14-87


Released: January 27, 2014

PROCEDURES ESTABLISHED FOR ARBITRATION OF AN INTERCONNECTION

AGREEMENT BETWEEN TIME WARNER CABLE INFORMATION SERVICES AND STAR

TELEPHONE MEMBERSHIP CORPORATION

WC Docket No. 13-204

On November 1, 2013, the Wireline Competition Bureau (Bureau) released an order preempting
the jurisdiction of the North Carolina Rural Electrification Authority with respect to the arbitration of an
interconnection agreement between Time Warner Cable Inc.’s (TWC’s) telecommunications carrier
subsidiary, Time Warner Cable Information Services (North Carolina), LLC (TWCIS), and Star
Telephone Membership Corporation (Star), an incumbent local exchange carrier (TWC Preemption
Order
).1 The TWC Preemption Order was issued pursuant to section 252(e)(5) of the Communications
Act of 1934, as amended (Act).2 In this Public Notice, we establish procedures and a pleading schedule
for this proceeding, pursuant to authority delegated to the Chief of the Bureau.3
In the TWC Preemption Order, the Bureau directed TWCIS to contact the Bureau to schedule a
joint pre-filing conference.4 The order further directed the parties to refer to the procedures that had been
established for the Commission’s previous arbitrations.5 Finally, the Bureau indicated that it would issue
a public notice establishing procedures and a pleading schedule specific to the arbitration proceeding once
the pre-filing conference had been held.6 An initial joint pre-filing conference was held on November 25,
2013, wherein the parties indicated they were continuing to negotiate and thus limit the number of issues
required to be arbitrated. The Bureau directed the parties to provide updates on the status of their
discussions.


1 See Petition of Time Warner Cable Inc. Pursuant to Section 252(e)(5) of the Communications Act for Preemption
of the Jurisdiction of the North Carolina Rural Electrification Authority Regarding Arbitration of an
Interconnection Agreement with Star Telephone Membership Corporation
, WC Docket No. 13-204, Memorandum
Opinion and Order, 28 FCC Rcd 15086 (2013) (TWC Preemption Order).
2 47 U.S.C. § 252(e)(5).
3 See Procedures for Arbitrations Conducted Pursuant to Section 252(e)(5) of the Communications Act of 1934, as
amended
, Order, 16 FCC Rcd 6231 (2001) (Arbitration Procedures Order); see also 47 C.F.R. §§ 51.805, 51.807.
The Commission delegated to the Chief of the Common Carrier Bureau (now the Wireline Competition Bureau)
authority to serve as the Arbitrator in section 252(e)(5) arbitration proceedings, with the assistance of the staff of the
Wireline Competition and Enforcement Bureaus. As used in this Public Notice, the term “Arbitrator” refers to the
Chief of the Wireline Competition Bureau and/or authorized staff of the Wireline Competition and Enforcement
Bureaus.
4 See TWC Preemption Order, 28 FCC Rcd at 15098, para. 26.
5 See id. at 15098 n.103.
6 See id. at 15098, para. 26.

A.

Commencement of the Arbitration

1. Petition for Arbitration. The parties have indicated that they are continuing to negotiate outstanding
issues and that TWC intends to file a Petition for Arbitration on or before January 27, 2014.7 For
purposes of the Commission’s resolution of the issues, the date on which a Petition for Arbitration is filed
with the Commission shall be deemed to be the 135th day after which Star received the request to
negotiate.8 The Petitioner must serve a copy of its Petition on the Respondent not later than the day on
which the Commission receives the Petition. A Petition for Arbitration shall include a Request for
Arbitration and a Statement of Relevant Authority, as described below. Failure to comply with these
requirements may result in dismissal of the Petition for Arbitration.
1.1.
The Request for Arbitration shall include:
a) The name, address, telephone number, fax number, and e-mail address of each party to the
negotiations and of each party’s designated representative in the proceeding;
b) A description of the parties’ efforts to resolve their differences through negotiation;
c) A list of every unresolved issue, categorized by subject matter, and the position of each of the
parties on each issue (Statement of Unresolved Issues);
d) A list of the issues that have been resolved by the parties;
e) The most current version of the interconnection agreement being negotiated by the parties, if
any, containing both the agreed upon language and the disputed language each party
proposes;
f) A copy of the interconnection agreement, if any, under which the parties are currently
operating;
g) A copy of all pleadings in the arbitration proceeding before the state commission and any
letters, orders, or rulings of the state commission in that proceeding;
h) A list identifying each person with knowledge upon whom the Petitioner intends to rely to
support its position on each of the unresolved issues; and
i) Copies of all cost models, cost studies, and other studies on which the Petitioner intends to
rely to support its position and any documentation underlying those cost models, cost studies,
and other studies. Computerized cost models must be submitted in a form that allows the
Arbitrator and the parties to alter inputs and determine the effect on cost estimates.
1.2. The Statement of Relevant Authority shall be organized on an issue-by-issue basis, in the same


7 Letter from Matthew A. Brill, Counsel to Time Warner Cable Inc., to Marlene H. Dortch, Secretary, Federal
Communications Commission, WC Docket No. 13-204, at 1-2 (filed Dec. 20, 2013).
8 Although the Commission is not bound by the deadlines imposed by section 252 upon the state commissions, the
Bureau will attempt to release the arbitration award not later than nine months after the date on which Star is
deemed to have received the request to negotiate. See Arbitration Procedures Order, 16 FCC Rcd at 6233-34,
paras. 11-13.
2

manner as the Statement of Unresolved Issues, and shall:
a) Identify any proceeding pending before the state commission or this Commission relating to
the disputed issues; and
b) Discuss all federal and state statutory, judicial, and regulatory authority (including contrary
authority) relating to the disputed issues.
2. Response. Within 25 days after service of the Petition for Arbitration, Respondent shall file with the
Commission and serve on each party to the proceeding a Response, which shall include a Response to the
Statement of Unresolved Issues, Respondent’s Statement of Additional Unresolved Issues, and a
Statement of Relevant Authority.
2.1. The Response to the Statement of Unresolved Issues shall include:
a) The Respondent’s position as to each unresolved issue identified by the Petitioner;
b) A list identifying each person with knowledge upon whom the Respondent intends to rely to
support its position on each of the unresolved issues; and
c) Copies of all cost models, cost studies, and other studies on which the Respondent intends to
rely to support its position and any documentation underlying those cost models, cost studies,
and other studies. Computerized cost models must be submitted in a form that allows the
Arbitrator and the parties to alter inputs and determine the effect on cost estimates.
2.2. The Respondent’s Statement of Additional Unresolved Issues shall list each unresolved issue
between the Petitioner and the Respondent for which arbitration is sought that is not identified in
the Petitioner’s Statement of Unresolved Issues and the position of each of the parties on each of
these issues. This portion of the response shall be organized on an issue-by issue basis and shall
contain the information specified in 1.1 and 1.2, above.
2.3. The Statement of Relevant Authority shall be organized on an issue-by-issue basis in the same
manner as the Response to the Statement of Unresolved Issues and the Respondent’s Statement
of Additional Unresolved Issues and, to the extent not provided by Petitioner, shall:
a) Identify any proceeding pending before the state commission or this Commission relating to
the disputed issues; and
b) Discuss all federal and state statutory, judicial, and regulatory authority (including contrary
authority) relating to the disputed issues.
3. Reply. The Arbitrator may request that the Petitioner file a reply to any unresolved issues identified
by the Respondent and establish a deadline for its submission.
4. Consideration of Issues. The Commission shall limit its consideration to the issues set forth in the
Petition and the Response.

B.

Status Conferences

1. Initial Status Conference. The parties shall appear for an initial status conference on a date set by
3

the Arbitrator. At this conference, the parties shall raise any challenges to the appropriateness for
arbitration of any issue listed in the Petition for Arbitration or Response. If such challenges are not raised
at this conference, they shall be deemed waived. The following matters also may be discussed:
a) Simplifying or narrowing the issues;
b) Obtaining admissions of fact or stipulations between the parties as to any or all of the matters in
controversy;
c) Settlement of some or all of the issues, by agreement of the parties;
d) Discovery procedures and schedule;
e) The schedule for the remainder of the case and the dates for any further status conferences; and
f) Such other matters that may aid in resolving the unresolved issues or issuing an arbitration award.
2. Subsequent Status Conferences. The Arbitrator may hold such other status conferences it deems
necessary.

C.

Discovery

1. Admissions. Assertions made in the Petition and not specifically denied in the Response shall be
deemed admitted for the purposes of this proceeding.
2. Discovery Methods. The parties may obtain discovery through document requests, interrogatories,
oral depositions, and requests for admissions. Discovery disputes will be resolved based on the written
pleadings, any sworn affidavits attached thereto, and materials, if any, provided for in camera inspection,
unless the Arbitrator deems that a discovery conference is necessary.
a)

Discovery Period.

The Arbitrator shall establish a time frame for the commencement and
completion of all discovery. All written discovery responses shall be served and all oral
depositions shall be completed by the discovery cut-off date established by the Arbitrator.
b)

Written Responses.

Responses to all written discovery requests shall be submitted to the
requesting party no later than fifteen days after the date on which the request was received.
c)

Document Requests.

The Arbitrator shall establish a deadline for the production of documents
requested in the course of discovery.
d)

Depositions.

The parties shall coordinate the scheduling of oral depositions in advance of taking
such depositions. No party shall seek to depose a witness without first providing written notice at
least five business days in advance.9 Depositions shall be taken at a time and place agreed upon
by the parties.
e)

Objections.

Objections to discovery requests shall be filed within three business days of receipt
of the request. The parties shall negotiate diligently and in good faith concerning any discovery
dispute prior to the filing of any objection. The objections shall include a statement that


9 All references are to calendar days unless otherwise specified.
4

negotiations were conducted diligently and in good faith. If necessary, the Arbitrator will
convene a discovery conference to resolve discovery disputes.

D.

Decision Point List

1. Submission of Joint Decision Point List. Prior to the arbitration hearing, the parties shall jointly file
a Decision Point List (DPL) in a format approved by the Arbitrator, by the time set by the Arbitrator. An
electronic copy of the DPL shall be provided to the Arbitrator. The DPL shall set forth, as to each
unresolved issue:
a) A summary of each party’s position;
b) A listing of all disputed issues of fact;
c) Relevant admissions or stipulations of fact; and
d) Each party’s proposed contract language.
2. Revision of Joint DPL. The parties shall file an updated DPL at a time established by the Arbitrator,
which shall include specific citation to the parties’ testimony and other evidentiary submissions relevant
to each unresolved issue.

E.

Evidentiary Submissions

1. Submissions. Unless the Arbitrator orders to the contrary, the Petitioner and Respondent are required
to file and serve the following by the dates established by the Arbitrator:
a)

Direct Testimony.

Each party shall file and serve on each other party all of the evidence it
intends to offer as part of its direct case, in the form of affidavits, with supporting documentation,
expert reports and exhibits. The evidence shall be organized on an issue-by-issue basis, in
accordance with the DPL. Each expert report shall include a complete statement of all opinions
to be expressed by the expert, the basis and reasons for each opinion, and all data or other
information considered by the witness in forming those opinions.
b)

Rebuttal Testimony.

Each party shall file and serve on each other party all of the evidence it
intends to offer as rebuttal to the other party’s direct testimony, in the form of affidavits, with
supporting documentation, expert reports and exhibits. Each expert report shall include a
complete statement of all opinions to be expressed by the expert, the basis and reasons for each
opinion, and all data or other information considered by the witness in forming those opinions.
c)

Witness and Exhibit Lists.

Each party shall file and serve on each other party a list of all
witnesses the party intends to call and exhibits the party intends to introduce during the hearing.
Expert witnesses shall be identified as such.
d)

Objections.

Each party shall file and serve on each other party objections to any affidavits,
exhibits, expert reports, or witnesses proposed by the other party, or file and serve a statement
that it has no such objections.
5

F.

Arbitration Hearing

1. Notice Regarding Arbitration Hearing. Any arbitration hearing conducted in these proceedings
shall not constitute a hearing within the meaning of section 554 of the Administrative Procedure Act.10 If
the Arbitrator determines that an arbitration hearing is required as to some or all of the issues, the
Arbitrator will notify the parties, in writing, regarding: (a) the date, time and place of the hearing; (b) the
length of the hearing; (c) the matters as to which the hearing is to relate; (d) the date of any pre-hearing
conference; (e) the dates any pre-hearing submissions are to be filed and served; and (f) any other
appropriate matters.
2. Allotment of Time for Presentation of Case. Before the arbitration hearing, the Arbitrator may
allot to each party a specific time within which the party may present evidence and make argument during
the hearing. The parties will be required to present all of their evidence and argument within the time
allotted.
3. Conduct of Arbitration Hearing. The arbitration hearing will be conducted by the Arbitrator. The
arbitration hearing shall be open to the public, except that all or a portion of the arbitration hearing may
be closed to protect a party’s confidential information. The parties shall arrange for the stenographic
transcription of the arbitration hearing by a court reporter authorized to swear in witnesses. The court
reporter shall provide the transcript and exhibits of the hearing to the Arbitrator at the same time the
transcript is provided to the parties. Absent an agreement to the contrary, the cost of the transcript shall
be shared equally between the parties to the arbitration hearing.
4. Presentation of Oral Testimony; Availability of Witnesses. The parties to the arbitration hearing
are entitled to be heard, to present evidence, and to cross-examine witnesses appearing at the arbitration
hearing. No party may introduce an exhibit (including expert reports) or call a witness unless the exhibit
or witness was identified in that party’s pre-hearing submission, except for good cause shown. Each
witness presenting direct testimony by affidavit, and all authors of expert reports included in the pre-
hearing submissions, shall be available for cross-examination by the other parties to the arbitration
hearing. The Arbitrator may order that certain witnesses not attend the arbitration hearing before having
testified.
5. Clarifying Questions. The Arbitrator may ask clarifying questions at any point during the arbitration
hearing and may direct a party or witness to provide additional information as needed to fully develop the
record.
6. Evidence. The Arbitrator may exclude evidence considered to be inadmissible, irrelevant, immaterial
or cumulative. The Arbitrator may be guided by the Federal Rules of Evidence in making such
determinations; strict conformity to such rules, however, is not required.

G.

Post-Hearing Materials

1. Post-Hearing Briefs. Each party shall file and serve, by a date determined by the Arbitrator, a post-
hearing brief, which shall explain, as to each issue set forth in the DPL, and with appropriate citations to
the record, why the Commission should adopt the position advocated by that party. The Arbitrator may
impose page limits with respect to such briefs.


10 5 U.S.C. § 554.
6

H.

General Provisions

1. Amendment of Procedures. The Arbitrator may change these procedures by written notice to
expedite the proceeding, preserve the resources of the Commission or the parties, promote settlement, or
for good cause shown.
2. Format of Pleadings.
a) The parties’ Statements of Unresolved Issues, Statements of Relevant Authority, and all briefs
shall contain a Table of Contents and, if applicable, a Table of Authorities.
b) Assertions in affidavits based upon information and belief are prohibited unless made in good
faith and the affiant explains the basis for the belief and why the facts could not reasonably be
ascertained.
3. Filing Procedures. By 7:00 p.m. on the day established as the deadline for the filing of any
submission pertaining to this proceeding, four copies shall be filed with the Secretary of the Commission,
eight copies shall be hand-delivered to the Arbitrator, and one copy shall be served on all other parties to
the proceeding (i) by hand, where such parties are located in Washington, D.C., or (ii) by overnight
delivery, where such parties are located outside of Washington, D.C. The Arbitrator also may require that
copies of submissions be served by e-mail to the service list.
4. Resolution of Unresolved Issues. Petitioner is obligated to inform the Arbitrator in writing as soon as
possible of the resolution by the parties of any unresolved issue identified in either party’s Statement of
Unresolved Issues or the DPL.
5. Failure to Respond. The Arbitrator may require the parties to provide such information as may be
necessary to reach a decision on the unresolved issues. If any party refuses or fails unreasonably to
respond on a timely basis to any reasonable request, then the Commission may proceed on the basis of the
best information available to it from whatever source derived.
6. Ex Parte Status; Confidentiality of Information. These proceedings are restricted for ex parte
purposes. Therefore, ex parte presentations are prohibited. Parties seeking to protect the confidentiality
of information produced or exchanged shall follow the procedures set forth in Commission rule 1.731,
substituting the phrase “this proceeding” for “formal complaint proceeding.”11
For further information regarding this proceeding, contact John Visclosky, Competition Policy
Division, Wireline Competition Bureau, at 202-418-0825.
- FCC -


11 47 C.F.R. § 1.731.
7

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