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&P# ĐTT TPx` `  hh@hpp    S-In the Matter of  hh@) x` `  hh@)  Sb-Implementation of the  hh@)  S: -Telecommunications Act of 1996hh@)  S -x` `  hh@)hCC Docket No. 96238  S -Amendment of Rules Governing hhX@)(#  S -Procedures to Be Followed When hhX@)h(#  S -Formal Complaints Are Filed Against hh@)(#h  Sr -Common Carriers XXhh@)(#h  S-" REPORT AND ORDER ă  S-Adopted:` ` November 25, 1997hh@hReleased:November 25, 1997 By the Commission:  S-  TABLE OF CONTENTS ĐTP  Sj-Subject`> (#(Paragraphă  S-I.xIntroductionp"(#R1  S-II.xBackgroundp"(#R7  S-xA.` ` Statutory Framework for Complaints Against Common Carriers(#` p"(#R7  Sz-XxB.X` ` Complaint Provisions Amended and Added by the 1996 Act(#` p"(#R9  S*-III.xAmendments to Rules of Practice and Procedurepp"(#L20  S -XxA.` ` Overview(#pp"(#L20  S -XxB.X` ` Applicability of the Rules(#` pp"(#L25  S!-x` ` 1. Uniform Application of the Rulespp"(#L25  S"-XxX` ` 2.X Applicability of the Section 208(b)(1) Deadline(# pp"(#L32  Sb#-xC.` ` Prefiling Procedures and Activitiespp"(#L38  S:$-XxX` ` 1.X Certification of Settlement Attempts(# pp"(#L39  S%-XxX` ` 2.X Neutral Industry Committee(# pp"(#L43  S%-XxX` ` 3.X Additional Commenters' Suggestions(# pp"(#L46  S&-XxD.X` ` Service(#` pp"(#L49  S'-XxX` ` 1.X Personal Service of Formal Complaints on Defendants(# pp"(#L50  Sr(-XxX` ` 2.X Expediting Service Generally(# pp"(#L59"r(,))ZZ)"Ԍ S-xE.` ` Format and Content Requirementspp"(#L69  S-XxX` ` 1.X Support and Documentation of Pleadings(# pp"(#L72  S-XxX` ` 2.X Waivers for Good Cause Shown(# pp"(#L93  S-xF.` ` Answerspp"(#L98  S`-XxX` ` 1.X Reduction of Time to File Answers(# pp"(#L98  S8-xG.` ` Discoveryp"(#F101  S-XxX` ` 1.X Permissible Requests for Discovery(# p"(#F102  S-XxX` ` 2.X Reduction of Administrative Burden of Filing Documents(# p"(#F126  S-XxX` ` 3.X Voluntary Agreements for the Recovery of Discovery Costs(# p"(#F130  S-XxX` ` 4.X Referral of Factual Disputes to Administrative Law Judges(# p"(#F133  Sp-xH.` ` Status Conferencesp"(#F139  SH -XxX` ` 1.X The Initial Status Conference(# p"(#F140  S -XxX` ` 2.X Status Conference Rulings(# p"(#F146  S -xI. ` ` Cease Orders, CeaseandDesist Orders and Other Forms of Interim Reliefp"(#F153  S -  pXxX` ` 1.X Cease and Cease and Desist Orders Under Title II of the Act and Other Forms of Interim Relief (# p"(#F154  S -XxX` ` 2.X Legal and Evidentiary Standards (# p"(#F161  SX-xJ.` ` Damagesp"(#F171  S0-XxX` ` 1.X Bifurcation by the Commission and the Supplemental Complaint (# XxX` ` X Process(# p"(#F171  S-XxX` ` 2. Detailed Computation of Damages(#` p"(#F187  S- pXxX` ` 3.X Ending Adjudication with a Determination of the Sufficiency of a Damages Calculation Method(# p"(#F192  Sh-XxX` ` 4.X Settlement Period(# p"(#F196  S@-XxX` ` 5.X Referral of Damages Issues(# p"(#F200  S-XxX` ` 6.X Deposit of Funds into an Escrow Account(# p"(#F203  S-XxX` ` 7.X Additional Suggestions from Commenters(# p"(#F209  S-xK.` ` CrossComplaints and Counterclaimsp"(#F214  S-xL.` ` Repliesp"(#F220  Sx-XxM.X` ` Motions(#` p"(#F225  SP-XxX` ` 1.X The Filing of Motions(# p"(#F226  S(-XxX` ` 2.X Oppositions to Motions(# p"(#F230  S-XxX` ` 3.X Format, Content, and Specifications of Motions and Orders(# p"(#F235  S-XxX` ` 4.X Amendments to Complaints(# p"(#F241  S-XxX` ` 5.X Additional Suggestions from Commenters(# p"(#F244  S-xN.` ` Confidential or Proprietary Information and Materialsp"(#F251  S`-XxO.X` ` Other Required Submissions(#` p"(#F256  S8-XxX` ` 1.X Joint Statement of Stipulated Facts(# p"(#F256  S -XxX` ` 2.X Briefs(# p"(#F261  S -XxX` ` 3.X Commenters' Additional Suggestions(# p"(#F272  S!-XxP.` ` Sanctions(#p"(#F275  S"-xQ. ` ` Other Mattersp"(#F279  Sp#-XxX` ` 1.X Section 271(# p"(#F280  SH$-XxX` ` 2.X Sections 260, 274, and 275 of the Act(# p"(#F285  S %-XxX` ` X a.XPrima Facie Claim(#p"(#F286" %,-(-(ZZ&"Ԍ S-`XxX` ` X b.XShifting the Burden of Proof to Defendant Carriers in (# x` `  Complaints Alleging Violations of Sections 260, x` `  274, and 275 of the Actp"(#F291 `  S`-IV.XxConclusion(#p"(#F298  S-V.xProcedural Mattersp"(#F299  S-XxA.` ` Petitions for Reconsideration and Ex Parte Presentations (#p"(#F299  S-XxB.` ` Paperwork Reduction Act Analysis(#p"(#F302  S-XxC.X` ` Final Regulatory Flexibility Analysis(#` p"(#F303  SJ -VI.XxOrdering Clauses(#p"(#F342  S -VII.xAppendices  S -xA.` ` Rules Adopted by This Report and Order  S -xB.` ` Formal Complaint Intake Form  S -xC.` ` List of Parties Filing Comments  S\-XxD.` ` List of Parties Filing Replies(#  S - I. INTRODUCTION ׃  S- ` 2x1.` ` In February 1996, Congress passed and the President signed the Telecommunications Act  S- x0of 1996 ("1996 Act").[&{ {O-  ԍXxTelecommunications Act of 1996, Pub. L. No. 104104, 110 Stat. 56 codified at 47 U.S.C.  151 et seq.  {O-  (1996). Where appropriate, we will cite to the 1996 Act throughout this Report and Order as it is codified   in the U.S. Code. The Communications Act of 1934, as amended, including the 1996 Act amendments,  {OX-codified at 47 U.S.C.  151 et seq., is referred to herein as the "Act."(#[ One of the main goals of the 1996 Act is to establish a "procompetitive,  Sl- xderegulatory" national policy framework for the telecommunications industry.l{ {O-  /ԍXxSee Joint Statement of the Committee of Conference, S. Conf. Rep. No. 230, 104th Cong., 2d Sess. 113  {O-(1996) ("Joint Explanatory Statement").(# In accordance with this  xgoal, Sections 208, 260, 271, and 275 of the Act contain deadlines ranging from ninety days to five  S- xmonths for the Commission's resolution of certain complaints filed against the Bell Operating Companies{ {O-ԍXxSee 47 U.S.C.  153(4), which defines "Bell Operating Company."(#Ɓ  S- x[("BOCs"), local exchange carriers ("LECs"), and other telecommunications carriers that are subject to the  S- xrequirements of the Act.{ {O!-  ԍXxSee 47 U.S.C.  208(b)(1), 260(b), 271(d)(6)(B), and 275 (c). Each of these provisions is discussed in more detail below.(# Provisions of the 1996 Act further direct the Commission to establish such  xlprocedures as are necessary for the review and resolution of such complaints within the statutory  S|- xdeadlines.MZ| { {O%-  kԍXxSee, e.g., 47 U.S.C.  271(d)(6)(B) stating that the "Commission shall establish procedures for the review   of complaints concerning failures by Bell operating companies to meet conditions required for approval under paragraph 3."(#M Prompt and effective enforcement of the Act and the Commission's rules is crucial to attaining"| ,-(-(ZZ"  x\the 1996 Act's goals of full and fair competition in all telecommunications markets. Such widespread  xcompetition will ensure that the American public derives the full benefit of such competition through new and better products and services at affordable rates.  S`- ` 2x2.` ` We conclude that, in order to fulfill the goals and meet the statutory deadlines of the 1996  xAct, we must revise our formal complaint rules to provide a forum for prompt resolution of all complaints  x.of unreasonably discriminatory or otherwise unlawful conduct by telecommunications carriers, and thus  xzto reduce impediments to robust competition in all telecommunications markets. Consistent with the  xCongressional mandate to expedite the processing of formal complaints, on November 26, 1996, the  S- xCommission released a Notice of Proposed Rulemaking ("Notice")J\{ {O -  ԍXxImplementation of the Telecommunications Act of 1996, Amendment of Rules Governing Procedures to be  {O -  Followed When Formal Complaints Are Filed Against Common Carriers, Notice of Proposed Rulemaking, 11 FCC Rcd 20823 (1996).(#J proposing changes to the rules that  Sr- xgovern formal complaints against common carriers. r{ yO -  /ԍXxThis proceeding is one of a series of rulemakings designed to implement the provisions of the 1996 Act.  {M-  See, e.g., Implementation of the Local Competition Provisions in the Telecommunications Act of 1996,  {O-  =Report and Order, 11 FCC Rcd 15499 (1996) ("Local Competition Order"), aff'd in part and vacated in part  {OX-  sub nom. Competitive Telecommunications Ass'n v. FCC, 117 F.3d 1068 (8th Cir. 1997), aff'd in part and  {O"-  /vacated in part sub nom. Iowa Utilities Board v. FCC, 120 F.3d 753 (8th Cir. 1997) ("Iowa Utils. Bd."),  {O-  Order on Reconsideration, 11 FCC Rcd. 13042 (1996), Second Order on Reconsideration, 11 FCC Rcd.  {O-  19738 (1996), Third Order on Reconsideration and Further Notice of Proposed Rulemaking, FCC 97295  {O-  (rel. Aug. 18, 1997), further recon pending; Implementation of the NonAccounting Safeguards of Sections   [271 and 272 of the Communications Act of 1934, as amended; and Regulatory Treatment of LEC Provision  {O-  of Interexchange Services Originating in the LEC's Local Exchange Area, Notice of Proposed Rulemaking,  {O-  z11 FCC Rcd 3046 (1996) ("BOC InRegion NPRM"); Implementation of the NonAccounting Safeguards  {O-  of Sections 271 and 272 of the Communications Act, as amended, First Report and Order and Further Notice  {Op-  Oof Proposed Rulemaking, 11 FCC Rcd 21905 (1996) ("BOC InRegion Order"); Policy and Rules   Concerning the Interstate, Interexchange Marketplace; Implementation of Section 254(g) of the  {O-  Communications Act of 1934, as amended, Report and Order, 11 FCC Rcd. 9564 (1996); Implementation   of the Telecommunications Act of 1996; Telemessaging, Electronic Publishing, and Alarm Monitoring  {O-  >Services, Notice of Proposed Rulemaking, 11 FCC Rcd 18959 (1996) ("Section 260, 274, 275 NPRM");   Implementation of the Telecommunications Act of 1996; Telemessaging, Electronic Publishing, and Alarm  {O&-  Monitoring Services, First Report and Order and Further Notice of Proposed Rulemaking, 12 FCC Rcd  {O-  L5361 (1997) ("Section 260, 274, 275 First Report and Order"); Implementation of the Telecommunications  {O-  Act of 1996; Telemessaging, Electronic Publishing, and Alarm Monitoring Services, Second Report and  {O-  Order, 12 FCC Rcd 3824 (1997) ("Section 260, 274, 275 Second Report and Order"); and Implementation  {ON-  of Section 255 of the Telecommunications Act of 1996, Notice of Inquiry, 11 FCC Rcd. 19152 (1996)  {O -("Section 255 NOI").(# In the Notice we articulated our goal of expediting  SL - xthe resolution of all formal complaints, not just those enumerated in the 1996 Act. The Notice sought  xpublic comment on comprehensive rule changes and additions that would: (1) encourage parties to attempt  xto settle their disputes before filing formal complaints; (2) facilitate the filing and service of complaints  xzand related pleadings; (3) improve the content and utility of the initial pleadings filed by both parties,  S - xwhile reducing reliance on discovery and subsequent pleading opportunities; and (4) eliminate unnecessary or redundant pleadings and other procedural devices. "^,-(-(ZZ"Ԍ S- ` x3.` ` In this Report and Order, we adopt certain of the proposed rules, with some modifications.  xThe amended rules will foster our ability to meet the statutory complaint resolution deadlines of the 1996  xAct and expedite the resolution of all formal complaints, while safeguarding the due process interests of  xaffected parties. The rules we adopt today apply to all formal complaints, except complaints alleging  Sb- x\violations of Section 255.Zb{ yO-  ԍXxSection 255 governs access to telecommunications equipment and services by persons with disabilities. 47   MU.S.C.  255. The Commission released a Notice of Inquiry seeking comment on the implementation of  {OZ-Section 255 and on enforcement issues, including potential complaint procedures. See Section 255 NOI.(#ƪ A uniform approach will ensure that the Commission places on all formal  xcomplaints the same procompetitive emphasis underlying the 1996 Act's complaint resolution deadlines.  S- x.The rules we adopt in this Report and Order shall be important tools for promptly assessing a common  xcarrier's compliance with the requirements of the Act and our rules. In addition, these rules provide for suitable remedial actions where appropriate.  St- ` x4.` ` We intend to closely monitor the effectiveness of our new streamlined rules in promoting  xthe procompetitive goals of the Act. We will not hesitate to revisit the rules and policies adopted in this  xkReport and Order if we later determine that further modifications are needed to ensure that complaint  xproceedings are promptly and fairly resolved and, more generally, to promote the Act's goal of full and fair competition in all telecommunications markets.  S - ` x5.` ` In addition, Commission staff retains considerable discretion under the new rules to, and  x\is indeed encouraged to, explore and use alternative approaches to complaint adjudication designed to  xensure the prompt discovery of relevant information and the full and fair resolution of disputes in the most  x[expeditious manner possible. We recently established an Enforcement Task Force, the principal mission  xof which is to promote timely and appropriate enforcement of the procompetitive policies of the 1996  S- xmAct. { {OF-ԍXx See "FCC Creates Local Competition Enforcement Task Force," News Release (July 15, 1997).(#ƞ Among other duties, the Enforcement Task Force has been charged with identifying and  xinvestigating actions by common carriers that may be hindering competition in telecommunications  xymarkets and with initiating enforcement actions where necessary to remedy conduct that is unreasonable,  SD- xanticompetitive or otherwise harmful to consumers. D|{ {O`-ԍXx See "FCC Creates Local Competition Enforcement Task Force," News Release (July 15, 1997).(#Ƥ The Enforcement Task Force is considering  xwhether to recommend alternative forms of complaint adjudications and enforcement actions to ensure that  xthe goals underlying the procompetitive policies of the 1996 Act and the Commission's implementing  S- xrules and orders are met.I { yOz-  \ԍXx#X\  P6G;P#Separate enforcement actions could include, for example, forfeiture actions under Section 503 of the Act  {OB -and show cause proceedings under Section 312 of the Act. See 47 U.S.C.  503, 312.(#I Any such recommendation may form the basis for a subsequent Report and Order to be considered by the Commission at a later date.  ST- ` x6.` ` Finally, we note that Section 207 of the Act gives any person the option of pursuing  x^claims for damages against common carriers based on alleged violations of the Act either at the  S- xCommission or before a federal district court of competent jurisdiction. h { yO &-  [ԍXx47 U.S.C.  207. The section further provides that "such person shall not have the right to pursue both such  {O&-remedies." Id.(# Thus, parties looking to recover" ,-(-(ZZ\"  xmonetary damages are free to weigh the advantages of bringing their claims before a federal district court  S-against the benefits of proceeding under the Commission's expedited complaint procedures. { yO@-  ԍXxFor example, parties to district court proceedings have a full panoply of trialtype discovery tools that are   \unworkable, and, therefore, not permitted, under our factpleading rules. As the Commission emphasized in promulgating discovery rules in 1988:(#  ` x` ` [U]sing the full panoply of trialtype discovery tools similar to the Federal Rules of Civil  ` @Procedure in formal complaint proceedings would be illadvised; the nature of the proceedings are  ` }essentially different. Litigation under the Federal Rules relies on notice pleading to raise issues  ` on a wide variety of subjects. Facts are fleshed out in lengthy, complex, timeconsuming and  ` 3costly discovery, culminating in a trial if the suit is not settled or disposed of on summary  ` judgment. Formal complaints, on the other hand, are limited to specific common carrier violations  ` within this Commission's special expertise and often are resolved solely on the pleadings to save both time and costs.(#`  {Mh -  XxAmendment of Rules Governing Procedures to be Followed When Complaints are Filed Against Common  {O0-  MCarriers, Report and Order, 3 FCC Rcd. 1806, 1810 (1988). See American Message Center v. F.C.C., 50   F.3d 35, 4041 (D.C. Cir. 1995) (the court acknowledged that the Commission may properly place   limitations, that do not exist in trials governed by the Federal Rules, on the scope and methods of discovery in its formal complaint proceedings).(#  S- II. BACKGROUNDpp  S8-x A.` ` Statutory Framework for Complaints Against Common Carriers x`  S- ` x7.` ` Prior to enactment of the 1996 Act, Sections 206 to 209 of the ActT{ yO*-ԍXx47 U.S.C.  206209.(#T provided the statutory  S- xframework for our rules for resolving formal complaints filed against common carriers. 2{ yO-  \ԍXxIn addition, Section 415 of the Act generally prescribes a twoyear statute of limitations on the recovery   of damages or overcharges against a common carrier. Subject to limited exceptions, any complaint for   >recovery of damages must be filed within two years from the time the cause of action accrues. 47 U.S.C.  415(b) and (c).(#ƻ Section 206 of  xthe Act establishes the liability of a common carrier for damages sustained by any person or persons as  x[a consequence of that carrier's violation of any provision of the Act. Section 207 of the Act permits any  xperson claiming to be damaged by the actions of any common carrier either to make a complaint to the  xCommission or bring suit in federal district court for the recovery of such damages. Section 208(a)  x<authorizes complaints by any person "complaining of anything done or omitted to be done by any common  S - xycarrier" subject to the provisions of the Act. { {O"-  ԍXxSection 208 was derived from Section 13 of the original Interstate Commerce Act of 1887. See I.  {OT#-  Sharfman, The Interstate Commerce Commission, Vol. I, 1719, Vol. IV, 170, 230 (1931). This legislation   zgrew out of the Granger movement's drive to give "to agriculture relief from discriminatory and excessive  {O$-  ycharges in the transportation and handling of produce." Felix Frankfurter, The Commerce Clause 83 (1936).   The legislation was declaratory of and codified existing common law obligations of railroads as common  {Ox&-  Mcarriers so that they could not exercise their powers arbitrarily. See American Trucking v. Atchison T&S  {OB'-F.R. Co., 387 U.S. 397, 406 (1967).(#Ɵ Section 208(a) specifically states that "it shall be the duty" d,-(-(ZZ{ "  xyof the Commission to investigate the matters complained of in such manner and by such means as it shall  S- xdeem proper."O{ yO@-ԍXx47 U.S.C.  208(a).(#O Section 209 of the Act specifies that, if "the Commission shall determine that any party  xcomplainant is entitled to an award of damages under the provisions of this Act, the Commission shall  S- x[make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before  S`-a day named."hX`X{ yOX-  >ԍXx47 U.S.C.  209. Under Section 207, any person "claiming to be damaged" by a carrier's violation of the   Act has a choice of filing a complaint with the Commission or in federal district court, but not in both fora.  yO-47 U.S.C.  207.(#h  S- ` x8.` ` In 1988, Congress added subsection 208(b) to require that complaints filed with the  x0Commission concerning the lawfulness of a common carrier's charges, practices, classifications or  x=regulations, must be resolved by the Commission in a final, appealable order within twelve months from  xMthe date filed, or fifteen months from the date filed if "the investigation raises questions of fact of . . .  Sp- xextraordinary complexity."px{ {O-  ԍXx47 U.S.C.  208(b)(1). See Federal Communications Commission Authorization Act of 1988, Pub. L. No. 100594, 102 Stat. 3021 (Nov. 3, 1988) ("FCCAA").(# In addition, Congress amended subsection 5(c)(1) to require that such  SH -decisions be made by the Commission, not the Bureau staff pursuant to delegated authority., H { yO-ԍXxSection 5(c)(1) states:(#  ` SXxX` ` When necessary to the proper functioning of the Commission and the prompt and  ` orderly conduct of its business, the Commission may, by published rule or by  ` order, delegate any of its functions (except functions granted to the Commission  ` by this paragraph and . . . except any action referred to in sections 204(a)(2),  ` 208(b), and 405(b)) to a panel of commissioners, an individual commissioner, an employee board, or an individual employee.x`  {O-   Xx47 U.S.C.  5(c)(1). See also, e.g., 47 C.F.R.  0.91(a) and 0.291 (Common Carrier Bureau); 47 C.F.R.   . 0.131(a) and 0.331(a)(2) (Wireless Telecommunications Bureau); 47 C.F.R.  0.51(d) and 0.261(a)(15),  {OT-  [(b)(1)(i) (iii) (International Bureau). Throughout this Report and Order, unless otherwise indicated, "staff" shall refer to the staff of the Commission. (#  S - Xx B.X` ` Complaint Provisions Amended and Added by the 1996 Act  `  S - ` x9.` ` As amended or added by the 1996 Act, Sections 208, 260, 271, and 275 of the Act all  xcontain deadlines for the Commission's resolution of formal complaints alleging violations under the  SX-particular section by a common carrier.kX{ yO"-ԍXx47 U.S.C.  208(b), 271(d), 260, 275.(#k  S- ` x 10.` ` Section 208. The 1996 Act amended Section 208, entitled "Complaints to the  S- xCommission."LV{ yO&-ԍXx47 U.S.C.  208.(#L Section 208(b)(1) now mandates that "the Commission shall, with respect to any",-(-(ZZ"  xinvestigation under [Section 208(b)] of the lawfulness of a charge, classification, regulation, or practice,  xissue an order concluding such investigation within 5 months after the date on which the complaint was  S- xkfiled," rather than the twelve to fifteen month deadline previously imposed.[{ yO-ԍXx47 U.S.C.  208(b).(#[ In addition, subsection  xL208(b)(2) provides that any such investigation initiated prior to enactment of subsection 208(b)(2) must  S`-be concluded within twelve months after the date of enactment.^`X{ yOX-ԍXx47 U.S.C.  208(b)(2).(#^  S- ` x 11.` ` Section 260. The 1996 Act added Section 260, entitled "Provision of Telemessaging  S-Service."L{ yOr -ԍXx47 U.S.C.  260.(#L Section 260(b) provides that:  ` pXxX` ` [t]he Commission shall establish procedures for the receipt and review of  ` pcomplaints concerning violations of [Section 260(a)] or the regulations thereunder  ` pthat result in material financial harm to a provider of telemessaging service. Such  ` pprocedures shall ensure that the Commission will make a final determination with  ` prespect to any such complaint within 120 days after receipt of the complaint. If  ` pthe complaint contains an appropriate showing that the alleged violation occurred,  ` pthe Commission shall, within 60 days after receipt of the complaint, order the  ` plocal exchange carrier and any affiliates to cease engaging in such violation  SZ-pending such final determination.[Zx{ yOr-ԍXx47 U.S.C.  260(b).(#[ `  S - ` x 12.` ` Section 271. The 1996 Act added Section 271, entitled "Bell Operating Company Entry  S- xinto InterLATA Services."L{ yO-ԍXx47 U.S.C.  271.(#L Section 271(d)(6)(B) directs the Commission to "establish procedures for the  x>review of complaints concerning failures by [BOCs] to meet conditions required for approval" under  S- xSection 271(d)(3) to provide inregion interLATA services.c{ yO-ԍXx47 U.S.C.  271(d)(6)(B). (#c Section 271(d)(6)(B) further provides that,  Sl-"[u]nless the parties otherwise agree, the Commission shall act on such complaint within 90 days."cl( { yO4-ԍXx47 U.S.C.  271(d)(6)(B). (#c  S- ` ox 13.` ` Section 275. The 1996 Act added Section 275, entitled "Alarm Monitoring Services."L { yOt"-ԍXx47 U.S.C.  275.(#L  xSection 275(c) requires the Commission to "establish procedures for the receipt and review of complaints  xMconcerning violations of [Section 275(b)] or the regulations thereunder that result in material financial  S-harm to a provider of alarm monitoring service."VH { yO&-ԍXx47 U.S.C.  275(c). (#V Section 275(c) further provides that:",-(-(ZZ"Ԍ ԙXx[s]uch procedures shall ensure that the Commission will make a final determination with  respect to any such complaint within 120 days after receipt of the complaint. If the  complaint contains an appropriate showing that the alleged violation occurred, . . . the  _Commission shall, within 60 days after receipt of the complaint, order the incumbent local  exchange carrier . . . and its affiliates to cease engaging in such violation pending such  S8-final determination.\ 8{ yO-ԍXx47 U.S.C.  275(c). (#\   S- ` x 14.` ` The 1996 Act also added several provisions that reference complaint proceedings but do not contain resolution deadlines.  Sp- ` x15.` ` Section 255. The 1996 Act added Section 255, entitled "Access by Persons with  SJ - x-Disabilities."L!J X{ yOB -ԍXx47 U.S.C.  255.(#L Section 255 requires manufacturers of telecommunications equipment or customer premises  xequipment to ensure that the equipment is "designed, developed, and fabricated to be accessible to and  S - xusable by individuals with disabilities""  { yO-  ԍXx47 U.S.C.  255(b). The term "disability" is defined in subsection 255(a) as having the "meaning given to   it by section 3(2)(A) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102(2)(A))." 47 U.S.C.    255(a)(1). "Readily achievable" is defined in subsection 255(a) as having the meaning given to it by section 301(9) of that Act (42 U.S.C.  12181(9))." 47 U.S.C.  255(a)(2).(# and further requires any providers of telecommunications services  S - x to "ensure that the service is accessible to and usable by individuals with disabilities."O# { yOB-ԍXx47 U.S.C.  255(c).(#O Section 255  xprovides that "[t]he Commission shall have exclusive jurisdiction with respect to any complaint under this  S - x.section" but imposes no specific resolution deadline for such complaints.$  ` { yO-  ԍXx47 U.S.C.  255(f). In limiting the remedies available under this Section, subsection 255(f) specifically   excludes "any private right of action to enforce any requirement of the section or any regulation thereunder."   Thus, a complaint filed with the Commission is the sole relief mechanism available to parties claiming a violation of Section 255.(# We have initiated a separate  SZ-proceeding to implement the provisions of Section 255.%\ZH { {OB-  #X PP#эXxSee Section 255 NOI. See also Telecommunications Act Accessibility Guidelines for Customer Premises  {O -  @Equipment and Telecommunications Equipment, Notice, 61 Fed. Reg. 13813 (Architectural and Transportation Barriers Compliance Board, 1996).(#ƈ  S - ` x16.` ` Section 274. The 1996 Act added Section 274, entitled "Electronic Publishing by Bell  S- x[Operating Companies."L&l{ yO"-ԍXx47 U.S.C.  274.(#L Section 274(e)(1) provides that "any person claiming that an act or practice of  xany [BOC], affiliate, or separated affiliate constitutes a violation of [Section 274] may file a complaint  xwith the Commission or bring suit in federal district court as provided in Section 207 of the Act" and that  xka "[BOC], affiliate, or separated affiliate" shall be liable for damages as provided in Section 206 of the"l &,-(-(ZZ"  S- x\Act.'{ yOh-  /ԍXx47 U.S.C.  274(e)(1). This section further provides, however, that "damages may not be awarded for a   violation that is discovered by a compliance review as required by [Section 274(b)(7)] and corrected within   90 days." Section 274(b)(8) provides that each separated affiliate or joint venture and the BOC shall have   performed annually a compliance review that is conducted by an independent entity for the purpose of  {O-  determining compliance during the preceding calendar year with any provision of Section 274. Id. at  274(b)(8).(# Similarly, subsection 274(e)(2) permits an aggrieved person to apply to the Commission for a  xceaseanddesist order or to a U.S. District Court for an injunction or order compelling compliance with  S-Section 274. None of the complaint provisions in Section 274 contain deadlines for Commission action.U(B{ yO -ԍXx47 U.S.C. at  274.(#U  S`- ` `x17.` ` In addition, the 1996 Act imposed other requirements on the BOCs and other common  xcarriers which could lead to formal complaint actions under Section 208. For example, Section 254(k),  xentitled "Subsidy of Competitive Service Prohibited," prohibits telecommunications carriers from using  S- xnoncompetitive services to subsidize services that are subject to competition._){ {OZ-ԍXxSee 47 U.S.C.  254(k).(#_ The 1996 Act also added  S- xSection 276, entitled "Provision of Payphone Service."L*d { yO-ԍXx47 U.S.C.  276.(#L Section 276(a) prohibits a BOC from subsidizing  S- xits payphone service through its telephone exchange service operations or its exchange access operations.^+ { yO,-ԍXx47 U.S.C.  276(a)(1).(#^  xyTimely, responsive enforcement of provisions such as these will be necessary to promote the 1996 Act's goal of fostering competitive telecommunications markets.  S - ` x18.` ` We tentatively concluded in the Notice that the provisions of the 1996 Act that specifically  xrefer to complaint procedures do not diminish the Commission's broad authority to investigate formal  S - xcomplaints under Section 208.," { {O-  ԍXxNotice at 20827. Section 208(a) authorizes "any person, any body politic or municipal organization, or state   commission," to file complaints with the Commission about "any thing done or omitted to be done" by any   common carrier in contravention of the Act. The Commission is required to "investigate the matters complained of in such manner and by such means as it shall deem proper." 47 U.S.C.  208(a).(# AT&T, the sole commenter to address this issue, agrees with our tentative conclusion, explaining that Section 261(a) states that:  PXxnothing in this part [Part II] shall be construed to prohibit the Commission from enforcing  ~regulations prescribed prior to the date of enactment of the Telecommunications Act of  1996 in fulfilling the requirements of this part, to the extent that such regulations are not  S-inconsistent with the provisions of this part.n-n{ {O#-ԍXxId. at 23, citing 47 U.S.C.  261(a).(#n  " -,-(-(ZZ"Ԍ xAccording to AT&T, specific references in the Act to the Commission's duties to resolve formal  xcomplaints under Section 271 and elsewhere in the Act affect only the time in which such matters must  S-be decided, but do not affect the Commission's existing authority under Section 208.N.{ yO-ԍXxAT&T Comments at 23.(#N  S`- ` x19.` ` We find that Congress' actions in specifying certain complaint procedures and deadlines  xfor those procedures do not restrict the Commission's authority to resolve formal complaints pursuant to  xNSection 208. Section 261 is entitled, "Effect on Other Requirements" and subsection (a) indicates  xCongress' intent to leave intact the Commission's authority except where it would be inconsistent with  S- x.the Act itself.Y/X{ {O -ԍXxSee 47 U.S.C.  261(a).(#Y We conclude that any references to complaint resolution deadlines in Title II of the Act  xare intended to affect only the time in which specific matters must be decided, and do not decrease the Commission's existing authority under Section 208.  S - III. AMENDMENTS TO RULES OF PRACTICE AND PROCEDURE ĐTP  S -Xx A.X` ` Overview (#`  S - ` x20.` ` The focus of this proceeding is on establishing rules and procedures to implement the  xexpedited complaint provisions set forth by the 1996 Act and to speed the resolution of all formal  S0- xLcomplaints in accordance with the procompetitive policies underlying the 1996 Act.>00{ yO-  1ԍXxIn developing these rules, the Commission conducted meetings with members of the industry, the   telecommunications bar, and the public to share information, concerns, and ideas for improving the speed   and effectiveness of the complaint process. The staff also examined several models of litigation efficiency,   including the Federal Rules of Civil Procedure and the expedited procedures utilized in the U.S. District  {O-  Court for the Eastern District of Virginia. See E.D. Va. R. 1, et. seq. The system for expedited disposition   of civil litigation in the Eastern District of Virginia is popularly known as the "rocket docket." "The Eastern   District of Virginia has consistently been the fastest and most efficient judicial district in the federal court   ksystem . . . [T]he mean time from filing of an answer to the trial is only seven months, less than half the  {O-  national average of eighteen months." George F. Pappas and Robert G. Sterne, Patent Litigation in the  {O-Eastern District of Virginia, 35 IDEA: J.L. & Tech. 361, 363 (1995).(#> Three objectives  xform the basis for the amendment of the formal complaint rules, which focus on settlement efforts, enhanced pleading content, and streamlined procedures.  S- ` }x21.` ` Our first objective is to promote settlement efforts to enable parties to resolve disputes on  xtheir own before resorting to adjudication before the Commission. We conclude that more dialogue  xbetween parties prior to the complaint process will reduce, and in some cases, eliminate, the need to file  xLformal complaints with the Commission. Consequently, we require complainants and defendant carriers  xKto certify in their respective complaints and answers that the possibility of settlement was discussed before  S- xthe complaint was filed with the Commission.t1 { {O$-ԍXxSee Appendix A,  1.721(a)(8), 1.724(h).(#t Certification of settlement attempts will promote pre xfiling discussions and information exchanges among the disputing parties. In situations in which disputes  xare not resolved, we expect that prefiling discussions and information exchanges will enable parties to"x 1,-(-(ZZ"  xnarrow the number and scope of the issues to be presented to the Commission for resolution under the expedited complaint procedures.  S- ` 4x22.` ` Our second objective is to improve the utility and content of pleadings, so that the  xcomplaint, answer, and any necessary reply may serve as the principal basis upon which the Commission  x[will make a decision on the merits of the complaint. Under the format and content rules, absent a waiver  xfor good cause shown, complainants and defendants must make factual allegations in their pleadings and  S- xZsupply documentation to support such facts. To the extent that the Commission determines that additional  xinformation is needed in the record to resolve a complaint fully, the parties will be required to respond quickly.  SH - ` _x23.` ` Our third objective is to streamline the formal complaint process by eliminating or limiting   procedural devices and pleading opportunities that have contributed to undue delays in formal complaints.  S -  For example, we conclude that we should modify discovery to increase staff control over the processc2 { {O` -ԍXxSee Appendix A,  1.729(a).(#c and  S -  limit the filing, timing, and scope of briefs,u3 Z{ {O-ԍXxSee Appendix A,  1.732(b) (f).(#u as well as streamline the service process by having  S -  complainants serve complaints directly on defendants.o4 { {O4-ԍXxSee Appendix A,  1.735(d).(#o In addition, we eliminate certain pleading   opportunities that have been of little value to the complaint resolution process, including crosscomplaints,  SX-counterclaims, motions to make a complaint definite and certain, and amendments to complaints.e5X~{ {Ov-ԍXxSee Appendix A,  1.725, 1.727.(#e  S-  24.` ` To advance these three objectives, we have designed rules to speed the processing of all   formal complaints. By encouraging dialogue among the parties prior to the filing of formal complaints,   many conflicts will be settled and those complaints that are filed will have been narrowed in scope. By   Nrequiring initial pleadings to contain complete information and documentation, the parties and the   Commission will be better prepared to resolve disputed issues at an early stage of the complaint process.   And finally, by streamlining and eliminating unnecessary pleading opportunities, the parties and the   yCommission will be able to focus early on the essential activities and information needed to more quickly  S-resolve formal complaints.  S- B.` ` Applicability of the Rules (#`  SP-XX` ` 1. Uniform Application of the Rules ppX(#  S-` ` X a.XThe Notice (#  S-  %25.` ` In the Notice, we tentatively concluded that the procompetitive goals and policies   yunderlying the short complaint resolution deadlines in the Act should apply to all formal complaints, not  Sc-  -just to those specifically added or amended by the 1996 Act.U6c{ {O'-ԍXNotice at 20825.(#U The Notice proposed to implement uniform"c 6,-(-(ZZ"   procedures and pleading requirements to expedite the resolution of all formal complaints and sought   =comment on the need for specialized rules or procedures for handling complaints arising under particular  S-provisions of the Act.[7{ {O-ԍXNotice at 20825.(#[  S`-XX` `  b.Comments (#`  S-  26.` ` BellSouth supports applying the same procedures to all formal complaintsQ8Z{ yO -ԍXBellSouth Comments at 2.(#Q and the   National Association for the Deaf ("NAD") agrees, stating that separate sets of procedures could be  S-  confusing for complainants.Q9{ yOJ -ԍXNAD Reply Comments at 2.(#Q The majority of parties commenting on this issue, however, argue for   xspecial expedited procedures for those complaints that are subject to specific statutory deadlines, with other  Sp-  complaints proceeding under more relaxed or flexible timetables.:pz{ {O- ԍXSee, e.g., American Public Communications Council ("APCC") Comments at 7; Cincinnati Bell Telephone ("CBT") Comments at 4.(# APCC expresses concern that the new  SH -  procedures will place significant burdens on complainants and defendants.L;H { yO-ԍXAPCC Comments at 7.(#L CBT states that Sections   260(b), 271(d)(6)(B), and 275(c), which require complaints to be resolved under ninety or 120day   deadlines, involve very specialized subject matters, while Section 208 complaints may involve any aspect   of telecommunications and therefore parties to Section 208 complaints may need more time to develop  S -  Mand resolve issues.K< d { yO-ԍXCBT Comments at 4.(#K GTE suggests using separate proceedings for "fasttrack" cases, stating that the   Commission should wait until it has gained more experience with application of the provisions of the 1996  SX-Act before attempting to apply the same expedited procedures to all formal complaints.Q=X { yO-ԍXGTE Reply Comments at 6.(#Q  S-  27.` ` Some commenters also urge the Commission to establish expedited procedures for those   =complaints that are not specifically covered by a statutory deadline but which, they argue, are needed to  S-  ensure full and fair competition.> { {O-ԍXSee, e.g., MCI Comments at 5; Telecommunications Resellers Association ("TRA") Comments at 8.(#Ƣ For example, MCI proposes expedited procedures for interconnection S-  related complaints pursuant to Sections 251 and 252 of the Act.K?{ yOF"-ԍXMCI Comments at 5.(#K TRA argues that complaints filed by   resale carriers should be processed under expedited procedures because of the size and resource disparities   between resellers and their underlying network service providers, and because of the unusual circumstances  S-in which resellers have dual status as both customers and competitors of network service providers.K@{ yO^&-ԍXTRA Comments at 8.(#K " 6@,-(-(ZZp"Ԍ S-  28.` ` The NAD references its comments to the Section 255 NOI, in which it proposed that the   Commission create procedures to coordinate with the Department of Justice ("DOJ") to determine the   appropriate governmental authority for reviewing complaints that arise out of a lack of access to   telecommunications services for persons with disabilities. Such complaints could result either from the   failure of a place of public accommodation or state or local governmental entity to follow the requirements   >of the Americans with Disabilities Act of 1990 ("ADA") or from the failure of a telecommunications  S-  manufacturer or service provider to comply with Section 255.AZ{ yOz- [ԍXNAD Reply at 6. The NAD also notes that similar arrangements exist among the Department of Education,  kthe Department of Health and Human Services, and the Department of Justice with respect to civil rights  {O -complaints that overlap between the ADA and the Rehabilitation Act of 1973. Id.(#Ƙ The NAD states that its proposal will aid  S-parties who file Section 255 complaints that may raise jurisdictional issues.,B{ yOt - ԍXFor example, several parties may be liable for the improper placement of a TTY outlet in a hotel, including  yO< -the hotel or the manufacturer of the payphone that utilizes that outlet. NAD Reply at 6. (#,  S-XX` `  c.Discussion (#  SJ -  29.` ` We affirm our tentative conclusion that uniform streamlined procedures and pleading   requirements should be applied to all formal complaints filed against common carriers, even those that are   not subject to specific statutory deadlines, with the exception of complaints alleging violations of Section  S -  255.C B{ {O-ԍXSee, supra, n.37. See, generally, Section 255 NOI.(#Ɛ All formal complaints should be resolved as expeditiously as possible. We find that uniform   /procedures and pleading requirements will promote efficiency in the Commission's administration of  S -  complaints and will minimize confusion among the parties.D  { yO- ԍXWe emphasize again that the staff retains considerable discretion to use alternative approaches and  \techniques designed to promote fair and expeditious resolution of complaints. For example, the staff has  Lthe discretion to require any party to submit information or pleadings that are not specifically contemplated under the amended rules if such submission will facilitate the prompt resolution of the matters in dispute. (# Uniform procedures for all formal   complaints will promote the Commission's goal of expediting the resolution of these disputes by allowing the Commission and all parties to follow one set of rules.  S-  230.` ` We disagree with the commenters who support expedited procedures only for complaints  S-  that have statutory deadlines or that involve competitive issues for the following reasons.Ez { yO- MԍXWith respect to MCI's claim that specialized procedures are needed to expedite resolution of Section 208  complaints alleging violations of the interconnection provisions of Section 251, the U.S. Court of Appeals  for the 8th Circuit recently held that the Commission lacks authority either to review the decisions of state  commissions regarding Section 251 interconnection agreements or to enforce stateapproved agreements in  {O6"- the context of Section 208 complaint. Iowa Utils. Bd., 120 F.3d 753, 80304. To the extent that complaints  alleging violations of Section 251 fall properly within our jurisdiction, such complaints will be processed  yO#-under the expedited procedures we adopt today for all Section 208 complaints.#X\  P6G;P#(# First, we agree   with NAD that having separate sets of procedures for certain types of complaints would create confusion   for parties who might be unclear as to which rules to follow and might even lead to repeated and   inadvertent violations of our procedural rules. Second, we conclude that separate complaint procedures   kwould permit parties to exploit our rules by alleging certain violations in order to manipulate the time"E,-(-(ZZD"   frame or level of evidentiary support required in a particular complaint. For example, a complainant   .alleging that a BOC has violated certain provisions of the Act might be tempted to add an allegation that   the BOC has also failed to meet a condition required for approval for provision of interLATA services   Lin violation of Section 271, in order to take advantage of the ninetyday resolution deadline mandated by  S`-  Section 271(d)(6)(B)._F`{ {O-ԍXSee 47 U.S.C.  271(d)(6)(B).(#_ Third, to the extent that certain commenters contend that subjecting all complaints   to expedited procedures will unnecessarily work hardships on complainants and defendants in cases  S-  without statutory deadlines,cGZ{ {O -ԍXSee, e.g., APCC Comments at 7.(#c we note that the Commission has considerable discretion under the amended  S-  rules to accommodate the needs of parties in cases where no statutory deadline applies.IHX{ yOt - ԍXFor example, the staff will be in a position to waive or relax the format and content requirements in certain   cases and to grant parties more leeway conducting discovery and filing briefs for purposes of prosecuting or defending complaints.(#I Finally, separate   ksets of procedures would be administratively burdensome for the Commission. Not only would it be   cumbersome to promulgate separate sets of procedures, but it would decrease staff efficiency to apply different procedural rules to different complaints.  S -  31.` ` We defer consideration of NAD's proposal to establish coordination procedures with the   DOJ regarding jurisdiction of accessibility complaints in this proceeding. We will address this proposal  S -  in our Section 255 implementation rulemaking,_I { {O|-ԍXSee Section 255 NOI.(#_ so as to permit the Commission to take a comprehensive approach to implementation of Section 255.  SX-` ` 2. Applicability of the Section 208(b)(1) Deadline (#`  S0-  S- ` `  a.The Notice   S-  32.` ` We stated in the Notice that the new fivemonth resolution deadline in Section 208(b)(1)   applies only to those formal complaints that investigate the "lawfulness of a charge, classification,  Sk-  regulation or practice."OJk{ {O-ԍXNotice at 20827.(#O Section 208(b), as originally added by Congress in 1988 in the FCCAA,VKk0 { {O;-ԍXSee, supra, n.19.(#V has   ybeen interpreted previously as applicable only to complaints about matters contained in tariffs filed with  S-  the Commission. L { {O}"- ]ԍXSee, e.g. Letter from Cheryl A. Tritt, Chief, Common Carrier Bureau, to Martin J. Fitzgerald, Special  /Assistant to the General Counsel, U.S. General Accounting Office, dated September 23, 1992, at 1. This  yO$- interpretation had been previously communicated to the House Committee on Energy and Commerce 1991  {O$- by then FCC Chairman Alfred C. Sikes in November 1991. See Letter from Alfred C. Sikes, Chairman,  Federal Communications Commission, to the Honorable John D. Dingell, Chairman of Committee on Energy and Commerce, U.S. House of Representatives, dated November 15, 1991. (# In other words, under this interpretation, only those complaints challenging the   @"lawfulness of a charge, classification, regulation or practice" reflected in a tariff filed with the">L,-(-(ZZ4"  S-  Commission pursuant to Section 203 of the ActLM{ yOh-ԍX47 U.S.C.  203.(#L have been viewed as subject to the resolution deadlines contained in former Section 208(b).  S-` `  b. `  Comments (#  S8-   33.` ` Several commenters take a much broader view of the scope of Section 208(b). According   jto these commenters, the fivemonth resolution deadline in Section 208(b)(1), in the absence of a specific   jstatutory resolution deadline such as in Sections 260, 275, and 271, applies to all formal complaints filed  S-  pursuant to Section 208.NX{ {O - ԍXSee, e.g., Bell Atlantic Comments at 1; BellSouth Comments at 1; CBT Comments at 4;   APCC Comments at 7.(# Although the commenters provide little argument to support this view, the crux   of their claim appears to be that the language in Section 208(b)(1) referring to "investigation[s] into the   lawfulness of a charge, classification, regulation or practice" is broad enough to cover any unlawful act  SH -  or omission by a common carrier which could subject it to a complaint filed pursuant to Section 208.OH { {O- ԍXSee, e.g., Bell Atlantic Comments at 1; BellSouth Comments at 1; CBT Comments at 4;   APCC Comments at 7.(#   MUnder this broad interpretation of Section 208(b)(1), the Commission would have a maximum of five months to resolve any formal complaint filed pursuant to Section 208.  S -` `  c.Discussion  SX-  a!34.` ` The plain language of the Act establishes that the class of complaints subject to the   deadline in Section 208(b)(1) is narrower than the class of complaints that can be filed under Section  S-  208(a). Section 208(a), inter alia, gives any person the right to complain about "anything done or omitted  S-  \to be done" by a common carrier in contravention of the Act.OP { yO-ԍX47 U.S.C.  208(a).(#O The complaint resolution deadline in   zSection 208(b)(1), on the other hand, refers only to those complaints involving investigations into the  S-lawfulness of a "charge, classification, regulation, or practice" of a carrier.QZ{ yO- ԍX47 U.S.C.  208(b)(1). We note that the language "charge, classification, regulation or practice" is also  {O- used, with slight variation, in Sections 201(b), 202(a), 203(a) and (b), and 205(a) of the Act. See 47 U.S.C.  201(b), 202(a), 203(a) and (b), and 205(a).(#Ƃ  SB-  $"35.` ` While there is little guidance in Section 208 itself for defining the subset of complaints   covered by Section 208(b), we conclude that Section 208(b)(1) covers complaints relating to the   Llawfulness of those matters required to be in tariffs. Stated another way, the deadline covers complaints   relating to the lawfulness of matters with respect to which the Commission could exercise its prescription  S-  power under Section 205.fRX { yO%- ԍXSection 205 provides that the Commission is "authorized and empowered to determine and prescribe what  will be the just and reasonable charge . . . and what classification, regulation, or practice is or will be just fair, and reasonable . . ." 47 U.S.C.  205.(#f The deadlines in Sections 204(a)(2)(A) (pertaining to the nature and timing"R,-(-(ZZ"  S-  of tariff investigations by the Commission)_S{ {Oh-ԍXSee 47 U.S.C.  204(a)(2)(A).(#_ and 208(b)(1)]TZ{ {O-ԍXSee  47 U.S.C.  208(b)(1).(#] are identical in both the Act, as amended by  S-  the FCCAA,nU{ {Od-ԍXSee 47 U.S.C.  204(a)(2)(A), 208(b)(1).(#n and the 1996 Act.PV~{ yO-ԍ1996 Act at  402(b)(3)(4).P In addition, the provision in the 1996 Act establishing the effective   date for the changes to the tariff investigation and complaint resolution deadlines specifically states that   0the new deadlines in Sections 204 and 208(b) shall apply only with respect to charges, practices,  S`-  zclassifications, or regulations "filed" on or after one year after the date of enactment.TW`{ yO -ԍX1996 Act at  402(b)(4).(#T The use of the   word "filed" connotes a tariff filing pursuant to Section 203 of the Act because it is generally pursuant   to Section 203 that a "charge, classification, regulation, or practice" would be "filed" with the Commission.  S-   y#/W #36.` ` We note, moreover, that the 1996 Act added specific resolution deadlines for complaints   filed pursuant to Sections 260, 271, and 275. It may be inferred that, because Congress added specific   Ldeadlines in certain sections of the 1996 Act for resolving identified types of complaint actions, and was   silent as to deadlines for resolving complaints arising from other sections of the Act, Congress did not  S -intend to mandate deadlines for resolving all complaints.X { yO^- \ԍXWhile we have previously held that floor statements by members of Congress are not the most probative  yO&- evidence of Congressional intent underlying a statute, it bears noting in this instance that Senator Inouye,  who sponsored the amendments, stated during consideration of the amendments that the Section 208(b)  0resolution deadline "do[es] not apply to all complaints." According to Senator Inouye, "[c]omplaint  investigations that do not concern the lawfulness of a tariff, as when a member of the public complains that  za carrier has not complied with the terms of its tariffs, are not required to be completed within the twelve  zmonth deadline." Senator Inouye also expressed the view that the deadline imposed on Section 208(b)(1)  complaint investigations regarding tariffrelated complaints was intended to be consistent with a similar  0deadline placed on Section 204(a)(2)(A) tariff investigations. 134 Cong. Rec. S15228701 (daily ed. October 8, 1988).(#Ƶ  S -  p$37.` ` We therefore conclude that Section 208(b) applies only to formal complaints which   involve "investigation[s] into the lawfulness of a charge, classification, regulation or practice" contained   in tariffs filed with the Commission. In light of our complete detariffing policy for the domestic interstate,   zinterexchange services of nondominant interexchange carriers and our permissive detariffing policy for  S0-  competitive access providers and competitive LECs,YF06{ yO"- lԍXThe Act provides the Commission with authority to forbear from applying the provisions of Title II,  {O"- including tariffing provisions, subject to certain limited exceptions. See 47 U.S.C.  160; Policy and Rules  Concerning the Interstate, Interexchange Marketplace, Implementation of Section 254(g) of the  {O`$- Communications Act of 1934, as amended, Second Report and Order, 11 FCC Rcd 20730 (1996) ("Tariff  {O*%- Forbearance Order"), recon. Order on Reconsideration, FCC No. 97293, CC Docket No. 9661 (rel. Aug.  {O%- \20, 1997) ("Tariff Recon Order"), stayed sub nom. MCI Telecommunications Corp. v. FCC, consolidated  {O&- yCases 961459, 961477, 971009 (Feb. 13, 1997); Hyperion Telecommunications, Inc., Petition Requesting"&X,-(-('"  {O- Forbearance, CCB/CPD No. 963, Time Warner Communications Petition for Forbearance, CCB/CPD No.  {OZ- 967, Complete Detariffing for Competitive Access Providers and Competitive Local Exchange Carriers, CC  >Docket No. 97146, Memorandum Opinion and Order and Notice of Proposed Rulemaking, FCC 97219  (rel. June 19, 1997). We note that there are two exceptions to our complete detariffing policy, which   permits permissive detariffing for: (1) interstate, domestic, interexchange directdial services which end  users access by dialing the carrier's access code; and (2) during the first fortyfive days of service to new  {OD- /customers that contact the LEC to choose their presubscribed interexchange carrier ("PIC"). See "Tariff  {M-Recon Order."(# however, we conclude that the interpretation should"0Y,-(-(ZZ"   jbe modified to ensure that our forbearance decisions do not eviscerate Congress' intent in establishing the   fivemonth resolution deadline for 208(b)(1) complaints. As noted above, the application of the 5month   208(b)(1) deadline to investigations concerning a carrier's "charge, classification, regulation, or practice"  S-  is triggered by the filing of any such charge, classification, regulation or practice with the Commission.Z { yO - ԍX"The amendments [to Sections 204(a) and 208(b) of the Communications Act of 1934] shall apply only with  respect to any charge, classification, regulation, or practice filed on or after one year after the date of  enactment of this Act." Telecommunications Act of 1996, Pub. L. No. 104104, 110 Stat. 129130,   yOV-402(b)(4). (#   To the extent that our detariffing decisions relieve carriers of any obligations to make such filings, it could   .be argued that complaints about matters not filed with the Commission by carriers are not encompassed   by Section 208(b)(1). We conclude that Congress clearly did not intend this result. We hold, therefore,   that the Section 208(b)(1) deadline shall apply to any complaint about the lawfulness of matters included  S-  in tariffs filed with the Commission, and those matters that would have been included in tariffs but for  S-  @the Commission's forbearance from tariff regulation.V[ { {O-ԍXSee 47 U.S.C.  160.(#V For example, complaints alleging that a   1carrier,through its nontariffed charges, has failed to meet the rate integration or rate averaging  SH -  requirements of Section 254(g) of the ActO\H P { yO8-ԍX47 U.S.C.  254(g).(#O would be subject to the Section 208(b)(1) deadline. Similarly,   complaints contending that a carrier has imposed unjust and unreasonable terms and conditions on the   provision of a service that would have been tarrifed but for our forbearance decision would fall within the  S -requirements of Section 208(b)(1).  S - b C.` ` PreFiling Procedures and Activities   t d  S0-  n%38.` ` In the Notice we asked parties to identify specific prefiling activities available to potential   complainants and defendants that could serve to settle or narrow disputes, or facilitate bthe compilation and   zexchange of relevant documentation or other information prior to the filing of a formal complaint with  S-  Mthe Commission.M]{ {O:"-ԍNotice at 20834.M It has been our experience that there is generally little exchange of information or   jdiscussion of the dispute between parties prior to the filing of a formal complaint and that such exchange  Sj-  of information and discussion of a dispute will often lead to settlement.M^jr{ {O|%-ԍNotice at 20834.M We stated in the Notice that our"j^,-(-(ZZs"   intent was to adopt rules or procedures that would promote actions that could either foster the resolution  S-of disputes prior to filing or narrow the scope of the issues to be resolved in formal complaints.M_{ {O@-ԍNotice at 20834.M  S-X` ` 1. Certification of Settlement Attempts (#  S8-` ` X a.X The Notice (#  S-  &39.` ` We tentatively concluded in the Notice that we should require that a complainant certify   in its complaint that it discussed, or attempted to discuss, in good faith the possibility of settlement with   .the defendant carrier's representative(s) prior to filing the complaint, and, further, that failure to comply  Ss-with this certification requirement would result in dismissal of the complaint.G`sZ{ {Om -ԍNotice at 20835.G  S# -XX` `  b.Comments (#`  S -  '40.` ` Most commenters support the proposal to require a complainant to certify in its complaint   that it discussed, or attempted to discuss, the possibility of settlement with the defendant carrier prior to  S -  0filing its complaint.aZ { {O- ԍXSee, e.g., Association of Telemessaging Services International ("ATSI") Comments at 6; Bell Atlantic  /Comments at 23; BellSouth Comments at 6; NYNEX Comments at 24; Pacific Telesis Group ("PTG") Comments at 4; Sprint Comments at 4; United States Telephone Association ("USTA") Comments at 3.(#ƕ These commenters agree that settlement should be encouraged and that the   certification requirement would provide an additional incentive for parties to settle or narrow disputed  S3-  !issues, thereby resulting in fewer and betterfocused complaints.`bz3{ {O- ԍXSee, e.g., America's Carriers Telecommunications Association ("ACTA") Comments at 2; ATSI Comments  ?at 6; CBT Comments at 5; GST Telecom, Inc. ("GST") Comments at 23; GTE Comments at 2; ICG  \Telecom Group ("ICG") Comments at 3; Joint Reply of Jones Intercable, Inc., Centennial Cellular Corp.,  Texas Cable and Telecommunications Association, Cable Television Association of Georgia, South Carolina  >Cable Television Association, Tennessee Cable Telecommunications Association ("Cable Entities") at 5;  MKMC Telecom, Inc. ("KMC") Comments at 3; MFS Communications Co., Inc. ("MFS") Comments at 2; Southwestern Bell Telephone ("SWBT") Comments at 12; TRA Comments at 10.(#` GST, KMC, MFS, and TRA   jadditionally suggest that answers should be required to contain certification that the parties discussed, or  S-  attempted to discuss, the possibility of settlement prior to the filing of the formal complaint.cP { yO-ԍXGST Comments at 23; KMC Comments at 2; MFS Comments at 2; TRA Comments at 10.(#Ƈ In their  S-  zJoint Reply, the cable entities recommend mirroring the Commission's pole attachment procedures,\d{ {O;"-ԍXSee 47 C.F.R.  1.1404(i).(#\   /which require a complaint to either summarize all steps taken to resolve the dispute prior to filing or  Sk-  Lexplain why no steps were taken.Yekr{ yO}%-ԍXCable Entities Joint Reply at 5.(#Y AT&T opposes such a precertification requirement, arguing that it  SC-  would unduly restrict a party's "unconditional statutory right" to file a Section 208 complaint, citing AT&T"Ce,-(-(ZZ"  S-  Mv. FCCUf{ yOh-ԍX487 F.2d 865 (2d Cir. 1973).(#U as support for its proposition.LgX{ yO-ԍXAT&T Comments at 6.(#L BellSouth disagrees with AT&T, arguing that there is no   {Section 208 right to file a complaint that is not based on facts, and that encouraging precomplaint  S-  ynegotiations will facilitate all parties' understanding of the facts.Ph{ yO:-ԍXBellSouth Reply at 45.(#P Bell Atlantic, NYNEX, and PTG also  S-  disagree with AT&T's argument, stating that AT&T v. FCC deals only with the Commission's prohibition  Sd-  of tariff revisions for certain services and does not deal with Section 208 complaints.yidx{ yO| -ԍXJoint Reply of Bell Atlantic and NYNEX at 34; PTG Reply at 56.(#y CompTel opposes   {the requirement of certification of settlement attempts, arguing that parties already have sufficient   motivation to settle their disputes and that mandatory settlement discussions might force some parties to  S-accept unfavorable settlements.Oj{ yO-ԍXCompTel Comments at 3.(#O  S-`XX` `  c.Discussion (#`  St-  a(41.` ` We conclude that both the complainant and defendant, as part of the complaint and   Z`answer, respectively, must certify that they discussed, or attempted in good faith to discuss, the possibility  S$ -  yof settlement with the opposing party prior to the filing of the complaint.k$ { {O\-ԍXSee Appendix A,  1.721(a)(8); 1.724(h).(#ƀ We agree with GST, KMC,   MFS, and TRA that defendant carriers should be given equal responsibility for exploring settlement   options prior to the filing of a formal complaint. To help facilitate meaningful discussion between   disputing parties, we will adopt a requirement that the complainant mail a certified letter outlining the   allegations that form the basis of the complaint it anticipates filing with the Commission to the defendant   carrier that invites a response within a reasonable period of time. We further conclude that the rule setting   Nforth the certification requirement shall be modeled on the Commission's existing pole attachment  S -  zprocedures in Section 1.1404(i) of the rules.l * { {O-ԍXSee Appendix A,  1.721(a)(8); 1.724(h).(#ƀ Therefore, each settlement certification must include a   brief summary of all steps taken to resolve the dispute prior to filing. If no steps are taken, then each   such certification must state the reason(s) for such failure to conduct settlement discussions. We find that  S-  =mandating settlement discussions prior to filing a formal complaint will result in (1) more disputes being   settled amicably, and (2) the scope of the issues in dispute in formal complaints being narrowed where possible.  S-  )42.` ` We disagree with CompTel's assertion that a rule requiring mandatory settlement   discussions could be used to coerce parties into accepting unfavorable settlements. This rule requires good  S-  faith settlement attempts, not settlement itself. Furthermore, requiring good faith settlement attempts will   not impose undue restrictions on the right of any person to file a complaint with the Commission. We  SV-  kdisagree with AT&T's interpretation of the ruling in AT&T v. FCChmV { {O&-ԍXAT&T v. FCC, 487 F.2d 865 (2d Cir. 1973).(#h as it applies to the issues under"VN m,-(-(ZZ"  S-  >consideration here. In AT&T v. FCC, the court held that the Commission's requirement that a carrier  S-  lobtain special permission, i.e., prior Commission approval, before filing a tariff under Section 203  S-  unlawfully interfered with the carrier's right to file a tariff.qn{ {O-ԍXAT&T v. FCC, 487 F.2d 865, 869.(#q In addition to the fact that AT&T v. FCC  S-  {considers the application of Section 203, not Section 208, the issue considered in AT&T v. FCC is   distinguishable from the issue before us in that the prefiling requirements we impose here only dictate   jthat parties explore settlement possibilities and do not require any Commission approval prior to filing a   ]formal complaint. If settlement attempts are unsuccessful, the complainant is free to file a formal   complaint. The certification requirement will benefit the parties and the Commission by requiring the   parties to discuss the facts and issues in dispute prior to the filing of the complaint. Such requirement   may, therefore, lead to an informal resolution of the dispute or, at the very least, may reduce or clarify   the number and scope of the issues in dispute, consistent with Congress' intent to expedite the resolution of disputes.  S -9XX` ` 2. Neutral Industry Committee (#`  S -` ` X a.The Notice (#  Sa-  #*43.` ` We also sought comment on whether a committee composed of neutral industry 9members   /would serve a needed role or useful purpose in addressing disputes over technical and other business  S-  disputes, before parties bring their disputes to the Commission in the form of formal complaints.MoZ{ {O -ԍNotice at 20835.M We   asked commenters to address the extent to which there would be a need for outside experts to deal with  S-  ztechnical issues that are likely to arise in formal complaints and whether, if such a need exists, the use   of a committee of such experts in the form of a voluntary preliminary alternative dispute resolution  Sq-("ADR") procedure would expedite the resolution of complaintsMpq{ {O-ԍNotice at 20835.M  S!- ` ` X b.XComments (#   S-  +44.` ` Most commenters oppose the creation of an industry committee.q~{ yO- ԍXAT&T Comments at 4 n.3; CBT Comments at 6; GST Comments at 3; GTE Comments at 3; KMC Comments at 3; MFS Comments at 3; PTG Comments at 56; TRA Comments at 1011.(# Several parties argue  S-  jthat it would be impossible to construct a neutral committee,r{ yO!- MԍXCBT Comments at 6; GST Comments at 3; KMC Comments at 3; MFS Comments at 3; PTG Comments at 56; TRA Comments at 1011.(#Ƽ PTG and TRA argue that the use of such  S-  a committee would delay the resolution of important marketplace issues,ds. { yOO$-ԍXPTG Comments at 56; TRA Comments at 1011.(#d and AT&T and GTE argue that  SY-  the committee would lack the expertise to handle a wide variety of disputes.ctY { yO&-ԍXAT&T Comments at 4 n.3; GTE Comments at 3.(#c CBT, Communications"YN t,-(-(ZZ"   iand Energy Dispute Resolution Associates ("CEDRA"), and NYNEX contend that such options are already  S-  /available to parties.u { yO@- \ԍXCBT Comments at 6; CEDRA Comments at 56; NYNEX Comments at 4. NYNEX states, for example,  that carriers already have access to industry forums such as the Carrier Liaison Committee and the Network  Interconnection/Interoperability Forum to discuss technical issues and develop industry standards. NYNEX Comments at 4.(#ƫ NYNEX additionally states that complaints before the Commission typically  S-  involve disputes between individual companies, rather than broad issues affecting the industry.Mv{ yO-ԍXNYNEX Comments at 4.(#M Some   commenters, however, support the proposal. ATSI, BellSouth, SWBT, and USTA support the use of an  S`-  /industry committee to assist in resolving technical and business disputes.w`@{ yO@ -ԍXATSI Comments at 7; BellSouth Comments at 78; SWBT Comments at 2; USTA Comments at 6.(#Ə BellSouth added that an  S8-  industry committee could be used in conjunction with ADR mechanisms.Sx8{ yO -ԍXBellSouth Comments at 78.(#S ATSI asserts that committee   proceedings would have to be completed within clearly established deadlines to prevent delay in resolving   disputes involving competitive issues and to ensure compliance with the statutory complaint resolution  S-  deadlines.Ly` { yO-ԍXATSI Comments at 7.(#L In addition, GST, KMC, and MFS suggest permitting the parties and the Commission to   jutilize such a committee during the complaint process, as well as at the prefiling stage, to resolve certain  Sp-factual issues.szp { yO-ԍXGST Comments at 4; KMC Comments at 3; MFS Comments at 34.(#s  S -XX` `  c.Discussion (#`  S -  ,45.` ` We decline to establish a committee of neutral industry members to resolve disputes over   technical and other business issues, before parties file such disputes with the Commission as formal  S -  complaints. We note that the majority of commenters oppose this proposal.{ { yO- ԍXAT&T Comments at 4 n.3; CBT Comments at 6; GST Comments at 3; GTE Comments at 3; KMC Comments at 3; MFS Comments at 3; PTG Comments at 56; TRA Comments at 1011.(# Several factors weigh   against establishing such a committee. First, because the committee's decisions would not be binding on   jthe Commission, it is possible that the committee and the Commission might rule differently on identical   issues. The usefulness of committee decisions to resolve disputes would be diminished by such   uncertainty, as a losing party would have little incentive to accept the committee's recommendation.   Second, we agree with commenters that it would be difficult to establish a standing committee with   sufficient expertise to resolve a range of technical and business issues because of the breadth of knowledge   yand expertise that would be required. Third, we agree with commenters that it would be administratively   burdensome to assemble a new committee for each conflict parties sought to submit to such committee.   Finally, we agree with the commenters who argue that the potential for conflicts of interest among the committee members is too great to be able to provide a guarantee of neutrality. "{,-(-(ZZ$"Ԍ S- y#/W 9 y#/W  ` ` 3. Additional Commenters' Suggestions (#`  S-XX` `  a.The Notice (#  Sa-  -46.` ` In the Notice, we invited commenters to suggest additional prefiling requirements or y#/W 9 y#/W    procedures to help settle or narrow disputes, or facilitate the compilation and exchange of relevant  S-documentation or other information.U|{ {O{-ԍXNotice at 20835.(#U  S-XX` `  b.Comments (#`  Ss-  B.47.` ` ATSI, NYNEX, and USTA suggest that formal ADR efforts be made a prerequisite to  SK -  filing a complaint,u}K Z{ yOE -ԍXATSI Comments at 7; NYNEX Comments at 3; USTA Comments at 6.(#u while MCI and Sprint oppose such a proposal.g~K { {O-ԍXSee MCI Reply at 56; Sprint Reply at 4.(#g MCI, ICG, and Sprint suggest that   =parties be required to begin their information exchange before a complaint is filed, in order to prepare for  S -  \the rapid pace of the complaint process.s |{ yO-ԍXMCI Comments at 68; ICG Comments at 5; Sprint Reply at 4.(#s PTG opposes this suggestion, arguing that requiring such  S -  {information exchanges would lead to fishing expeditions and raise confidentiality concerns.J { yO-ԍXPTG Reply at 34.(#J Bell   ZAtlantic proposes that a potential complainant be required to provide the defendant carrier with a statement   of its claim and specify documents and information that it believes would be material to the resolution   of the dispute, and that the carrier be required to respond in full within a reasonable period of time before  S3-  a complaint is filed.W3{ yOo-ԍXBell Atlantic Comments at 23.(#W Similarly, CEDRA and BellSouth suggest that complainants be required to serve   advance copies of their complaints on defendant carriers prior to filing such complaints with the  S-  yCommission.c, { yO-ԍXCEDRA Comments at 2; BellSouth Reply at 7.(#c Finally, CompTel, Nextlink and various cable entities suggest that the Commission offer   \binding arbitration or mediation as an alternative to formal complaints, arguing that Commission staff  S-would be more persuasive and knowledgeable than outside mediators or arbitrators. { yO-ԍXComptel Comments at 45; Nextlink Comments at 25; Cable Entities Joint Reply at 5 n.3.(#Ɛ  SC-XX` `  c.Discussion (#`  S-  /48.` ` We decline to adopt these proposals because, for the most part, they raise potential   problems that would outweigh their potential benefits. We reject suggestions that would impose rigid   requirements for prefiling activities. We find that these proposals could either stifle the parties' ability   =to develop creative solutions to their differences or delay unnecessarily the filing of complaints, or both.   >For example, we agree with MCI and Sprint that requiring formal ADR efforts prior to the filing of a"SL ,-(-(ZZ"   formal complaint could permit defendant carriers to delay the filing of formal complaints to the detriment   of customers and competitors alike. For the same reason, we reject the suggestions by MCI, ICG, and   Sprint that we should mandate the exchange of documents and materials by potential complainants and   defendant carriers prior to the filing of a formal complaint. Although the proposals of Bell Atlantic,   BellSouth, and CEDRA, to require the exchange of specific information identifying claims and key facts   in advance of the filing of the formal complaint, would promote prefiling discussions, we conclude that   parties should be afforded the widest possible latitude in conducting their settlement efforts and not be   subjected to rigid requirements. We also reject the proposals of CompTel, Nextlink, and the cable entities   to require the Commission to arbitrate or mediate disputes at the request of the disputing parties as an   alternative to formal complaints. Such a requirement would unnecessarily tax the Commission's resources   when there are many qualified ADR experts outside the Commission. We note that Commission staff will   work with industry members and formal complaint parties to resolve disputes informally, both before and   after formal complaints have been filed. We see little benefit, however, in requiring the staff to conduct such mediation or arbitration efforts in all cases.  S - D.` ` Service   SX-  049.` ` Under Section 208 of the Act and the Commission's existing complaint rules, the staff is  S0-  yresponsible for serving formal complaints on defendant carriers.q0{ {O-ԍXSee 47 U.S.C.  208(a); 47 C.F.R.  1.47(b).(#q Currently, all formal complaints must   ]be initially filed with the Mellon Bank in Pittsburgh, Pennsylvania; forwarded by the Bank to the   Commission's Secretary; and then distributed to the Common Carrier Bureau. The Common Carrier   Bureau then forwards complaints against common carriers and complaints against international   telecommunications providers to the Common Carrier Bureau's Enforcement Division; complaints against  Sh-  wireless carriers are forwarded to the Wireless Telecommunications Bureau. hZ{ yOb- ԍXWe note that the Common Carrier Bureau coordinates extensively with the International Bureau to process  Pinternational telecommunications complaints. The Common Carrier Bureau and the Wireless  Telecommunications Bureau utilize the same complaint procedures detailed in Sections 1.7201.735 of the Commission's rules to process complaints. (# As a result, ten days or   more may pass before the staff receives official copies of a complaint, reviews it for minimum compliance   with the rules, and serves it on the defendant carrier(s). It has been common for a defendant carrier to   receive a complaint twenty days after it was filed with the Commission. Pleadings filed subsequent to   ythe complaint are currently served by regular U.S. mail, which may delay actual receipt of such pleadings  S-  -from three days to a week. Because of the new ninety to 120day statutory deadlines, the Notice proposed   to eliminate delays associated with the current filing and service procedures by streamlining the service  SR-process.URB{ {O4!-ԍXNotice at 20835.(#U "*,-(-(ZZl"Ԍ S- y#/W 9 y#/W X` ` 1. Personal Service of Formal Complaints on Defendants (#  S-` ` X a. The Notice (#  Sa-  C150.` ` In the Notice we sought comment on our proposals to modify the service of formal y#/W 9 y#/W   S;-  complaints.S;{ {O-ԍNotice at 20835.S We proposed to authorize or require a complainant to effect service simultaneously on the   !following persons: the defendant carrier, the Commission, and the appropriate staff office at the  S-  Commission, i.e., the Chief, Formal Complaints and Investigations Branch, Enforcement Division,   Common Carrier Bureau; the Chief, Compliance and Litigation Branch, Enforcement and Consumer   jInformation Division, Wireless Telecommunications Bureau; or the Chief, Telecommunications Division,  Su-  LInternational Bureau.\uZ{ {Oo -ԍNotice at 2083536.\ With regard to service on the defendant, we proposed that a complainant would  SM -  =personally serve the complaint on an agent designated by the defendant carrier to receive such service.SM { {O-ԍNotice at 20835.S   We proposed that the answer period would begin to run once the complaint has been served by the  S -complainant on the defendant.G ~{ {O-ԍNotice at 20835.G  S -  251.` ` We also noted that requiring complainants to serve complaints directly on defendants   would eliminate the staff's initial review of the complaint prior to the defendant's receipt of the  S]-  Lcomplaint.P]{ {O -ԍNotice at 2083738.P To alleviate concerns about service of deficient complaints, the Notice proposed to require   \that parties submit a completed checklist or "intake" form with each copy of the formal complaint to   indicate: (1) that the complaint satisfies minimum format and content requirements; (2) that the complaint   meets the various threshold requirements for stating a cause of action under the Act and the Commission's  S-  Krules; and (3) the statutory provisions allegedly violated and any applicable statutory resolution deadline.P{ {O-ԍNotice at 2083738.P   We based this proposal on our belief that such an intake form could be a useful tool both to speed the   [preparation and filing of complaints and to avoid or reduce the time and resources involved in processing  SG-  Lprocedurally defective or substantively insufficient complaints.PG4 { {O -ԍNotice at 2083738.P We further noted that the intake form   ycould serve another useful purpose, by quickly identifying for the staff and defendant carrier the relevant  S-statutory provisions and any associated statutory time constraints.P { {O]#-ԍNotice at 2083738.P "X ,-(-(ZZ3"Ԍ S- y#/W  y#/W XX` `  b.Comments (#`  S-  B352.` ` The commenters generally support the proposal to require parties to serve complaints y#/W  y#/W    [simultaneously on defendants, the Office of the Secretary, and the Bureau responsible for processing the  S`-  Mcomplaint.5Z`{ {O- ԍXSee, e.g., ACTA Comments at 12; ATSI Comments at 8; GST Comments at 4; ICG Comments at 11;  KMC Comments at 46; MCI Comments at 1112; NYNEX Comments at 45; PTG Comments at 67; SWBT Comments at 23.(#5 BellSouth, GTE, and CBT, however, are concerned that defendants may be required to   respond to deficient complaints if the Commission eliminates its practice of reviewing complaints prior  S-  to serving them on defendants.x{ yO -ԍXBellSouth Comments at 9; GTE Comments at 34; CBT Comments at 6.(#x By contrast, MCI argues that Commission review of a complaint is  S-  unnecessary because a defendant would undoubtedly raise the issue if a complaint was deficient.Lz{ yO -ԍXMCI Comments at 12.(#L   {CompTel suggests that the Commission send the defendant a notice of receipt of the complaint to  S-  safeguard against faulty service.O { yOB-ԍXCompTel Comments at 5.(#O BellSouth states that Section 208(a) mandates that only the   jCommission may serve complaints on defendants, and suggests that the complainant serve the defendant   with a copy of the complaint and notice of intent to file prior to the filing of the complaint with the  S -  Commission.R { yO-ԍXBellSouth Comments at 10.(#R AT&T and NYNEX state that, while Section 208(a) does require the Commission to serve   complaints on defendants, this requirement is fulfilled by allowing complainants to serve complaints on  S -  defendants as agents of the Commission for that limited purpose only.d R { yO-ԍXAT&T Comments at 21; NYNEX Comments at 45.(#d PTG asks the Commission to  S -clarify that personal service is required for the complaint.M { yO*-ԍXPTG Comments at 67.(#M  SX-  ~453.` ` Almost all of the commenters, including ATSI, BellSouth, CBT, CompTel, GST, GTE,   KMC, MFS, and TRA, support the proposal to require complainants to submit a completed checklist or  S-  "intake" form with each copy of the formal complaint.r { yO- ԍXATSI Comments at 8; BellSouth Comments at 9; CBT Comments at 7; CompTel Comments at 5; GST Comments at 5; KMC Comments at 5; TRA Comments at 12.(# ATSI stated that using "checkoff boxes" to   clearly indicate the specific complaint category utilized would assist all parties and the Commission in  S-  determining quickly the special standards and applicable deadlines.L{ yO""-ԍXATSI Comments at 8.(#L BellSouth additionally suggests that  S-  the form include a waiver of the Section 271(d)(6)(B) 90day resolution deadline.RZ{ yO$-ԍXBellSouth Comments at 10.(#R MCI argues that this",-(-(ZZ"   form would be useless because a party filing a defective complaint would be unlikely to complete this  S-form correctly.L{ yO@-ԍXMCI Comments at 11.(#L  S-XX` `  c.Discussion (#`  S8-  4554.` ` We conclude that complainants shall be required to effect personal service8X{ yO0- jԍXPersonal service requires that the complainant serve the complaint by hand delivery on one of the defendant  {O-carrier's registered agents for service of process. See Appendix A,  1.735(d).(# of the  S-  complaint{ yOb - .ԍXWe clarify that all references to the complaint include the complaint and all supporting documentation that is required to be filed with the complaint.(# on the defendant carrier/designated agent simultaneously with the filing of the complaint with   the Commission's Secretary, the Chief of the division or branch responsible for handling the complaint  S-  within the Bureau responsible for handling the complaint, and the Mellon Bank.b { {Oj-ԍXSee Appendix A,  1.735(b), (d).(#b The complainant shall   serve two copies of the complaint with the Chief of the division or branch responsible for handling the  Sp-  .complaint within the Bureau responsible for handling the complaint.6 p{ yO-ԍXCommission rule 1.735(b)(2)(4), adopted in this Report and Order, provides as follows: (#  yO<- )XX` `  (2)If the complaint is filed against a carrier concerning matters within the  {O-  2responsibility of the Common Carrier Bureau (see 47 C.F.R  0.291), serve two copies on the   Chief, Formal Complaints and Investigations Branch, Enforcement Division, Common Carrier Bureau; (#`  yO^- ` `  (3)If the complaint is filed against a wireless telecommunications carrier concerning  {O&-  _matters within the responsibility of the Wireless Telecommunications Bureau (see 47 C.F.R.    0.331), serve two copies on the Chief, Compliance and Litigation Branch, Enforcement and Consumer Information Division, Wireless Telecommunications Bureau;(#`  yO- )` `  (4)If the complaint is filed against a carrier concerning matters within the  {OH-  #responsibility of the International Bureau (see 47 C.F.R.  0.261), serve a copy on the Chief,   Telecommunications Division, International Bureau, and serve two copies on the Chief, Formal Complaints and Investigations Branch, Enforcement Division, Common Carrier Bureau.(#`  {Oj-See Appendix A,  1.735(b)(2)(4).6 The Chief will then forward one   of those copies to the defendant, in compliance with the mandate in Section 208(a) that complaints "shall  S -  zbe forwarded by the Commission" to the defendant.] { {O!-ԍXSee Appendix A,  1.735(e).(#] The allowable time period for filing an answer   begins to run on the date the complainant serves the complaint on the defendant. Because the Common   Carrier Bureau coordinates with the International Bureau to handle international telecommunications   ^complaints, any formal complaint that is filed with the International Bureau must also be filed   simultaneously with the Chief, Formal Complaints Branch, Enforcement Division, Common Carrier" ~,-(-(ZZj"  S-  Bureau.c{ {Oh-ԍXSee Appendix A,  1.735(b).(#c Requiring service of the complaint on the defendant carrier simultaneously with filing the   complaint with the Commission will enable the parties and the Commission to begin prompt resolution   of the complaint, by eliminating delays that existed under the former rules. This requirement satisfies the Commission's goal of expediting the processing of formal complaints.  S8-  P655.` ` After consideration of commenters' concerns regarding notice to the defendant in the event   of defective service of the complaint, we conclude that the Commission will send each defendant notice   of receipt of the complaint as a precaution against defective service. Upon receipt of the complaint, the   Commission shall promptly send notice of receipt of the complaint by facsimile transmission to the  S-  defendant.]Z{ {O -ԍXSee Appendix A,  1.735(e).(#] In addition to mailing a copy of the complaint to the defendant, the staff will send to all  Sp-  [parties a schedule detailing the date the answer is due and the date of the initial status conference.]p{ {O -ԍXSee Appendix A,  1.735(e).(#] The   date of service of the formal complaint upon the defendant shall be presumed to be the same date as   [service on the Commission. Where, however, a complainant fails to properly serve the complaint on the defendant, the complaint will be dismissed without prejudice.  S -  756.` ` We further conclude that the complainant must file the complaint, along with the   appropriate fee, with the Mellon Bank on the same day that it serves the complaint on the Commission  SX-  and the defendant.iX~{ {Ov-ԍXSee Appendix A,  1.735(b).(#i Although this requirement was not specifically proposed in the Notice, we find that   requiring the complaint to be filed with the Mellon Bank on the same day as service on the defendant and  S -  ythe Commission is a natural extension of the proposal in the Notice to require simultaneous service of the   complaint on the defendant and the Commission. Such requirement is further justified by the fact that   the date on which the complaint is filed with the Mellon Bank is the official commencement date of the   complaint with the Commission. Thus, the date on which the complaint is filed with the Mellon Bank   is the date on which any statutory deadlines begin to run and timely prosecution of such complaints   /requires service on the defendant at the earliest date possible. Additionally, requiring delivery of the   complaint and fee payment to the Mellon Bank by the day of service of the complaint on the Commission   and defendant will help the Commission to determine quickly whether the fee has been properly paid.   We also require the complainant to attach to each copy of the intake form, a photocopy of its fee payment  S-  (check, etc.) as well as a certificate of service.n{ {OT -ԍXSee Appendix A,  1.721(a)(13), (a)(14).(#n Attachment of a copy of the fee payment will provide   some assurance to the Commission and a defendant that payment was made. Where a fee is not properly   paid, the Commission will notify both parties promptly that the complaint has been dismissed without prejudice.  S-  857.` ` BellSouth, GTE, and CBT raise some valid concerns about the possibility of defendants   having to respond to deficient complaints under our new service requirements. To address these concerns,   we require a complainant to submit a completed intake form with its formal complaint to indicate that the",-(-(ZZ"  S-  complaint satisfies the procedural and substantive requirements under the Act and our rules.{ {Oh- ԍXSee Appendix A,  1.721(a)(12). A copy of the complaint intake form is included in Exhibit B to this Report and Order.(# The   [completed intake form shall identify all relevant statutory provisions, any relevant procedural history of   the case, and, in the case of a Section 271(d)(6)(B) complaint, whether the complainant desires to waive  S-  the ninetyday resolution deadline.\"{ {OJ-ԍXSee Appendix B, FCC Form 485.(#\ We disagree with MCI's assertion that a complainant who files a   ydefective complaint will probably be unable to fill out the intake form properly. Rather, we find that the   \intake form will serve as a checklist to guide complainants who may be unfamiliar with the necessary   .components of a formal complaint and in that way reduce the number of defective complaints filed. We   [conclude further that this requirement will permit the Commission to eliminate the delay associated with   {the initial review of a complaint. To the extent that frivolous complaints are filed, the intake form   requirement will assist in weeding out such complaints prior to Commission review. The form will  Sp-  identify for the Commission staff any relevant statutory provisions and associated deadlines.\p{ {O-ԍXSee Appendix B, FCC Form 485.(#\   \Furthermore, the staff will be alerted if there is relevant procedural history that will require review of   related nonCommission records by the staff. We note that a defendant is not relieved of its obligation   jto file and serve its answer on time by the fact that a complainant failed to correctly complete the intake form.  S -  R958.` ` In addition, we reject NAD's proposal to permit service of complaints by facsimile   transmission because we conclude that service of the complaint must be accomplished in the most reliable   kmanner possible. Because we are requiring the defendant to submit its answer within twenty days of   receipt of the complaint, any delay or uncertainty in the receipt of the complaint and associated documents through facsimile transmission could unduly infringe on the defendant's due process rights.  y#/W   S-X` ` 2. Expediting Service Generally (#  S@-XX` `  a.The Notice (#  S-  S-  :59.` ` In the Notice, we proposed to require service of all documents filed subsequent to the  S-  complaint (answer, motions, briefs, etc.) by overnight delivery.UF{ {O-ԍXNotice at 20838.(#U Alternatively, parties would be   permitted to serve pleadings by facsimile transmission, to be followed by hard copies sent by regular mail  S{-delivery.U{{ {O!-ԍXNotice at 20838.(#U  S+-  3;60.` ` We further proposed to establish and maintain an electronic directory, available on the   LInternet, of agents authorized to receive service of complaints on behalf of carriers that are subject to the  S-  provisions of the Act and of the relevant Commission personnel who must be served.Pj { {O&-ԍNotice at 2083637.P We noted that" ,-(-(ZZL"   Section 413 of the Act requires all carriers subject to the Act to designate in writing an agent in the  S-  District of Columbia for service of all process.P{ {O@-ԍNotice at 2083637.P The proposed directory would list, in addition to the   name and address of the agent, at least one of the following: his or her telephone or voicemail number,  S-  facsimile number, or Internet email address.PZ{ {O-ԍNotice at 2083637.P We sought comment on this proposal and on what  S`-information should be included within the service directory.P`{ {O-ԍNotice at 2083637.P  S-  <61.` ` Finally, we recognized that the practice of routing formal complaints against wireless   telecommunications providers was unwieldy and timeconsuming. We noted that under the current rules,   wireless complaints are routed from the Common Carrier Bureau lock box at the Mellon Bank in   Pittsburgh to the Commission's Secretary, who forwards the complaint to the Formal Complaints and   Investigations Branch of the Common Carrier Bureau's Enforcement Division, which then reviews and  SH -  Lforwards the complaints to the Wireless Telecommunications Bureau.PH ~{ {Of-ԍNotice at 2083536.P Therefore, we sought comment   on our proposal to revise our rules to provide for a separate lock box at the Mellon Bank for the receipt  S -of complaints against wireless telecommunications service providers. { {O-ԍXNotice at 2083536. See 47 C.F.R.  1.1105 (1)(c).(#Ƈ  S -XX` ` X b.Comments (#  SX-  =62.` ` Commenters strongly support these proposals.X{ {O- ԍXSee, e.g., ACTA Comments at 34; AT&T Comments at 4; NYNEX Comments at 45; USTA Comments at 6.(#Ƽ BellSouth suggests that facsimile service  S0-  \would be facilitated by requiring pleading signature blocks to include facsimile and phone numbers.R0 { yO-ԍXBellSouth Comments at 11.(#R  S-  zSWBT additionally suggests that service include delivery by certified mail.N { yO4-ԍXSWBT Comments at 23.(#N ICG argues that service  S-  should be by hand delivery or overnight mail only.L{ yO -ԍXICG Comments at 11.(#L GST, KMC, MFS, and NAD suggest permitting   service by Internet, with NAD particularly encouraging Internet or facsimile service of complaints and  S-  related documents to facilitate service by consumers with disabilities.{ yO#-ԍXGST Comments at 5; KMC Comments at 5; MFS Comments at 5; NAD Reply at 5.(#Ɓ CBT opposes service by Internet  Sh-  because of technical difficulties and problems with verification.Kh<{ yOD&-ԍXCBT Comments at 7.(#K CBT asks the Commission to clarify   that it will take responsibility for updating the electronic directory and make allowances for improper"@,-(-(ZZ"  S-  kservice due to mistakes in the directory.K{ yOh-ԍXCBT Comments at 7.(#K ACTA suggests that carriers be able to designate someone   =other than an agent located in the District of Columbia for receipt of service, arguing that limiting service   to what in many cases will be an "artificial agent" in the District of Columbia is inefficient in light of the  S-  availability of national overnight delivery.NX{ yO-ԍXACTA Comments at 34.(#N MCI suggests that a paper directory of service agents be kept  S`-in the Secretary's office for those parties lacking Internet access.O`{ yO-ԍXMCI Comments at 1112.(#O  S-`XX` `  c.Discussion (#`  S-  >63.` ` We conclude that parties must serve documents or pleadings filed subsequent to the   0complaint by either hand delivery, overnight delivery, or facsimile transmission followed by `mail  Sp-  delivery.]px{ {O-ԍXSee Appendix A,  1.735(f).(#] Any facsimile transmission or hand delivery must be completed by 5:30 p.m., local time of  SH -  the recipient, in order to be considered served on the date of receipt.`H { {O-ԍXSee Appendix A,  1.735(f)(3).(#` Service by overnight delivery will   [be deemed served the business day following the date it is accepted for overnight delivery by a reputable  S -  overnight delivery service.X { {O4-ԍSee Appendix A,  1.735(f)(2).X Although we are permitting service of pleadings subsequent to the complaint   Mto be by facsimile transmission, we also require that facsimile service be accompanied by mailed hard   copies to alleviate the effects of possible faulty facsimile transmission. These requirements will ensure  S -  timely and verifiable service. To facilitate facsimile delivery, we require pleading signature blocks to  SX-include facsimile and telephone numbers, as suggested by Bellsouth.]X. { {O&-ԍXSee Appendix A,  1.720(j).(#]  S-  ?64.` ` We decline to authorize service by Internet at this time because we have received   insufficient comments on the issue, given the significance of permitting electronic filing or service of   zcomplaint pleadings. We may revisit this issue at a later date, following our consideration of possible  S-procedures for the electronic filing of documents in rulemaking proceedings in GC Docket 97113. { {O- ԍXSee Electronic Filing of Documents in Rulemaking Proceedings, Notice of Proposed Rulemaking, 12 FCC Rcd 5150 (1997).(#  S@-  @65.` ` We also reject SWBT's proposal to deliver pleadings by certified mail. Although SWBT   ypresumably offered this suggestion to improve verification of service rather than speed of service, we did  S-  not seek comment on verification procedures in the Notice because we have not found verification of service to be a significant problem. ",-(-(ZZ"Ԍ S-  pA66.` ` Although we considered establishing an electronic directory of agents designated by  S-  kcarriers to receive service of process, we decline to establish such a directory at this time.h{ {O@-ԍXSee Appendix A,  1.47(h).(#h We have   lconcluded that more review is needed to determine the most efficient means for collecting the data   necessary to establish such a directory. This data collection may be combined with other collections of   jdata from common carriers by the Commission in the future. The Commission intends to reconsider this issue in conjunction with streamlining its other data collection procedures.  S-  B67.` ` We recognize the need to provide complainants with the information necessary to effect  S-  personal service on defendant carriers as required by our rules.UZ{ {O -ԍSee Appendix A,  1.735(d).U Accordingly, the Commission will   provide access to a listing of agents designated by carriers to receive service of process in the Office of   jthe Commission Secretary. In order to establish this listing, all common carriers are required to designate   \service agents within the District of Columbia, although they may additionally identify an alternative  S -  service agent outside the District of Columbia. { {O- lԍXSee Appendix A,  1.47(h). We note that common carriers are required by Section 413 of the Act to provide this information to the Commission. 47 U.S.C.  413.(# For each designated agent for service of process, each   carrier is required to identify its name, address, telephone or voicemail number, facsimile number, and  S -  Internet email address if available.h F{ {O-ԍXSee Appendix A,  1.47(h).(#h In addition, the carrier shall identify any other names by which it   =is known or under which it does business, and, if the carrier is an affiliated company, its parent, holding,  S -  or management company.h { {O-ԍXSee Appendix A,  1.47(h).(#h This information shall be provided to the Commission by filing it with the  SX-  Formal Complaints and Investigations Branch of the Common Carrier Bureau. Xj { yOb- kԍXWe encourage common carrier trade associations, such as ACTA, CompTel, TRA, and USTA, to file this  information on behalf of their members if they so desire. The Commission would consider such group  submissions full compliance with this requirement and would appreciate receiving such submissions both in hard copy and on a computer disk.(#ƿ Parties are required to   notify the Commission within one week of any changes in their information. We note that ACTA's   zproposal to permit designation of service agents outside of the District of Columbia was based on the   !incorrect premise that overnight delivery would fulfill our requirement of having the complainant   personally serve the complaint on the defendant. It will not. Only hand delivery constitutes personal   service for the purposes of our service requirement. We note, however, that the complainant is not   required to hand deliver the complaint to the Commission Secretary, the Chief of the division or branch   responsible for handling the complaint within the Bureau responsible for handling the complaint, or the Mellon Bank.  S-  pC68.` ` We establish a separate lock box at the Mellon Bank in Pittsburgh for the receipt of  S-  complaints against wireless telecommunications service providers.aR { {O&-ԍXSee Appendix A,  1.1105(1)(d).(#a Currently, all formal complaints" ,-(-(ZZ"   against common carriers, including Wireless Telecommunications Bureau complaints and International   =Bureau complaints, are filed in the lockbox of the Common Carrier Bureau at the Mellon Bank. Because   1the Common Carrier Bureau coordinates with the International Bureau to handle international  S-  telecommunications complaints, filing the International Bureau's complaints in the Common Carrier   >Bureau's lockbox does not delay the complaint process. Providing the Wireless Telecommunications   Bureau with its own lockbox, however, will both expedite the delivery of the complaint and verification   of fee payment to the Wireless Telecommunications Bureau, and relieve the Common Carrier Bureau of   the responsibility of reviewing wireless complaints for routing to the Wireless Telecommunications Bureau.  Sp- E.` ` Format and Content Requirements  S -  3D69.` ` The short resolution deadlines contained in the Act place greater burdens on parties to   provide facts and legal arguments in their respective complaints and answers to support or defend against   /allegations of misconduct by common carriers. Similarly, the short resolution deadlines place greater demands on the Commission and its staff to expedite the review and disposition of these complaints.  SX-  5E70.` ` The Commission's rules have always required factbased pleadings. That is, all   ycomplaints, answers and related pleadings are required to contain complete statements of fact, supported  S-  .by relevant documentation and affidavits.f{ {Op-ԍXSee 47 C.F.R.  1.720(b), (c). (#f In actual practice, however, many parties file what amount   to "notice" pleadings similar to filings that would be made in federal district court. Both complainants   ]and defendants have placed substantial reliance on selfexecuting discovery and additional briefing opportunities to present their respective claims and defenses to the Commission.  S@-  3F71.` ` A principal goal of this rulemaking that was set forth in the Notice was to improve the   \utility and content of the complaint and answer by requiring complainants and defendants to exercise   diligence in compiling and submitting full legal and factual support in their initial filings with the  S-  Commission. The proposals in the Notice were designed to promote factbased pleadings and to shift the   focus of factfinding away from costly, timeconsuming discovery and towards the prefiling and initial complaint and answer periods.  S,-X` ` 1. Support and Documentation of Pleadings (#   S-XX` `  a.The Notice (#  S-  $G72.` ` In the Notice, we proposed to require that any party to a formal complaint proceeding   must, in its complaint, answer, or any other pleading required during the complaint process, include full   /statements of relevant facts and attach to such pleadings supporting documentation and affidavits of  S -  persons attesting to the accuracy of the facts stated in the pleadings.a Z{ {O$-ԍXNotice at 20839.(#a This would effectively prohibit   defendants from making general denials in their answers. We proposed to require a complainant to   append to its complaint documents and other materials to support the underlying allegations and requests   =for relief, and tentatively concluded that failure to append such documentation would result in summary""!,-(-(ZZ'$"  S-  dismissal of the complaint.g{ {Oh-ԍXNotice at 20839.(#g Although our rules already required each complainant to provide a complete   statement of the facts and description of the nature of the alleged violation, we tentatively concluded that   zwe should require more specifically that a complainant include a detailed explanation of the manner in   Lwhich a defendant has violated the Act, Commission order, or Commission rule in question in the formal  S`-  zcomplaint.d`Z{ {OZ-ԍXNotice at 2083940.(#d Such a rule, for example, would require a complainant alleging that a BOC has ceased to   meet any of the conditions that were required for approval to provide interLATA services pursuant to  S-  Section 271(c)(2)(B) of the Act_{ {O -ԍXSee 47 U.S.C.  271(c)(2)(B).(#_ to include in its complaint a detailed explanation of the manner in   kwhich the defendant BOC has ceased to meet such condition or conditions, along with any associated  S-  .documentation.`~{ {O -ԍXSee Appendix A,  1.721(a)(5).(#` The Notice also sought comment on whether we should prohibit complaints that rely   ?solely on assertions based on "information and belief." We stated that, while assertions based on   information and belief may not be useful in deciding on the merits of a complaint, prohibiting such   \assertions might inhibit a complainant's ability to present claims of unlawful behavior against carriers  S" -under applicable provisions of the Act.U" { {O-ԍXNotice at 20839.(#U  S -  AH73.` ` We proposed to require the complaint, answer, and any authorized reply include two sets   of additional information: (1) the name, address, and telephone number of each individual likely to have   ?discoverable information relevant to the disputed facts alleged with particularity in the pleadings,   identifying the subjects of information; and (2) a copy of, or a description by category and location of,   all documents, data compilations, and tangible things in the possession, custody, or control of the party  S -  that are relevant to the disputed facts alleged with particularity in the pleadings.v { {OL-ԍXNotice at 2084041.(#v We noted that this   proposal, which would enable the Commission and parties to identify quickly sources of information,  S-  [comported with an analogous requirement under the Federal Rules of Civil Procedure.d4 { {O-ԍXSee Fed. R. Civ. P. 26(a)(1)(A), (B).(#d We also sought   comment on what benefits, if any, would be realized by the parties or the Commission by requiring the  Sj-  identified relevant documents to be filed with the Commission along with the complaint and answers.Uj { {O -ԍXNotice at 20845.(#U  y#/W   S-  RI74.` ` The Notice proposed to require parties to append copies of relevant tariffs or tariff   .provisions to their complaints, answers, and replies, noting that the current rules only encourage parties  S-  <to append such tariffs.X { {O%-ԍXNotice at 20841; cf. 47 C.F.R.  1.720(h) (encourages parties to provide copies of relevant tariffs).(# The Notice also proposed to modify the rules to include expressly pleadings filed"",-(-(ZZ3"   zsolely to effect delay in the prosecution or disposition of a complaint as filings for improper purpose  S-within the meaning of Section 1.734 of our rules.U{ {O@-ԍXNotice at 20842.(#U  S-XX` `  b.Comments (#`  S8-  PJ75.` ` Most commenters, including AT&T, BellSouth and TRA, strongly support the proposals  S-  to require all pleadings to include complete facts and documentation.Z{ {O -ԍXSee, e.g., AT&T Comments at 56; BellSouth Comments at 12; TRA Comments at 13.(#Ɠ AT&T states that supporting  S-  affidavits and documentation are "critical to understanding the parties' positions on the matters at issue."N{ yOt -ԍXAT&T Comments at 56.(#N  S-  ]NYNEX agrees with the observation in the Notice that "[t]ypically, complainants file 'bare bones'   =complaints with numerous allegations, but with little or no documentation" and that the proposal would   allow the Commission to "process complaints more quickly, since it would have access to the relevant  SJ -  information from the beginning[.]"OJ |{ yOf-ԍXNYNEX Comments at 56.(#O BellSouth suggests that the Commission impose requirements similar   to its rules for pole attachment complaints which require detailed, factbased complaints, supported by  S -extensive documentation and verifications detailing the alleged violations.S { yO-ԍXBellSouth Comments at 12.(#S  S -  K76.` ` Several commenters, including CBT, NYNEX, and PTG, only support our proposals  S -  zregarding complaints, and oppose our proposals regarding answers.z { yO-ԍXCBT Comments at 89; NYNEX Comments at 68; PTG Comments at 810.(#z They state that the format and   =content proposals for complaints are not overly burdensome because complainants control the timing of  S2-  the filing of the complaint and can gather information prior to bringing the complaint.z2, { yO-ԍXCBT Comments at 89; NYNEX Comments at 68; PTG Comments at 810.(#z They oppose the   jformat and content proposals with regard to answers, however, because they argue that the requirements   will be too onerous for defendants who will have little time to respond with such specificity in their  S-answers, especially in light of our proposal to reduce the time to file answers to twenty days.z { yO-ԍXCBT Comments at 89; NYNEX Comments at 68; PTG Comments at 810.(#z  Sj-  L77.` ` AT&T agrees that general denials should be prohibited.MjL { yOV"-ԍXAT&T Comments at 11.(#M MCI, however, contends that   general denials should be permitted where a complainant has been uncooperative with the defendant prior   to the filing of the complaint and the defendant lacks the necessary information upon which to respond  S-  to the complaint in detail.L{ yOn&-ԍXMCI Comments at 17.(#L The cable entities state that general denials should be permitted in accordance"#l,-(-(ZZa"  S-  Lwith the Federal Rules of Civil Procedure ("FRCP"), subject to Rule 11 sanctions,T{ yOh-ԍXFed. R. Civ. Proc. Rule 11.(#T if the party intends  S-in good faith to controvert all the averments of a pleading or specific paragraph.YX{ yO-ԍXCable Entities Joint Reply at 8.(#Y  S-  M78.` ` AT&T and PTG endorse the proposal to prohibit assertions based solely on information   and belief, stating that it would help to reduce the number of frivolous complaints, including those brought  S8-  \to harass defendants or as fishing expeditions.d8{ yO -ԍXAT&T Comments at 5 n.4; PTG Comments at 10.(#d Many commenters, however, including APCC, Bell   iAtlantic, CompTel, MCI, NYNEX, NAD, TRA, and Teleport Communications Group ("TCG"), argue that   allowances should be made for situations in which a complainant will have difficulty obtaining access to   .information that may be in the sole possession of a defendant or third parties who might be unwilling to  S-  ?relinquish such information.x{ yO- ԍXAPCC Comments at 4; Bell Atlantic and NYNEX Joint Reply at 4; CompTel Comments at 6; MCI Comments at 1213; NAD Reply at 3; TRA Comments at 13; and TCG Comments at 3.(# APCC, GTE, ICG, and TCG propose that information and belief   allegations should be permitted if the complainant pleads with particularity facts that would establish a   credible case, or supplies affidavits stating that the necessary information is in the possession of the  S -  defendant or an uncooperative third party. { yO-ԍXAPCC Comments at 5; GTE Comments at 7; ICG Reply at 8; TCG Comments at 3.(#Ƃ ATSI, KMC, and MFS oppose the proposal because of the  S -  jpotential hardship on small or emerging businesses.r ` { yO-ԍXATSI Comments at 9; KMC Comments at 7; MFS Comments at 6.(#r APCC and ICG also seek clarification on whether   the Commission's proposal is to prohibit complaints based solely on information and belief, or only those  S -allegations based solely on information and belief.` { yO8-ԍXAPCC Comments at 5; ICG Comments at 12.(#`  SX-  N79.` ` AT&T and PTG note that the identification of individuals with discoverable information  S0-  jshould not include phone numbers because such individuals should be contacted only through counsel.b0 { yOP-ԍXAT&T Comments at 89; PTG Comments at 12.(#b   Regarding the document production proposal, Bechtel & Cole and Ameritech support requiring all relevant  S-  documents to be produced to the opposing party and the Commission.o{ yO -ԍXBechtel & Cole Comments at 3; Ameritech Comments at 2.(#o Most commenters, however, such   -as CBT, BellSouth, MCI, the cable entities, and PTG, express concern that the information produced might   zbe overbroad and argue that requiring the filing of numerous documents with only tangential relevance   to the dispute is likely to overwhelm the Commission with materials of marginal or no use in resolving  S@-  the complaint.@{ yO%- ԍXCBT Comments at 12; BellSouth Comments at 16; MCI Comments at 21; Cable Entities Reply at 12; PTG Comments at 19.(#ƶ CBT notes that many federal courts have opted out of compliance with the federal rule   and that it would be more efficient to respond to discovery requests than to identify and gather the"$,-(-(ZZ"  S-  Luniverse of available information.M{ yOh-ԍXCBT Comments at 89.(#M MCI questions whether this requirement will be useful, stating that   ya party would identify as relevant only those documents already attached as documents upon which that   [party intends to rely and that party would be unable to guess at what materials another party might find  S-  relevant.LX{ yO-ԍXMCI Comments at 15.(#L ACTA, BellSouth, and GTE propose requiring parties to file only the documents relied upon   concurrently with the complaint and answer and any subsequently filed brief, rather than requiring the  S8-  zproduction of all potentially relevant documents.8{ yO -ԍXACTA Comments at 6; BellSouth Comments at 13; GTE Comments at 10; NYNEX Comments at 10.(#Ɛ GST, KMC, and MFS argue that, to prevent the   copying of millions of unnecessary documents, parties should only be required to identify documents and  S-  provide the opportunity to copy such documents.tx{ yO -ԍXGST Comments at 12; KMC Comments at 12; MFS Comments at 12.(#t AT&T supports the identification or attachment of   =documents to complaints and answers only with respect to Section 271(d)(6)(B) complaints; otherwise,  S-  AT&T argues, all document production should occur at the initial status conference.N{ yO@-ԍXAT&T Comments at 78.(#N CBT, NYNEX,   kand SWBT express concern that defendants will not have time to execute document identification and  SH -  \production of this broad scope.xH { yO-ԍXCBT Comments at 89; NYNEX Comments at 7; SWBT Comments at 34.(#x Bell Atlantic states that, because the Commission seldom permits  S -  Kdepositions or broad document searches, the provision of this information would rarely be utilized.U ( { yO-ԍXBell Atlantic Comments at 5.(#U PTG  S -  and USTA suggest that parties be allowed to amend their information designations without leave.` { yOP-ԍXPTG Comments at 14; USTA Comments at 4.(#`   Several parties, including MCI, express doubt that such information disclosure requirements could entirely  S -substitute for discovery.k H { {O-ԍXSee, e.g., MCI Reply at 9.(#k  SX-  O80.` ` All commenters who discussed the proposal to require parties to append copies of relevant  S0-  .tariffs or tariff provisions to their complaints, answers, and replies support the proposal.0{ {O-ԍXSee, e.g., ACTA Comments at 5; AT&T Comments at 5.(#ƃ No parties   commented on the proposal, to include expressly within the meaning of Section 1.734 of our rules, that   pleadings filed solely to effect delay in the prosecution or disposition of a complaint are filings for improper purpose. "%l,-(-(ZZ"Ԍ S-`XX` ` X c.Discussion (#  S-  RP81.` ` We conclude that the complaint, answer, reply, and any other required pleading are   required to include full statements of relevant, material facts with supporting affidavits and  S`-  documentation.J`{ {O- LԍXSee 47 C.F.R.  1.720(b), (c); Appendix A at  1.721(a)(5), (a)(11); 1.724(b), (g); 1.726(a), (e); 1.727(b).  =We note that Section 208 of the Act, requiring the complainant to "briefly state the facts" in its complaint,  \supports our requirement that the complainant set forth facts that would fully support its allegations. 47 C.F.R.  208(a). (# This requirement will improve the utility and content of pleadings by requiring parties   to plead their cases with specific, material facts and supply documentation early in the complaint process.   In order to speed resolution of all formal complaints, the Commission must adhere to the factpleading   process. Such quick resolution of certain formal complaints is necessitated by the Act. Further, such   jquick resolution of all formal complaints where possible is consistent with the overall goals of the Act to promote and protect competition in the marketplace.  SH -  AQ82.` ` We conclude that complainants shall be required to provide, in their complaints, a detailed   .explanation of the manner in which a defendant has violated the Act, Commission order, or Commission  S -  krule in question.i { {Or-ԍXSee Appendix A, at  1.721(a)(5).(#i Substantive claims, or "counts," based solely upon information and belief shall be  S -  generally prohibited.i l{ {O-ԍXSee Appendix A, at  1.721(a)(5).(#i A complainant may be permitted, however, to file claims based on information   yand belief if such claims are made in good faith and the complainant attaches an affidavit to the complaint  S -  .that explains why the supporting facts could not be reasonably ascertained.i { {O-ԍXSee Appendix A, at  1.721(a)(5).(#i Our goal is to discourage   jcomplainants from filing claims based solely upon information and belief without firsthand knowledge of   the violation alleged. Because quick resolution of formal complaints is essential to the Commission's goal   Nof fostering and preserving competition in today's deregulated telecommunications markets, strict   {adherence to the Commission's fact pleading requirements is necessary. A general rule prohibiting   zassertions based solely upon information and belief will ensure that complainants exercise diligence in   preparing and submitting allegations of misconduct against a carrier. We have considered, however,   commenters' concerns that complainants may not always have in their possession the information that   jwould substantiate their claims and that such information may be in the sole possession or control of the   defendant carrier or of uncooperative third parties. Each complainant has the general duty to provide,   whenever possible, full statements of fact supported by relevant documentation and affidavits.   kComplainants should not, however, be penalized or prevented from filing a formal complaint in those   Lsituations in which the necessary information could not have been reasonably obtained prior to the filing   "of the complaint. We conclude that this requirement strikes an equitable balance between the   ]Commission's need for complete information as early as possible, and the complainant's potential difficulty in obtaining that information.  S-  R83.` ` We disagree with the comments of the cable entities that defendants should be permitted   yto make general denials if the defendant intends in good faith to controvert all the averments of a pleading   \or specific paragraph. Requiring the answer to include full statements of relevant, material facts with   ksupporting affidavits and documentation will prohibit defendants from making general denials in their"`&,-(-(ZZ"  S-  answers.r{ {Oh-ԍXSee Appendix A, at  1.724(b).(#r Specific denials supported by facts and documentation will aid the Commission staff in  S-  understanding the nature of the dispute and facilitate its resolution. Formal complaints often raise   jquestions about a rate, charge, term or condition of a particular service offering. In our staff's experience,   defendant carriers have the requisite knowledge to specifically deny a complainant's allegations about such   charges, practices or service requirements in the vast majority of cases. A diligent defendant should   almost always have sufficient information with which to make specific denials. We conclude further that,   contrary to MCI's suggestion, the benefits to speedy resolution of a complaint that arise from specific   denials outweigh the potential benefit of allowing general denials as a mechanism to enforce compliance with the prefiling activities requirements.  Sp-  2S84.` ` We conclude that parties must include in the complaint, answer, and any necessary reply,   an "information designation" that identifies individuals known or believed by the parties to have   Lknowledge about the matters in dispute. This information designation must identify such individuals by   name and business or other address and include a description of the information possessed by that source  S -  and its relevance to the dispute. Z{ {O-ԍXSee Appendix A, at  1.721(a)(10); 1.724(f); 1.726(d).(#Ƃ We conclude that such mandatory information designation will   simplify, expedite, and, in some cases, eliminate the need for timeconsuming discovery. We agree with   AT&T and PTG that parties should not be required to supply the phone numbers of individuals who   should only be contacted through counsel. Therefore parties are required to identify in the complaint,   answer, and any necessary reply only the name and address of each individual likely to have discoverable  S-information relevant to the disputed facts alleged with particularity in the pleadings.{ {O-ԍXSee Appendix A, at  1.721(a)(10); 1.724(f); 1.726(d).(#Ǝ  S-  T85.` ` We conclude further that parties shall also be required to identify in their information   designations all documents in their possession or control believed to be relevant to the matters in dispute,   including an inventory that contains for each document the date, the source, the intended recipient(s), and  S@-  a description of the document's relevance to the dispute.@~{ {O^-ԍXSee Appendix A, at  1.721(a)(10); 1.724(f); 1.726(d).(#Ƃ We disagree with MCI's assertion that parties   will be unable to guess what kinds of material the opposing party would regard as relevant. In most cases,   Nparties to formal complaints before the Commission are sophisticated business entities who fully   [understand the issues before them and know which documents in their possession or control are relevant   to those issues. We find CBT's arguments that many federal courts have opted out of compliance with   this rule's equivalent in the FRCP unpersuasive. We note that, while we looked to the FRCP for some   jguidance during this proceeding, that guidance was limited by the many differences between federal court   .proceedings and Commission proceedings. Not only does the Commission require factbased pleadings,   but certain of the Commission's formal complaint proceedings are subject to statutory resolution deadlines   shorter than any deadline applicable to the federal courts. Although some federal courts have opted out   of compliance with FRCP 26(a)(1), we adopt its equivalent for Commission proceedings because it will   /aid us greatly in meeting statutory deadlines under our individual procedural constraints as well as in expediting the resolution of competitive issues that affect the telecommunications marketplace. "8',-(-(ZZ "Ԍ S-  2U86.` ` We disagree with CBT's statement that it would be more efficient to have parties respond   to discovery requests than to have parties identify all relevant documents in their information designations.   LWe find that requiring such information designations early in the dispute will facilitate the Commission's   [ability to focus on the facts and issues in the case quickly. Having such information on hand will further   expedite the Commission's consideration of the necessity of any discovery requests early in the   proceeding. We also disagree with the suggestions by PTG and USTA to permit parties to amend their   zinformation designations without leave. We conclude that this would run contrary to our objective of   jprocuring as much information as early as possible. The allowance of amendments would reduce parties'   incentives to file thorough information designations with their complaints, answers, and replies because   they will rely on their right to supplement their designations at a later time. Accepting routinely late  obtained information will only delay the resolution of complaints. We do recognize, however, that parties   =may occasionally, after submitting their initial pleadings, discover information that should be included in   their information designations. Accordingly, a party may submit a request for permission to amend its   information designations, along with an explanation of why the information was not designated at the time of the filing of the complaint, answer, or reply.  S -  %V87.` ` We do not find it necessary to require the production or exchange of all documents   identified as relevant to a dispute as a matter of course in all cases. It will be helpful and often necessary,   [however, in light of the Act's complaint resolution deadlines and the Commission's goal of expediting the   resolution of all complaints, to have certain documents identified by the parties readily accessible to the   ystaff and opposing parties. Therefore we require parties to file concurrently with the complaint, answer,   and any necessary reply, only those documents and affidavits upon which they intend to rely to support  S-  Ltheir respective claims and defenses.{ {O-ԍXSee Appendix A, at  1.721(a)(11); 1.724(g); 1.726(d).(#Ƃ Required attachments include relevant tariffs or tariff provisions  Sh-  [where applicable.hZ{ {Ob-ԍXSee Appendix A, at  1.720(h). See Tariff Forbearance Order.(#Ƒ Because it is in each party's selfinterest to support its most persuasive arguments,   we conclude that it is reasonable to rely on each party's judgment to identify the key documents in the   dispute. We acknowledge that a party may be reluctant to divulge information that would weaken its case,   and, therefore, would probably not attach such information to its complaint, answer, or reply. We   conclude that this concern can be adequately addressed by requiring each party to identify all such   information in their information designations, however, and opposing parties will therefore be aware of,  Sx-and have subsequent opportunity to request, such information at the initial status conference.x{ {O-ԍXSee supra "Status Conferences, The Initial Status Conference" section.(#ƅ  S(-  W88.` ` We conclude that each party shall be required to attach supporting affidavits and   documents to any allowed briefs, along with a full explanation in the brief of the material's relevance to  S-  the issues and matters in dispute.~{ {O"-ԍXSee Appendix A, at  1.720(h). See supra, para. 35.(#Ƃ Such attachments shall have been previously identified in the parties'   zinformation designations, but need not have been attached to the complaint, answer, or any necessary  S-  reply.{ {O8&-ԍXSee Appendix A, at  1.720(h). See Tariff Forbearance Order.(#Ƒ We find that this strikes an appropriate balance between the needs of the Commission and   opposing parties to have readily available information and the hardships of producing unnecessary"`(,-(-(ZZ"   materials. We agree with PTG and USTA that parties may, despite good faith efforts to file complete   submissions, later acquire documents or information upon which they wish to rely but which they did not   Lidentify as relevant information in their information designations. Therefore we permit a party to attach   -such subsequently obtained documents, upon which the party intends to rely, to any subsequent brief filed   in the matter, provided it is accompanied by a full explanation in the brief of the material's relevance to   Mthe issues and matters in dispute and why such material was not identified in the party's information  S-designation.{ {Ox-ԍXSee Appendix A, at  1.720(h). see Tariff Forbearance Order.(#Ƒ  S-  QX89.` ` We disagree with AT&T's suggestion that all document production should occur at the   initial status conference, except in Section 271(d)(6)(B) complaints under 90day resolution deadlines.   This document production requirement is intended to work in conjunction with the other requirements   Nadopted in this rulemaking, including the requirement that parties discuss, before the initial status  S -  conference, issues such as settlement prospects and stipulations of facts and disputed facts.r Z{ {O-ԍXSee supra "Status Conferences" section.(#r It is   essential that parties be able to review the documents produced with the initial pleadings in order to meet   .and discuss these issues knowledgeably prior to the initial status conference. Furthermore, we conclude   ?that requiring the identification of individuals and the identification, inventory, and production of   documents will facilitate the staff's ability to require further disclosure of information about individuals with relevant information and/or further production of documents when necessary.  S-  Y90.` ` We are not persuaded by the arguments of some commenters, such as CBT, NYNEX,   PTG, and SWBT, that twenty days is an insufficient amount of time in which to prepare answers with the  S-  level of information contemplated under these rules.Y{ {OD-ԍSee supra "Answers" section.Y We do not view defendants as having only twenty   days in which to prepare their answers. The pleading requirements are intended to work in conjunction  Sh-  with the prefiling requirements.ch~{ {O-ԍSee supra "Prefiling Requirements" section.c Thus, by the time parties reach the stage of participating in a formal   ycomplaint before the Commission, settlement talks will have narrowed the number and scope of issues in   dispute, and parties will have already commenced the collection and/or exchange of relevant information   that will be used to substantiate the defendant's answer. We conclude that the imposition of these format   and content requirements on defendants is not unduly burdensome, particularly in light of Congress' clear  S-intent to expedite resolution of complaints to promote the competitive goals of the Act.p{ {OP -ԍXSee Joint Explanatory Statement at 1.(#p  SP-  Z91.` ` We also disagree with Bell Atlantic that the information produced would only be useful   for depositions or broad document searches, which are seldom permitted by the Commission. Early   =identification of individuals knowledgeable about the matters in dispute will be an important tool for the   parties and the staff, particularly in those cases where additional affidavits or other forms of factfinding   Mbecome necessary. Given our experience, and in light of the short complaint resolution deadlines, we   jconclude that it is necessary and appropriate to require parties to identify knowledgeable individuals and potentially relevant documents early in the complaint process."`),-(-(ZZ"Ԍ S-   y#/W ԙ[92.` ` We also conclude that pleadings filed solely to effect delay in the prosecution or   disposition of a complaint are filings for improper purpose within the meaning of Section 1.734 of our  S-  <rules.]{ {O-ԍXSee Appendix A,  1.734(c).(#] No commenters opposed this proposal. Adoption of this definition will work in conjunction with   the new rules to further deter parties from filing unnecessary pleadings in formal complaints before the Commission.  S-X` ` 2. Waivers for Good Cause Shown (#  S-XX` ` X a.The Notice(#  S-  Sq-  ~\93.` ` In the Notice, we recognized that many of the proposed pleading requirements could be   burdensome on some individuals or parties, particularly those desiring or compelled to proceed without  S# -  the assistance of legal counsel due to financial and other reasons. Therefore, we proposed to waive format   .and content requirements for complaints, answers, and replies upon an appropriate showing of financial  S -  Zhardship or other public interest factors.[ Z{ {O-ԍXNotice at 20841.(#[ We tentatively concluded that this waiver provision would help  S -  to ensure that full effect is given to the provision in Section 208 of the Act that "any person, any body   politic, or municipal organization, or State Commission," may complain to the Commission about anything  S[-  "done or omitted to be done" by a common carrier in contravention of the Act.L[{ yO-ԍX47 U.S.C.  208.(#L We sought comment  S3-  on this proposal and tentative conclusion, as well as on what standards should be used to determine  "good  S -cause" for waiving format and content requirements.U |{ {O'-ԍXNotice at 20841.(#U  S- `XX` `  b.Comments (#`  Sk-  $]94.` ` All parties commenting on this proposal support it. APCC and NYNEX suggest that   =waivers should be granted primarily for financial hardship or public interest reasons and `suggest specific  S-  revenue or asset levels to define "financial hardship." { yO- /ԍXAPCC suggests that financial hardship is shown when a company and its affiliates have gross revenues of  less than $8 million and gross assets of less than $20 million. APCC Comments at 6. NYNEX suggests  that the Commission adopt a presumption that carriers with more than .05% of nationwide telecommunications revenues are not entitled to a waiver. NYNEX Comments at 8.(# ATSI argues that complainants alleging violations   of Section 260, regarding the provision of telemessaging service, should not have to make special requests  S-  yto receive good cause waivers.M { yOa#-ԍXATSI Comments at 13.(#M GST, KMC, MFS, and USTA suggest that the Commission issue form  S-  complaints and model pleadings that pro se complainants could either fill out or follow. { yO%-ԍXGST Comments at 9 n.7; KMC Comments at 9; MFS Comments at 9; USTA Comments at 4.(#Ɖ GTE warns"*,-(-(ZZ"  S-  !against routine granting of waivers.K{ yOh-ԍXGTE Comments at 8.(#K The NAD suggests establishing an ombudsman within the  S-Commission to assist with accessibility complaints.HX{ yO-ԍXNAD Reply at 6.(#H  S-XX` `  c.Discussion (#`  S8-  ^95.` ` We conclude that parties may petition the staff for waivers of the format and content  S-  requirements for complaints, answers, and any authorized replies.}{ {O -ԍXSee Appendix A,  1.721(d); 1.724(j); 1.726(f). (#} Such waiver requests shall be   considered on a casebycasebasis and may be granted upon an appropriate showing of financial hardship  S-  or other public interest factors.w z{ {O -ԍXSee Appendix A,  1.721(d); 1.724(j); 1.726(f). (#w We note this waiver provision will work in conjunction with the   Commission's existing general authority to waive any provision of the rules on its own motion or on  Sp-  petition if good cause is shown.V p { {O-ԍXSee 47 C.F.R.  1.3.(#V  The discretion to grant waivers of the format and content requirements   based on financial hardship and other public interest factors will ensure, pursuant to Section 208, that "any   person" has the right to complain to the Commission about acts or omissions by a carrier that contravene   the Act. For this reason, we do not agree with APCC or NYNEX that financial hardship should be   determined solely based on set revenue or asset levels. The range of potential complainants under Section   208 is broad and may include individuals, state commissions, municipalities, associations, and other   >entities of all forms and sizes. Likewise, the size and makeup of defendant carriers will vary greatly.   LThus we conclude that waiver determinations should be made on a casebycase basis. The Commission   zshall make every effort to apply its discretion in a consistent and fair manner to strike an appropriate   !balance between strict compliance with the rules and the needs of certain parties for more lenient   requirements and timetables. Furthermore, the Commission shall have discretion to waive or modify some   or all of its rules as appropriate when a waiver is granted for good cause shown. For example, if the   Commission grants a waiver of the document production requirements to a party who demonstrates   financial hardship, the Commission may establish an appropriate alternative method for review and production of documents in that matter.  S-  _96.` ` We find that Section 1.721(b) of the rules contains a suggested format for formal  S-  complaints that is clear and explicit and that no further form complaints or model pleadings for pro se  S-  complainants are necessary.P { yO!-ԍX47 C.F.R.  1.721(b)(#P Furthermore, the Enforcement Division of the Common Carrier Bureau   Ncurrently provides, via the Internet, direct mailings, and public reference room access, a fact sheet   designed to instruct consumers on how to file a formal complaint with the Commission. Finally, we   [conclude that the range of subjects that could conceivably be contained within a pleading is too broad for  S-a model pleading form to be of much utility to pro se parties. "+. ,-(-(ZZ["Ԍ S-  `97.` ` We decline to address in this proceeding NAD's proposal to establish a Commission   ]ombudsman to assist with accessibility complaints in this proceeding. Such a proposal should be  S-  kaddressed in our Section 255 implementation rulemaking,_ { {O-ԍXSee Section 255 NOI.(#_ so as to permit the Commission to take a comprehensive approach to implementation of Section 255.  S8- F.` ` Answers  S-X` ` 1. Reduction of Time to File Answers (#  S-XX` `  a.The Notice(#`  Sq-  SI -  Aa98.` ` In the Notice we proposed to reduce the permissible time for a defendant to file an answer  S# -  to a complaint from thirty to twenty days after service or receipt of the complaint.M # Z{ {O-ԍNotice at 20842.M We tentatively   concluded that this reduction was consistent with the changes we proposed regarding the form and content  S -  of pleadings and would not unduly prejudice the rights of any defendant.M { {O_-ԍNotice at 20842.M We further tentatively   yconcluded that this reduction in time to answer struck the appropriate balance in distributing the burdens   of compliance with the new formal complaint resolution deadlines among the complainants, defendants  S[-and the Commission.M[~{ {Oy-ԍNotice at 20842.M  S -XX` `  b.Comments (#`  S-  b99.` ` The majority of commenters, including AT&T, Bell Atlantic, CBT, CompTel, the cable  S-  entities, MCI, TRA, and USTA support this proposal.{ {OC- ԍXSee, e.g., AT&T Comments at 11; CBT Comments at 9; CompTel Comments at 6; cable entities Joint Reply at 8; MCI Comments at 17; TRA Comments at 15.(# Ameritech, BellSouth, GTE, PTG, and SWBT   \contend, however, that because complainants will have months to prepare their complaints, requiring   defendant carriers to submit detailed responses with full legal and factual support within a twenty day  S-  window would be unfair and unreasonably burdensome in most cases.j { yO% - ԍXAmeritech Reply at 910; BellSouth Comments at 14; GTE Comments at 4; PTG Comments at 14; SWBT Comments at 45.(#ƴ PTG suggests that defendants   !be required to file their answers within twenty days only in complaints filed pursuant to Section  S-  y271(d)(6)(B).L { yO-$-ԍXPTG Comments at 17.(#L ACTA and USTA suggest that defendants be permitted to supplement their answers at  S-a later time.`R { yO&-ԍXACTA Comments at 5; USTA Comments at 4.(#`",,-(-(ZZ"Ԍ S-ԙXX` `  c.Discussion (#`  S-  c100.` ` We conclude that a defendant shall be required to file its answer to a complaint within  S-  -twenty days after receipt of service of the complaint by the complainant.]{ {O-ԍXSee Appendix A,  1.724(a).(#] We find that reducing the time   in which to file an answer is necessary in light of the Congressional intent to expedite the resolution of  S8-  complaints alleging anticompetitive behavior by defendant carriers.p8Z{ {O2-ԍXSee Joint Explanatory Statement at 1.(#p We disagree with commenters who   >assert that defendant carriers will be overly burdened by having to file answers that comply with the  S-  -format and content requirements within twenty days from the date of service.^{ {Ot -ԍSee supra "Format and Content" section.^ As stated earlier, we view   the defendants as having far more than twenty days in which to prepare their answers because the pre  filing and format and content requirements adopted in this proceeding are intended to work in conjunction  Sp-  with the reduction in time to file an answer.lp~{ {O-ԍXSee supra "Format and Content" section.(#l The prefiling requirements will alert the defendant as to   the basis of the dispute. The actions taken by a defendant in participating in good faith settlement   negotiations should require the same collection of information and documents that will be necessary to   support its answer in compliance with the format and content requirements. The requirement of fully   supported and thoroughly prepared complaints, furthermore, will facilitate a defendant carrier's ability to   /prepare a full response to a complaint within the twenty day period. Such prefiling and format and   content requirements will eliminate any need to allow defendants to supplement their answers. Permitting   defendants to supplement their answers routinely would only encourage defendants to submit incomplete answers.  S- G.` ` Discovery  S-  Ad101.` ` The Notice sought comment on a variety of ways to modify the discovery process in light   of the new statutory deadlines. Discovery is inherently timeconsuming and often fails to yield  SB-  information that aids in the resolution of a complaint. The Notice, in conjunction with other proposals   designed to improve the content and utility of the complaint, answer, and related pleadings, sought   comment on discovery proposals that would balance the parties' legitimate need for discovery with the   twin goals of (1) meeting statutory resolution deadlines, and (2) facilitating prompt resolution of all formal  S-complaints.U{ {OT -ԍXNotice at 2084220847.(#U  ST-` ` 1. Permissible Requests for Discovery  S-` `  a.The Notice   S-  e102.` ` In our experience, discovery has been the most contentious and protracted component of  S-  the formal complaint process. In the Notice, we stated that one of the key elements to streamlining the"-,-(-(ZZ"  S-  enforcement process was to maximize staff control over the discovery process.O{ {Oh-ԍXNotice at 20842.(#O We stated our intention   =to examine carefully what role, if any, discovery should continue to play in resolving formal complaints,  S-and sought comment on a range of options to either eliminate or modify the current discovery process.UZ{ {O-ԍXNotice at 2084320847.(#U  S`-  f103.` ` For our first approach, we sought comment on the benefits and drawbacks of eliminating   kthe selfexecuting discovery permitted under our current rules by prohibiting discovery as a matter of  S-  -right.O{ {O -ԍXNotice at 20843.(#O This proposal placed the emphasis of developing facts and arguments at the complaint and answer  S-  stages of the proceeding, rather than on discovery and subsequent briefing opportunities.O~{ {O -ԍXNotice at 20843.(#O Under this   proposal, if the record presented through such pleadings failed to provide a basis for resolving disputes   =over material facts or was otherwise insufficient to permit our resolution of a complaint, the staff would   have the discretion to authorize limited discovery at the initial status conference, that would be held  SH -  shortly after receipt of the defendant's answer to the complaint.OH { {O-ԍXNotice at 20843.(#O We sought comment on various aspects   jof eliminating automatic discovery, including whether discovery was necessary in all cases, whether such   a rule would pose a hardship for any particular segment of complainants, and what standards should apply  S -in the event that discovery was authorized by the staff.O { {O-ԍXNotice at 20843.(#O  S -  g104.` ` For our second alternative approach, we sought comment on the benefits and drawbacks   of a proposed rule that would limit selfexecuting discovery to something other than the thirty written  S0-  interrogatories authorized under the current rules.O04 { {O-ԍXNotice at 20843.(#O We asked parties to comment on whether a more   limited form of discovery as a matter of right would accommodate a party's ability, where necessary, to   identify and present to the Commission material facts that may be in the possession or control of the other   party; whether allowing a limited amount of discovery as a matter of right might decrease the staff's   /burden in deciding discovery requests on a casebycase basis; and whether limiting discovery in this   manner would detract from full compliance with our rules regarding the level of detail that should be  S@-  offered in support of complaints and answers.O @ { {O!-ԍXNotice at 20844.(#O Pursuant to this approach, the staff would permit  S-  additional discovery only in extraordinary cases.U!X { {O$-ԍXNotice at 20844.(#U We sought comment on various aspects of this  S-  approach, including whether a reduction in the number of allowable written interrogatories would be".!,-(-(ZZa"   appropriate, and whether interrogatories should be limited to questions designed to illuminate specific  S-factual assertions or denials.O"{ {O@-ԍXNotice at 20844.(#O  S-  Ph105.` ` In our third alternative approach, we sought comment on continuing to allow some limited   jdiscovery as a matter of right, but allowing Commission staff to set limits on the scope of that discovery  S8-  and to set specific timetables for such discovery.R#8Z{ {O2-ԍXNotice at 2084445.(#R We noted that authorizing the staff to limit the scope   of the written interrogatories could be an effective deterrent to attempts by parties to use discovery for  S-  Zpurposes of delay or to gain tactical leverage for settlement purposes.U${ {Ot -ԍXNotice at 20844.(#U In conjunction with this approach,   we proposed to require that objections to interrogatories be filed by the date of the initial status  S-  kconference, thereby enabling staff to rule on such objections at that time.U%~{ {O-ԍXNotice at 20844.(#U We noted that under this   proposal, extensions of time to initiate limited discovery and file objections and motions to compel would  SH -be granted only in extraordinary circumstances.R&H { {O-ԍXNotice at 2084445.(#R  S -` `  b.Comments  S -  i106.` ` The majority of commenting parties argue that the Commission should continue to allow  S -  discovery as a matter of right.'" { {O- [ԍXSee, e.g., APCC Comments at 5; ACTA Comments at 6; Bechtel & Cole Comments at 23; CBT Comments  zat 10; CompTel Comments at 6; GST Comments at 910; GTE Comments at 10; KMC Comments at 10;  MCI Comments at 1718; MFS Comments at 910; Nextlink Comments at 6; PTG Comments at 18; TRA Erratum at 16; TCG Comments at 3; USTA Comments at 5; U S West Comments at 10.(# CBT, ICG, and MCI argue that eliminating discovery as a matter of right   will cause delay due to the fact that motions requesting discovery will almost always be filed and ICG  S0-  kargues further that such motions may produce inconsistent discovery rulings.l(0 { yO\-ԍCBT Comments at 11; ICG Comments at 16; MCI Comments at 18.l PTG argues that the  S-  prohibition of discovery would inhibit the development of facts.D){ yO-ԍPTG Comments at 18.D Bechtel & Cole argue that the right   to discovery is necessary because defendants have the power to protect information in their sole  S-  Zpossession.N*{ yO#-ԍBechtel & Cole Comments at 3.N APCC, CompTel and TRA argue that discovery is especially necessary where the defendant  S-  has sole possession of the information a complainant needs to make its case, such as in the case of"/<*,-(-(ZZ"  S-  .allegations of crosssubsidies or discrimination.o+{ yOh-ԍAPCC Comments at 4; CompTel Comments at 6; TRA Comments at 16.o ACTA and CompTel argue that due process requires  S-that a complainant be able to direct its case as it sees fit.[,X{ yO-ԍACTA Comments at 6; CompTel Comments at 6.[  S-  2j107.` ` Parties objecting to the elimination of discovery as a matter of right propose several ways   to streamline the discovery process. PTG and TCG suggest that the Commission could limit discovery   yto twenty written interrogatories, while USTA and GTE suggest that fifteen interrogatories would be the  S-  appropriate number.-{ yO -ԍPTG Comments at 18; TCG Comments at 4; USTA Comments at 5; GTE Comments at 10. The cable entities, however, suggest allowing thirty discovery requests, including   -interrogatories, requests for production of documents, and requests for physical inspection of materials and   Lfacilities, to be filed ten days after service of the complaint, an additional fifteen such discovery requests   to be filed within five days of the filing of the answer, and allowing parties to request additional discovery  Sp-  thereafter.Q.px{ yO-ԍCable Entities Reply at 23, 11.Q The cable entities argue that the certainty of prompt resolution of discovery disputes will  SH -discourage parties from making frivolous requests or objections.K/H { yO-ԍCable Entities Reply at 3.K  S -  k108.` ` A number of the parties that oppose the elimination of discovery as a matter of right  S -  suggest that discovery disputes should be resolved at the initial status conference.0 { yO- ԍX PTG Comments at 19; TCG Comments at 4; ICG Comments at 9; KMC Comments at 11; MCI Comments at 19; MFS Comments at 11.(# Several parties argue   that it would be useful for Commission staff to use the initial status conference to control the scope and/or  S -  scheduling of discovery.1 { yO- ԍX PTG Comments at 19; CBT Comments at 11(arguing that it is the breadth and relevance of discovery that causes delay); USTA Comments at 15; TCG Comments at 4; TRA Erratum at 19 ; Sprint Comments at 8.(# U S West and TRA, however, argue that discovery should be limited by the  SX-  staff only with regard to timetables.\2XH { yO@-ԍTRA Comments at 17; US West comments at 10.\ TRA states that even Rule 26 of the FRCP provides for traditional   discovery, in addition to voluntary disclosure, and states further that Commission staff should not control  S-  the prosecution of an action.D3{ yO -ԍTRA Comments at 17.D MCI suggests that requiring discovery to be discussed at the initial status  S-  Mconference will help Commission staff maintain control over the discovery process,D4h{ yO"-ԍMCI Comments at 19.D although MCI   asserts that the proposed timing of the initial status conference is too early in formal complaint  S-proceedings to rule on objections to discovery.C5{ yO(&-ԍMCI Comments at 20C "h05,-(-(ZZ"Ԍ S-  l109.` ` To promote the resolution of discovery disputes at the initial status conference, several   Lparties argue that discovery requests and objections thereto should be served and filed prior to the initial  S-  =status conference.t6{ yO-ԍ ACTA Comments at 6; Sprint Comments at 8; ICG Comments at 16.t MCI argues, however, that it would be unfair to complainants to require discovery   yrequests to be filed with complaints and answers because the defendants would be able to formulate their   jrequests after seeing the complaint, while the complainants would be required to formulate their requests  S8-  prior to seeing the answer.D78X{ yO0-ԍMCI Comments at 13.D CompTel argues that the proposed timetables for objecting to interrogatories   =provides insufficient time for parties to review the interrogatories, and that therefore parties will always  S-  file objections to interrogatories rather than answer them.G8{ yOp -ԍCompTel Comments at 7.G CompTel suggests instead that parties be  S-  required to respond promptly to interrogatories for which their objections are denied.G9x{ yO -ԍCompTel Comments at 7.G While they   support retaining discovery as a matter of right, GST, KMC and MFS argue that interrogatories should  Sp-  be prohibited or limited because they are often useless.l:p{ yO-ԍGST Comments at 10; KMC Comments at 10; MFS Comments at 10.l If allowed, interrogatories should not be served   \until after the parties file their joint statement of stipulated facts and key legal issues, to facilitate the  S -  ztargeting of disputed areas.D; { yOX-ԍGST Comments at 10.D APCC suggests that the Commission require early discovery, including  S -expedited rulings on discovery disputes.D< ( { yO-ԍAPCC Comments at 5.D  S -  m110.` ` GTE, MCI, Nextlink and TCG argue that discovery as a matter of right is necessary   because all prior disclosures are "voluntary" and parties would disclose only those facts solely in their  SX-  =possession that are most favorable to their case.=X { yO-ԍGTE Comments at 10; MCI Comments at 19; Nextlink Comments at 56; TCG Comments at 3. ICG argues that the absence of discovery as a matter  S0-  of right would preclude parties from checking the accuracy of their opponent's disclosures.D>0H { yO-ԍICG Comments at 15.D TRA is   concerned that elimination of discovery as a matter of right would result in fewer complaints being filed  S-with the Commission because injured parties would lack access to information.@?{ yOX!-ԍTRA Reply at 5.@  S-   n111.` ` AT&T, BellSouth, NYNEX, and SWBT argue that there should be no discovery as a  Sh-  matter of right.@hh{ yOp%- ԍXAT&T Comments at 1517: BellSouth Comments at 1516; NYNEX Comments at 9; SWBT Comments at 6.(#Ƣ AT&T argues that abuses will continue to occur if parties are entitled to a fixed number"h1@,-(-(ZZ"  S-  kof interrogatories.JA{ yOh-ԍAT&T Comments at 15 n.4.J BellSouth argues that full discovery is always available in federal court.MBX{ yO-ԍBellSouth Comments at 1516.M MCI   Lcounters this argument by asserting that discovery should not be the exclusive province of federal courts  S-  because courts often make primary jurisdiction referrals to the Commission in Section 207 cases.DC{ yO8-ԍMCI Comments at 14.D   MSWBT's support of the elimination of discovery is contingent upon two requirements: (1) providing   defendants with the right to remove a formal complaint proceeding to federal court, and (2) a complete  S8-  Mprohibition on motions for discovery to prevent the routine filing of such motions.DD8x{ yOP -ԍSWBT Comments at 6.D TRA opposes   LSWBT's suggestion that the Commission provide defendants with the right to remove formal complaints   to federal court because it argues that defendants would use such a procedure to their tactical advantage  S-to avoid expedited resolution.FE{ yOh-ԍTRA Reply at 5.F  Sp-  o112.` ` SWBT argues that discovery is not needed because parties do not have a right to file a  SH -  yformal complaint and then use discovery to determine if a claim exists.AFH { yO-ԍSWBT Reply at 2.A SWBT suggests that parties be   Lrequired to certify that they engaged in good faith discovery discussions and exchanges prior to the filing  S -of the complaint.DG ( { yO-ԍSWBT Comments at 6.D  S -  Qp113.` ` AT&T and NYNEX argue that the Commission should control all discovery, including   the scope, timing and number of interrogatories, and issue discovery rulings at the initial status  SX-  -conference.^HX { yO-ԍAT&T Comments at 1516; NYNEX Comments at 19.^ NYNEX proposes that parties be required to propound up to thirty interrogatories with the   complaint and answer and file any opposition to such discovery five days prior to the initial status  S-  \conference.FIH { yO-ԍNYNEX Comments at 10.F AT&T argues that discovery requests in addition to interrogatories should be (1) only   allowed in extraordinary circumstances, (2) requested at the initial status conference, and (3) discussed   ywith the opposing party prior to the filing of the motion requesting such discovery, with any opposition  S-to such motion due in five days.EJ{ yO#-ԍAT&T Comments at 17.E  S@-  q114.` ` AT&T suggests that responses to interrogatories should be filed with the Commission.EK@h{ yOH&-ԍAT&T Comments at 16.E   APCC suggests that a "good cause waiver" should be available to grant relief to parties from discovery"2K,-(-(ZZ"  S-  limitations.DL{ yOh-ԍAPCC Comments at 5.D Ameritech suggests, and BellSouth concurs in its Reply comments, that the Commission   /implement procedures such as those contained in Section 252(b)(2) of the Act, that are applicable to  S-  compulsory arbitration of interconnection disputes.MX{ yO-ԍAmeritech comments at 2; BellSouth Reply at 6. Section 252(b)(2) of the Act provides ` ` (2) DUTY OF PETITIONER x`   ` `  (A) A party that petitions a State commission under paragraph 1 shall, at the same time as it submits the petition, provide the state commission all relevant documentation concerning (#` ` `  (i) the unresolved issues;(# ` `  (ii) the position of each of the parties with respect to those issues; and(# ` `  (iii) any other issue discussed and resolved by the parties.(#   ` `  (B) A party petitioning a State commission under paragraph (1) shall provide a copy of   ]the petition and any documentation to the other party or parties not later than the day on which the State commission receives the petition.(#`  GST, KMC and MFS suggest the implementation   of mandatory "meet and confer" conferences between the parties to address procedural issues and potential  S`-  Ldisputes prior to the initial status conference.oN` { yO-ԍGST Comments at 10; KMC Comments at 1011; MFS Comments at 10.o AT&T supports the meet and confer concept.CO`H { yOH-ԍAT&T Reply at 78.C CBT   opposes mandatory meet and confer conferences, arguing that the Commission should not be adding  S-  Lunnecessary requirements for the parties to fulfill.CP{ yO-ԍCBT Comments at 5.C ICG suggests that the Commission make clear that  S-  /it will not tolerate form objections and answers.DQh{ yO-ԍICG Comments at 10.D In light of the Commission's proposals to permit   interrogatories only when it determines such discovery is appropriate, AT&T suggests deleting Section  S-1.729(e) of the Commission's rules because it would be superfluous. R{ yO0- ԍXAT&T Comments at 16. Section 1.729(e) provides the Commission with discretion to prohibit discovery relating solely to damages issues until after a finding of liability. 47 C.F.R.  1.729(e).(#   SH -` ` `  c.Discussion  S -  r115.` ` For the reasons discussed below, we eliminate the rule authorizing the parties to initiate   yself`executing discovery. In its place, we have adopted rules and policies that carefully balance the rights   zof the parties and the need to expedite the resolution of complaints in a number of important aspects.   These new rules: (1) require complainants and defendants to exercise diligence in compiling and   submitting facts to support their complaints and answers; (2) discourage reliance on the often protracted   discovery process as a means to identify or develop information needed to support a complaint or answer;   |(3) give parties an opportunity to make their cases for or against limited discovery early in the   proceedings; (4) reduce the need for timeconsuming motions to compel; (5) provide Commission staff   with more control over the discovery process; and (6) limit each party's ability to use discovery for delay   or other purposes unrelated to the merits of the dispute. The 1996 Act imposed both statutory deadlines"3PR,-(-(ZZ"   on certain complaints and an overall procompetitive policy on the handling of all formal complaints, thus   signifying an intent that we resolve quickly disputes involving allegations of interference in the   development of competition in telecommunications markets. The discovery procedures under the old rules   [were time consuming and were susceptible to abuses that often caused undue delays in our consideration   of the merits of a complainant's claims. The discovery rules adopted in this proceeding expedite the   discovery process, which, in turn, expedites the resolution of all formal complaints, in accordance with the requirements and policies of the 1996 Act.  S-  Rs116.` ` The new procedures and policies allow the staff to consider and rule on reasonable, properly focused requests for interrogatories and other discovery on an expedited basis as follows:  SH -  a)` ` With its complaint, a complainant may file with the Commission and serve on the   defendant requests for ten written interrogatories. A defendant may file with the   Commission and serve on the complainant requests for ten written interrogatories during   the period beginning with the service of the complaint and ending with the service of the  S -answer.US { {O-ԍSee Appendix A,  1.729(a).U(#`  SX-  b)` ` Within three calendar days following service of the answer, a complainant may file with   Pthe Commission and serve on the defendant requests for five written interrogatories. Such   additional interrogatories shall be directed only at specific factual allegations made by the  S-defendant in support of its affirmative defenses.UTZ{ {O-ԍSee Appendix A,  1.729(a).U(#`  S-  c)` ` Requests for interrogatories shall contain (1) a listing of the interrogatories requested; and   2(2) an explanation of why the information sought in each interrogatory is necessary to the  S@-resolution of the dispute and unavailable from any other source.UU@{ {O-ԍSee Appendix A,  1.729(b).U(#`  S-  d)` ` Oppositions and objections to the requests for interrogatories shall be filed with the   RCommission and served on the propounding party (1) by the defendant, within ten   calendar days of service of interrogatories served simultaneously with the complaint and   within five calendar days of interrogatories served following service of the answer, (2) by   the complainant, within five calendar days of service of the interrogatories, and (3) in no  S(-event less than three calendar days prior to the initial status conference.UV(~{ {OF!-ԍSee Appendix A,  1.729(c).U (#`  S-  Xe)X` ` Section 1.730 of the current rules, which expressly authorizes parties to petition for   $additional "extraordinary" discovery in the form of requests for document production, depositions and additional interrogatories, shall be deleted. (#` "`4V,-(-(ZZ"Ԍ S-  f)` ` Commission staff will be inclined to grant all reasonable requests for interrogatories and   _other forms of discovery to the extent permitted under any applicable statutory deadlines.  S-It will issue rulings and direct the parties accordingly at the initial status conference.UW{ {O-ԍSee Appendix A,  1.729(d).U(#`  S`-  Xg)X` ` Commission staff retains the discretion to order on its own motion, additional discovery   Qincluding, but not limited to, document production, depositions, and/or interrogatories.   BThe staff also retains discretion to limit the scope of permissible interrogatories and to  S-modify or otherwise relax the discovery available in particular cases where appropriate.UXZ{ {O -ԍSee Appendix A,  1.729(h).U (#`  S-  at117.` ` These rules and policies are designed to work in conjunction with our prefiling and   format and content requirements, which are designed to improve the utility and content of the initial   complaint and answer filed in a Section 208 proceeding. The rules as a whole are intended to change   >fundamentally the nature of the formal complaint process to enforce the Commission's longstanding  S -  .requirement that "[a]ll matters concerning a claim [be pled] fully and with specificity."oY { {O-ԍXSee 47 C.F.R.  1.720(a) and 1.721(a)(6).(#o In adhering to   Nthese factpleading requirements, we will further the procompetitive policies of the 1996 Act by   expediting the resolution of all formal complaints. We find that these new requirements strike a   reasonable balance between, on the one hand, providing for discovery where necessary to ensure the   ydevelopment of a complete record and, on the other hand, preventing the use of discovery as the primary means of determining if a claim exists.  S-  ~u118.` ` Some commenters express doubt that parties will disclose unfavorable information, and   =argue that discovery is needed to verify the accuracy of initial disclosures. The format and content rules   yaddress this concern by requiring that parties reveal the means by which they determine what documents  Sh-  and information to disclose.qZh~{ {O-ԍSee Appendix A,  1.721(a)(10), 1.724(f), 1.726(d).q Disclosure of the nature of the inquiry should significantly reduce concerns   about accuracy, since a failure to address a patently relevant topic will be readily apparent. The arguments  S-  of some commenters are based on the use of the phrase "voluntary disclosure."c[{ {O-ԍXSee, e.g., GTE Comments at 10.(#c We emphasize that the   phrase "voluntary disclosure" refers to the fact that the parties are obligated to disclose all information that   is relevant to the resolution of a dispute in the absence of a specific discovery request. Use of the term   "voluntary disclosure" does not limit the obligation of the disclosing party to identify all information that is relevant to the facts in dispute, including information that is unfavorable to the disclosing party.  S(-  v119.` ` The rules adopted address MCI's concerns that it is unfair to require complainants to file   xtheir discovery requests without an opportunity to review the answer. First, because the parties must make   [a good faith effort to resolve their dispute prior to the filing of the complaint, the complainant will know   what to expect in the defendant's answer. Second, the rules provide the complainant with an opportunity   [to seek discovery on affirmative defenses first raised in the answer. In light of these factors and the time constraints of statutory deadlines, MCI's fairness argument fails."`5[,-(-(ZZ"Ԍ S-  2ԙw120.` ` We disagree with the argument that the Commission should provide discovery as a matter   of right because federal court rules provide for discovery as a matter of right, in addition to required initial   disclosures. While the Commission has often found the federal rules instructive, it has consistently  S-  rejected wholesale adoption of them.j\^{ {O-ЍX See Amendment of Rules Governing Procedures to be Followed When Complaints are Filed Against  {O-Common Carriers, Report and Order, 3 FCC Rcd. 1806, 1810 (1988). See also American Message  {O-Center v. F.C.C., 50 F.3d 35, 4041 (D.C. Cir. 1995)(#j A significant difference exists in the procedural requirements of   1actions brought before the different fora. Federal court rules require notice pleading while the  S8-  Commission's rules require fact pleading.q]8{ {O -ԍFed. R. Civ. Proc. 8(a); see Appendix A,  1.721(a)(5).q Notice pleading anticipates the use of discovery to obtain   evidence of the facts to support a complainant's claims, while fact pleading requires that a complainant   .know the specific facts necessary to prove its claim at the time of filing. Neither Section 208 of the Act   knor the Commission's own rules and policies contemplate the expansive discovery available in federal   /district court, and in fact, Section 207 of the Act gives parties the option of filing their complaints in  Sp-  federal district court rather than with the Commission.L^p{ yO-ԍX47 U.S.C.  207.(#L We, further, disagree with the argument that   selfexecuting discovery is necessary because due process requires that a complainant be able to direct   its case as it sees fit. As we have stated, our rules require that parties plead all matters fully and   specifically, and commission staff will be inclined to grant reasonable requests for discovery to the extent   permitted under any applicable statutory deadlines. In this context, a party's due process rights are   zfulfilled by being provided with the opportunity to request discovery and present its argument to the   Commission as to why discovery is necessary in its particular case. The fact that the Commission may   deny a party's discovery request, following consideration of the merits of such request, does not negate the party's right to the opportunity to make its case for discovery.  S-  x121.` ` We disagree with the commenters who state that ending selfexecuting discovery will   result in an avalanche of motions for discovery, which would lengthen the discovery process and could   result in inconsistent discovery rulings. Our rules will provide for the quick resolution of discovery   Ldisputes by the date of the initial status conference, which will be held ten days after the answer is filed.   We note that these same commenters strongly support proposals requiring the staff to play a more active  S-  krole in the discovery process by defining the timing and scope of necessary discovery._{ yO-ԍ CBT Comments at 1011; ICG Comments at 16; MFS Comments at 12; U S West Comments at 10. These rules   allow Commission staff to take a more active role in the discovery process to meet statutory deadlines and expedite the resolution of all formal complaints.  Sx-  y122.` ` We conclude that SWBT's suggestion that the Commission require the parties to engage   in good faith discovery discussions prior to the filing of the complaint is unduly burdensome. The   =Commission is already requiring parties to engage in good faith settlement negotiations prior to the filing  S-  1of a complaint.X`{ {O@%-ԍSee Appendix A,  1.721(a)(7).X As part of that obligation, we anticipate that parties will exchange relevant   documentation to the extent that it would help to resolve conflicts. We also conclude that SWBT's  S-  suggestion would be likely to raise numerous disputes after the filing of the complaint, e.g., concerning"62 `,-(-(ZZ-"   what constitutes "good faith discovery," that would consume more time and resources than would be saved by the implementation of such a requirement.  S-  z123.` ` SWBT suggests that the Commission adopt a rule providing defendants with the right to   remove disputes to federal court where broader discovery is available. We decline to adopt this suggestion   because it would eliminate rights provided to complainants in the Act. The Act provides complainants  S-  with the choice of filing claims with the Commission or in federal court.Da{ yOx-ԍ47 U.S.C.  207.D The 1996 Act further provides   complainants with the right to have the Commission resolve certain types of complaints within statutory  S-  deadlines.lbX{ yO -ԍ47 U.S.C.  208(b)(1), 260(b), 271(d)(6)(B), 275(c).l Because those deadlines are enforceable only at the Commission, providing a defendant with   the right to remove any claim to federal court would provide it with the ability to eliminate the   ?complainant's right to have its dispute resolved within the applicable statutory deadline. SWBT,   -furthermore, made this proposal in conjunction with its support for the proposal to eliminate all discovery, which we have declined to adopt.  S -  {124.` ` Additionally, we reject Ameritech's proposal that, as a means to effective discovery, the   Commission adopt disclosure requirements similar to those in Section 252(b)(2), which are for compulsory   Larbitration of interconnection agreements. Such a proposal is unworkable in light of the fact that Section   252(b)(2) procedures would not accommodate the variety of complaints that may be brought before the  S0-  Commission.Ic0{ yO-ԍAmeritech Comments at 2.I Section 252(b)(2) disclosure procedures are directed at arbitration of disputes of a   particular nature before state commissions. Our voluntary disclosure rules will provide the benefits of that   provision, the initial disclosure of relevant documentation, while the discovery rules adopted herein contain sufficient flexibility to be adapted to the unique circumstances of individual cases.  Sh-  |125.` ` The issue of requiring a meet and confer conference to discuss discovery disputes is  S@-addressed in the Status Conference section of this Report and Order.jd@x{ {OX-ԍSee supra "Status Conferences" section.j  S-9` ` 2. Reduction of the Administrative Burden of Filing Documents (#  S- ` `  a.The Notice   SS-  }126.` ` In the Notice we sought comment on methods to reduce the administrative burden 9on the   Commission of accepting filed documents, either identified in initial filings or obtained through discovery,  S-including implementation of a computer scanning requirement for large document productions.Oe { {O#-ԍXNotice at 20845.(#O "7e,-(-(ZZL"Ԍ S-` ` `  b.Comments  S-  ~127.` ` Those parties that commented on this proposal oppose the imposition of a scanning  S-  `requirement.zf{ {O-ԍXSee, e.g., CBT Comments at 12; Comptel Comments at 8.(#z CBT argues that such a requirement would be a waste of resources while CompTel argues  S`-it would be too burdensome.ig`Z{ yOZ-ԍXCBT Comments at 12; Comptel Comments at 8.(#i  S- ` `  c.Discussion  S-  128.` ` We decline to adopt a scanning requirement for all large document productions. Instead,   =we shall provide Commission staff with the discretion, in individual cases involving the review of a large   number of documents, to require the parties to provide the documents to the Commission in a scanned or   Lother electronic format. Material in any electronic format shall be indexed and submitted in such manner  S -  as to facilitate the staff's review of the information.Uh { {O-ԍSee Appendix A,  1.729(g).U Commission staff shall have discretion to reach   an agreement with the parties about the appropriate technology to be used in light of the needs of the staff   .and the current cost and availability of document management technology. Commenters opposed to the   imposition of a scanning requirement make general statements that a scanning requirement would be   unjustifiably costly and burdensome to implement. Because such a requirement will be imposed on an   individualized basis, the staff shall decide on a casebycase basis whether the nature of the production involved will justify the cost and burden of electronic formatting.  S-  ~129.` ` We also recognize that a significant number of complex technical issues that are beyond  S-  the scope of the Notice would have to be addressed prior to the implementation of a comprehensive   document scanning requirement. Because scanning technology is varied and not universally compatible,   the implementation of a standardized scanning requirement would require us to choose a single type of   scanning technology. Several complex questions would therefore arise, including, but not limited to, what   yinformation should be placed in identifying fields and whether the documents must be searchable by text.   Because of these complex technical questions, we decline to impose a scanning requirement at this time,   although we may address this issue again at a later date, following our consideration of possible  S-procedures for allowing the electronic filing of documents in GC Docket 97113.i|{ {O- ԍXSee Electronic Filing of Documents in Rulemaking Proceedings, Notice of Proposed Rulemaking, 12 FCC Rcd 5150 (1997).(#  SR- ` ` 3. Voluntary Agreements for the Recovery of Discovery Costs  S- ` `  a.The Notice   S-  R130.` ` One of the goals in the Notice was to identify ways to encourage parties to exercise   diligence in identifying and satisfying their discovery needs. For example, although the Commission does"8i,-(-(ZZ"  S-  not have authority to award costs in the context of a formal complaint proceeding,j{ {Oh- ԍXSee Turner v. FCC, 514 F.2d 1354, 1356 (1975); Comark Cable Fund III v. Northwestern Indiana  {O2-Telephone Co., 100 FCC 2d 1244, 1257 n.51 (1985).(# we sought comment   on whether encouraging formal complaint parties to agree among themselves to a costrecovery system  S-  for discovery would facilitate the prompt identification and exchange of information.Ok${ {Ot-ԍXNotice at 20845.(#O As an example,   we suggested that the parties could stipulate that the losing party in the complaint proceeding would bear  S`-the reasonable costs associated with discovery, including reasonable attorneys' fees.Ol`{ {O -ԍXNotice at 20845.(#O  S-` `  b.Comments  S-  n131.` ` Although GST, KMC and MFS support the Commission encouraging parties to enter into   [voluntary cost recovery agreements, Ameritech, CBT, CompTel, PTG, SWBT, and TCG oppose such a  Sp-  position.mXpH{ yOX- ԍXGST Comments at 12; KMC Comments at 13; MFS Comments at 13; Ameritech Comments at 3; CBT  [Comments at 12; CompTel Comments at 8; PTG Comments at 20; SWBT Comments at 7; TCG Comments at 5.(# CompTel, GTE, PTG, and SWBT argue that parties will be unable to agree to a cost recovery  SH -  system.nH h { yOP-ԍXCompTel Comments at 8; GTE Comments at 11; PTG Comments at 20; SWBT Comments at 7.(#Ƌ Ameritech argues that parties will be tempted to convince the decisionmaker to award enough  S -  zmoney to the "losing" party to offset the costs of discovery.Io { yO-ԍAmeritech comments at 3.I Ameritech suggests the alternative of   >giving the factfinder the discretion to decide cost recovery issues and award financial damages for the  S -  filing of frivolous complaints.Ip { yO-ԍAmeritech comments at 3.I TCG argues that, if the Commission encouraged such agreements, parties  S -  might not comply with discovery requests unless they are compensated.Cq { yO`-ԍTCG Comments at 5.C CBT argues that discovery   =abuse would not be lessened by having the loser pay the cost of discovery, since the winning party is as  SX-  =likely to have abused discovery.@rX{ yO-ԍCBT Reply at 4.@ CBT supports, however, requiring parties to compensate each other  S0-  =for extraordinary efforts to comply with discovery requests.Ds08{ yO"-ԍCBT Comments at 12.D CompTel suggests that the Commission  S-should set a reasonable copying fee.Gt{ yOp$-ԍCompTel Comments at 8.G "9Xt,-(-(ZZ9"Ԍ S- ` `  c.Discussion  S-  $132.` ` We decline to encourage voluntary cost recovery agreements among parties for several   ]reasons. We conclude that recovery of discovery costs will not be a significant problem in formal   complaints because the rules we adopt today will make extensive discovery the rare exception rather than   the general rule, regardless of the willingness of parties to pay for discovery. Furthermore, most of the   .commenters oppose this proposal. Since the majority of the commenters are potential parties to formal   =complaints before the Commission, we find it unlikely that parties would enter into such voluntary cost recovery agreements.  Sp-  ` ` 4. Referral of Factual Disputes to Administrative Law Judges  S - ` `  a.The Notice   S -  ~133.` ` In the Notice we proposed to amend our rules to authorize the Common Carrier Bureau   .and the Wireless Telecommunications Bureau, on their own motion, to refer disputes over material facts  S -  kin formal complaint proceedings to an administrative law judge ("ALJ") for expedited hearing.Ou { {O-ԍXNotice at 20846.(#O The   disputes referred would be those that cannot be resolved without resorting to formal evidentiary  S3-  kproceedings,Rv3Z{ {O--ԍXNotice at 2084647.(#R although adjudication of novel questions of law or policy would remain outside of the  S -  delegated authority of the ALJ.[w { {O-ԍXSee 47 C.F.R.  0.291(d).(#[ We noted that, as a practical matter, the Bureaus would refer issues   only where necessary to determine acts or omissions, and not to determine the legal consequences of such  S-  acts or omissions.Ox~{ {O-ԍXNotice at 20846.(#O We tentatively concluded that expanding the Bureaus' delegated authority in this   limited way would provide the staff with an important tool for resolving disputes over material facts that  Sk-cannot be resolved without resort to formal evidentiary proceedings.yDk{ yO- |ԍXConsistent with the authority delegated in Section 0.151 of our rules, 47 C.F.R.  0.151, the Chief  nAdministrative Law Judge would have the discretion to establish such expedited procedures and  requirements as are necessary to receive documentary evidence, examine and crossexamine witnesses and  !prepare findings of fact within the timetables specified in any hearing designation order issued by the  zCommission or the staff pursuant to delegated authority. In the past we have designated pole attachment  {O - complaints to the Commission's administrative law judges. See, e.g., TCA Management Co. v. Southwestern  {O - kPublic Service Company, 10 FCC Rcd 11832 (1995). The administrative law judges were instrumental in achieving settlement of all such cases before hearing. (#  S-` `  b.Comments  S-  134.` ` The majority of commenters support the adoption of a rule authorizing the Common   Carrier Bureau and the Wireless Telecommunications Bureau to refer factual disputes to an ALJ for":y,-(-(ZZ"  S-  resolution.AzX{ yOh- jԍX ACTA Comments at 7; AT&T Comments at 34; CBT Comments at 1213: CompTel Comments at 8; GST  \Comments at 14; GTE Comments at 12; KMC Comments at 14; MFS Comments at 14; PTG Comments at 20; TRA Comments at 19; TCG Comments at 5.(#A Bechtel & Cole's support for authorizing such referral, however, is contingent upon the   establishment of deadlines for ALJs to resolve such disputes, as well as a clear definition of the role and  S-  jresponsibility of the ALJ in each case.N{{ yO8-ԍBechtel & Cole comments at 4.N CBT suggests that the ALJ hearing be located at the site of the  S-  alleged violation.G|x{ yO -ԍCBT Comments at 1213.G GST, KMC and MFS argue generally that the procedures for referral of factual  S`-  disputes to ALJs should be clarified.l}`{ yO -ԍGST Comments at 14; KMC Comments at 14; MFS Comments at 14.l BellSouth, however, opposes the referral of factual issues to ALJs,   except as a last resort, arguing that it would only add a layer of procedural rules while still requiring the  S-  Commission to make a legal determination on the case itself.J~{ yOH-ԍBellSouth Comments at 16.J BellSouth supports referral of disputes  S-to ALJs for hearing only if the Commission adopts the pole attachment complaint rules.J( { yO-ԍBellSouth Comments at 16.J  S- ` `  c.Discussion  SH -  C135.` ` We amend Section 0.291 of the rules to authorize the Chief of the Common Carrier   Bureau to designate factual disputes for evidentiary hearings before an ALJ and clarify that the change   in the Bureau's delegated authority is intended to authorize the Bureau to designate factual disputes for  S -  hearing even in those cases where the facts to be determined may be considered "novel."] { {O(-ԍSee Appendix A,  0.291, 0.331.] We retain,   >however, the existing prohibition on the Common Carrier Bureau designating for hearing those issues   Minvolving novel questions of law or policy which cannot be resolved under outstanding precedents or   guidelines. No revision is required in the existing delegated authority of the Wireless Telecommunications  S0-Bureau, which now permits it to delegate novel factual issues for hearing.P0J { {O-ԍSee 47 C.F.R.  0.331.P  S-  136.` ` Factual disputes that are referred to an ALJ for hearing shall be referred to such ALJ  S-  through a hearing designation order.{ yO4"- ԍXThe Bureau responsible for handling the complaint generally will not be a party to the ALJ hearing. In the  Levent that the responsible Bureau becomes a party to the hearing, the Bureau staff involved with the hearing  shall not be involved in the resolution of that complaint, in order to protect the neutrality of that Bureau's decisionmaking staff.(#  The hearing designation order may set a recommended deadline   for the ALJ to certify the record by, and, if time permits, issue a recommended decision on the factual   dispute. The presiding judge shall certify the record and if time permits, issue a recommended decision,"h;,-(-(ZZ"   pursuant to the instructions contained in the hearing designation order, before referring the matter back  S-  \to the Commission for, inter alia, final resolution of all outstanding factual, legal and policy issues.I{ yO@-ԍ47 C.F.R.  1.274(a).I   We clarify that, where the Common Carrier Bureau or the Wireless Telecommunications Bureau designates   [a dispute for expedited hearing, the designating Bureau may authorize the presiding judge to schedule the  Sb-  lproceedings to enable such deadline to be met.ObX{ yOZ-ԍ47 C.F.R.  1.3, 1.243.O We further clarify that the Common Carrier and   Wireless Telecommunications Bureaus will not refer a factual dispute to an ALJ for hearing where the   time required by the ALJ to complete a hearing on such dispute would preclude the Commission from meeting an applicable statutory deadline.  S-  137.` ` There is broad support among the commenters for the use of ALJs to resolve factual   disputes. After due consideration of commenters' concerns about compliance with statutory deadlines,   we conclude that the existing rules provide the Commission with the authority to request, in a hearing   designation order, that disputes be resolved by an ALJ within a set period of time consistent with the final   Commission decision complying with the statutory deadline and to authorize ALJs to use discretion in the  S -  application of their hearing rulesP { yOZ-ԍ47 C.F.R.  1.2011.364.P to ensure compliance with the deadline recommended by the  S -  zCommission.P x{ yO-ԍ47 C.F.R.  1.3, 1.243.P We conclude, in addition, that the concerns of some commenters about such referrals   >slowing down the complaint process are unwarranted. The Commission's obligation to comply with   statutory deadlines is not eliminated by such referral. Referral of factual disputes to ALJs will, in fact,   expedite the process because referrals will be used in those circumstances where the factual disputes   Mcannot be resolved promptly, if at all, on a written record. In such cases, it would take longer for the  S-  =Commission to resolve such disputes itself without a hearing than it would for the Commission to do so   after a hearing before an ALJ. ALJs are, furthermore, expert triers of fact and are wellsituated to conduct   their proceedings within the time frames given by the Commission, such that sufficient time will remain   for the Commission to issue its decision in compliance with the statutory deadline. We also conclude that   ALJ hearings will be held at the offices of the Commission in Washington, D.C., unless otherwise ordered   by the Commission. It would be impractical to provide for hearings at the location of each dispute in light   ^of both the time limitations that may be imposed on the ALJs and the limited resources of the Commission.  Sz-  o138.` ` Additionally, we note that the Enforcement Task Force is currently evaluating whether   jit may be appropriate, in certain limited categories of disputes, to conduct mini-trials or some other form   of live evidentiary proceeding, either before an ALJ or the Task Force. If adopted, this test procedure,   subject to careful time constraints, would allow parties a substantially greater opportunity to present live   \testimony and oral argument than is contemplated by the hearings conducted pursuant to designation orders. "<,-(-(ZZ"Ԍ S-  y#/W  y#/W XH.` ` Status Conferences (#  S-  139.` ` The Notice proposed to use status conferences to speed up the formal complaint process y#/W  y#/W    jin order to enable compliance with the newly imposed statutory deadlines and overall streamlining of the  Sb-  formal complaint procedures.Ob{ {O-ԍXNotice at 20847.(#O The status conference proposals were intended to work in conjunction with the modifications of the briefing and discovery rules.  S- ` ` 1. The Initial Status Conference  S- ` `  a.The Notice   SK -  140.` ` We proposed to modify our rules concerning status conferences to improve the ability of  S# -  =the Commission staff to render prompt decisions and order any necessary actions by the parties.G# Z{ {O-ԍNotice at 20847.G We   proposed to require that, unless otherwise ordered by the staff, an initial status conference take place in  S -  all formal complaint proceedings ten business days after the defendant files its answer to the complaint.G { {O_-ԍNotice at 20847.G   Such an early status conference would be used to discuss such issues as claims and defenses, settlement   Lpossibilities, scheduling, rulings on outstanding motions, the necessity of and, if necessary, scope and/or  S[-timetable of discovery.G[~{ {Oy-ԍNotice at 20847.G  S - ` `  b.  Comments  S-  141.` ` A number of commenters support scheduling the initial status conference ten days after  S-  the filing of the answer.{ {OC- ԍXSee, e.g., ACTA Comments at 7; AT&T Comments at 8; Bell Atlantic Comments at 5; U S West Comments at 1516.(#Ƽ Several commenters, such as CompTel, MCI, Nextlink, and PTG, however,   yassert that it may be unrealistic for parties to be required to argue all discovery issues in that short a time  SC-  >period.Cj { yOM-ԍXCompTel Comments at 8; MCI Comments at 20; Nextlink Comments at 7; PTG Comments at 21.(#Ə They suggest either a second status conference or that the initial status conference be held  S-  <twenty to thirty days after the filing of the answer.j { {O!-ԍXSee MCI Comments at 20; PTG Comments at 21.(#j AT&T, CBT, PTG, and U S West argue that parties  S-should continue to be permitted to attend status conferences by telephone conference call. { yO$-ԍXAT&T Comments at 21; CBT Comments at 13; PTG Comments at 22; U S West Comments at 15.(#Ǝ "=,-(-(ZZ3"Ԍ S-  2142.` ` The commenters agree that the issues to be resolved at the initial status conference should  S-  include the scope and scheduling of discovery and the briefing schedule.{ {O@-ԍXSee, e.g., AT&T Comments at 20; Bell Atlantic Comments at 6.(#Ɓ The cable entities state that  S-  they envision the initial status conference as the "focal point of the complaint proceeding."TZ{ yO-ԍXCable Entities Reply at 12.(#T PTG  S-  >suggests the scheduling of a formal settlement conference at that time.L{ yO-ԍXPTG Comments at 22.(#L GST, KMC, and MFS also   propose to have parties attend "meet and confer" conferences prior to the initial status conference so that   agreements reached and disputes remaining unresolved after the meet and confer may be reduced to  S-  writing and given to the staff at the initial status conference.zz{ yO* -ԍXGST Comments at 14; KMC Comments at 15; MFS Comments at 15.(#z GST, KMC, and MFS suggest that the   following subjects be discussed at the meet and confer: (1) the necessity and/or scope of discovery   beyond the exchange of documents and information designations; (2) if depositions or affidavits are   necessary, and if so, the number and proposed dates; (3) the timetable for completion of discovery; (4)   the need or desirability of referring technical issues to an neutral expert; (5) settlement possibilities; (6)   if briefing is necessary; (7) whether parties are willing to have damages claims resolved separately from  S -  liability issues using the supplemental complaint process, where such action has not already taken place;a { {O-ԍXSee supra "Damages" section.(#a   (8) disagreements over designation of documents as confidential or proprietary; (9) in Section 271(d)(6)(B)   cases, whether parties can agree to waive the ninetyday resolution deadline; and (10) the draft joint  S -  statement of stipulated facts and key legal issues. { yO-ԍXGST Comments at 1112; KMC Comments at 1112; MFS Comments at 11.(#ƀ AT&T and the cable entities support requiring the  S -  meet and confer,d , { yOL-ԍXAT&T Reply at 8; Cable Entities Reply at 9.(#d while CBT opposes the meet and confer because it argues that the Commission should  SX-not impose additional requirements on parties.HX { yO-ԍXCBT Reply at 5.(#H  S-` `  c.Discussion  S-  A143.` ` We require that the initial status conference take place ten business days after the date the  S-  answer is due to be filed unless otherwise ordered by the staff.UL { {O|!-ԍSee Appendix A,  1.733(a).U Setting the initial status conference date   for ten business days after the date the answer is due to be filed will enable Commission staff to render   Zdecisions and/or order necessary actions promptly. Commission staff retain the discretion to permit parties to attend status conferences by telephone conference call on a casebycase basis.  S-  144.` ` Commenters that oppose scheduling the initial status conference for ten business days after   the date the answer is due to be filed claim that it may be unrealistic to require the parties to address">,-(-(ZZ#"   discovery issues so early in the proceeding. In response to these commenters, we shall use a complaint   with a ninetyday resolution deadline as an example. In a ninetyday complaint, the date of the initial  S-  status conference is 34 daysQ{ yO- kԍXThe initial status conference will be held 10 business days after the date the answer is due to be filed. The  ?answer is due to be filed 20 days after service of the complaint. Ten business days will be 14 calendar  days, unless a federally observed holiday falls within that period. Therefore, the status conference will take  {Op- place on the 34th day after the date the complaint is filed and served on complainant. See Appendix A,  1.733(a).(#Q into the proceeding under the amended rules. In other words, over one   =third of the time allocated for resolution of such complaint will have passed before the status conference   takes place. In the remaining fiftysix days, the parties will be required to comply with any discovery  S8-  ordered and to draft briefs to include such discovery findings, and the staff will be required to consider   .all submissions by the parties and issue a decision taking appropriate action. Given these requirements,   .it is necessary for the parties and the Commission to move the proceeding along with great speed. Even   if the complaint is not subject to such an abbreviated schedule, the expedited resolution of all formal   Lcomplaints is essential to fostering and maintaining competition in accordance with the goals of the 1996   Act. Furthermore, the requirement of an early initial status conference will not be as burdensome as some   \commenters envision. Our status conference requirement must be considered in conjunction with the   kestablishment of requirements for prefiling activities, format and content of pleadings, and discovery  S -  procedures. The prefiling activities will narrow the scope of disputed issues. z{ {O-ԍXSee supra "PreFiling Activities, Certification of Settlement Attempts" Section.(#ƕ The format and content   requirements will reduce the amount of discovery that is necessary by requiring the disclosure of relevant  S -  evidence at the complaint and answer stage of a formal complaint proceeding.d { {OV-ԍSee supra "Format and Content" section.d The new discovery   procedures will require the filing of all requests for discovery, as well as objections and oppositions   thereto, prior to the initial status conference, to enable the staff to address discovery issues at the initial  S2-  =status conference.U2{ {Op-ԍSee supra "Discovery" section.U Finally, Commission staff will retain the discretion to modify the scheduling of the  S -initial status conference when it is warranted by the facts and circumstances of an individual case.U 0 { {O-ԍSee Appendix A,  1.733(a).U  S-  _145.` ` We also adopt, in part, the proposal made by GST, KMC, and MFS to require the parties   to meet and confer prior to the initial status conference. Parties will be required to schedule and attend   a meet and confer conference amongst themselves prior to the initial status conference to discuss the   following issues: (1) settlement prospects; (2) discovery; (3) issues in dispute; (4) schedules for pleadings;   (5) joint statements of stipulated facts, disputed facts, and key legal issues; and (6) in a Section  S-  271(d)(6)(B) proceeding, whether the parties agree to waive the ninetyday resolution deadline.T { {OT#-ԍSee Appendix A,  1.733(b)T All   proposals agreed to and disputes remaining must be reduced to writing and submitted to the staff two  S-  ybusiness days prior to the initial status conference.TT { {O&-ԍSee Appendix A,  1.733(b)T This submission is to be made separately from the"?,-(-(ZZ"  S-  joint statement of disputed and undisputed facts and key legal issues that is due on the same date.{ {Oh-ԍXSee supra "Other Required Submissions, Joint Statement of Stipulated Facts" section.(#Ɠ Our   requirement that the parties meet and confer will prepare the parties for a productive status conference   ybecause it will require the parties to consult early on substantive and procedural issues. The requirement   to meet and confer should also eliminate any element of surprise that might prevent parties from reaching   agreements at the status conference, due to a party needing time to consider an opponent's newly disclosed  S8-  position on a particular issue. CBT's argument against the imposition of further requirements@8Z{ yO2-ԍCBT Reply at 5.@ is   /unpersuasive. The meet and confer will not require the parties to address any new issues, but rather imposes an earlier deadline for completing activities which the parties would have to perform in any case.  S-` ` 2. Status Conference Rulings (#  SH -` `  a.The Notice  S! -  S -  146.` ` In the Notice, we proposed to modify the requirement that the staff memorialize oral  S -  rulings made in status conferences.G { {O]-ԍNotice at 20848.G We proposed that, within twentyfour hours of a status conference,   the parties in attendance, unless otherwise directed, would submit to the Commission a joint proposed  S -  order memorializing the oral rulings made during the conference.G |{ {O-ԍNotice at 20848.G Commission staff would review and  S[-  {make revisions, if necessary, prior to signing and filing the submission as part of the record.M[{ {O -ԍNotice at 20848.M To   yfacilitate the submission of these joint proposed orders, we further proposed that parties be allowed, but   not required, to tape record the staff's summary of its oral rulings or, alternatively, to transcribe the status  S-conference proceedings.G{ {O#-ԍNotice at 20848.G We sought comment on these proposals and any other alternative proposals.G2 { {O-ԍNotice at 20848.G  S-` `  b.Comments  SC-  147.` ` Most commenters, including ACTA, ATSI, Bell Atlantic, GTE, and ICG, support requiring  S-  jparties to file a joint proposed order within twentyfour hours of a status conference. { yO"- ԍXACTA Comments at 7; ATSI Comments at 14; Bell Atlantic Comments at 6; GTE Comments at 12; ICG Comments at 17.(#Ʋ ACTA, AT&T   and GTE suggest that the Commission provide an alternative procedure for parties that cannot agree on  S-  <a proposed order.x{ yO&-ԍXACTA Comments at 7; AT&T Comments at 2021; GTE Comments at 12.(#x Bell Atlantic suggests that the Commission provide the parties with resources to draft"@,-(-(ZZ$"  S-  the proposed order onsite following the conference, with staff remaining available for consultation.U{ yOh-ԍXBell Atlantic Comments at 6.(#U   yCBT, NYNEX, and PTG oppose requiring parties to file a joint proposed order memorializing the status   conference rulings. They argue that parties will be unable to agree on the content of such an order and   that the Commission staff member making the ruling is in the best position to know what was intended  S`-  by the ruling.v`X{ yOX-ԍXCBT Comments at 13; NYNEX Comments at 11; PTG Comments at 22.(#v AT&T suggests that joint proposed orders would be unnecessary if the parties have made  S8-a stenographic record.M8{ yO -ԍXAT&T Comments at 20.(#M  S-  148.` ` Commenters are split regarding the allowance of audio recording and/or the use of  S-  Kstenographers at status conferences. ICG supports audio recording of the entire status conference.Lx{ yO -ԍXICG Comments at 17.(#L GST,   jKMC, and MFS support the audio recording of a summary of the staff's oral rulings, but oppose the use  Sp-  Lof a stenographer as being unnecessary.tp{ yO-ԍXGST Comments at 15; KMC Comments at 15; MFS Comments at 15.(#t SWBT opposes using a stenographer because of concern that  SH -a transcribed record may have a chilling effect on the free flow of discussions at status conferences.LH { yO-ԍXSWBT Comments at 8.(#L  S -` ` `  c.Discussion  S -  149.` ` We require parties to provide the Commission with a joint proposed order memorializing  S -  the rulings made at `each status conference.U ( { {OH-ԍSee Appendix A,  1.733(f).U Because of the many important issues that will be resolved   during the status conference, a written record of the rulings will be an essential reference and   organizational tool for the parties and the Commission. Requiring the parties to provide a joint proposed   Lorder will allow the Commission to focus its scarce resources on other aspects of the complaint process.   Requiring the parties to submit such joint proposed order by the end of the business day following the   status conference is necessary because compliance with rulings made at status conference may require   action within a matter of days. Such time sensitivity requires that any confusion or dispute among the   parties over rulings made at the status conference be brought to the attention of Commission staff as early  S@-  as possible. It is instructive to note that the Commission's ex parte rules require parties making oral ex  S-  kparte presentations to file a written memorandum with the Commission's Office of the Secretary that  S-  summarizes the data and arguments presented on the next business day after the presentation.M { yON#-ԍ47 C.F.R.  1.1206(b)(2).M It has  S-  ybeen our experience that parties do not have difficulties complying with such requirement. As explained"AJ ,-(-(ZZ3"   below, we have eased the burden of compliance with this requirement by providing parties with the  S-opportunity to submit either the joint proposed order or a transcript of the status conference.U{ {O@-ԍSee Appendix A,  1.733(f).U  S-  150.` ` The joint proposed order shall summarize the rulings made by the staff in the status   jconference. If the parties cannot agree on all rulings in the joint proposed order they may submit instead   a joint proposed order that contains the proposed rulings upon which they agree and alternative proposed  S-  rulings for those rulings upon which they cannot agree.XZ{ {O -ԍSee Appendix A,  1.733(f)(1).X The joint proposed order shall comply with the  S-  =format and content requirements for proposed orders,{ {Ot -ԍXSee supra "Motions; Format, Content, and Specifications of Motions and Orders" section.(#Ɯ and shall be filed with the Commission by 5:30   {p.m. on the business day following the date of the status conference, unless otherwise directed by  S-Commission staff.X~{ {O-ԍSee Appendix A,  1.733(f)(1).X  SH -  Q151.` ` If parties choose to make an audio recording or stenographically transcribe parts of the   /status conference, they shall submit, in lieu of a joint proposed order, either a transcript of the audio   recording or the stenographic transcript of such status conference within three business days following the  S -  conference, unless otherwise directed by Commission staff.X { {O-ԍSee Appendix A,  1.733(f)(2).X Parties will be permitted to make an audio   recording of or stenographically transcribe only those parts of a status conference that are deemed "on the  S -  [record" by Commission staff at its discretion.U { {O-ԍSee Appendix A,  1.733(e).U We shall prohibit any recording in any manner of those  SX-  Kparts of the status conference deemed "offtherecord" by the staff.UX4 { {O,-ԍSee Appendix A,  1.733(e).U Any party wishing to make an audio   /recording of the staff's summary of oral rulings only must notify the staff and all attending parties in  S-  jwriting of its intent at least three business days prior to the scheduled conference.U { {On-ԍSee Appendix A,  1.733(e).U Any party wishing   .to make an audio recording of those portions of a status conference that are "ontherecord" must secure   the agreement of the attending parties and notify the staff of such intent at least three business days prior  S-  .to the scheduled conference.UX { {O!-ԍSee Appendix A,  1.733(e).U Such audio recordings shall be transcribed and such transcript submitted   as part of the record no later than three business days after the conference, unless otherwise directed by  S@-  the staff.^@{ {O$-ԍSee Appendix A,  1.733(f)(2).^ Parties wishing to transcribe by stenographer those portions of a status conference that are   ["ontherecord" must secure the agreement of the attending parties and notify the staff in writing of such"B|,-(-(ZZ"  S-  intent at least three business days prior to the scheduled conference.g{ {Oh-ԍSee Appendix A,  1.733(e).g Such transcript shall be submitted   as part of the record no later than three business days after the status conference, unless otherwise directed  S-  by the staff.jZ{ {O-ԍSee Appendix A,  1.733(f)(2).j It is the sole responsibility of the party or parties choosing to make an audio recording   {of or stenographically transcribe any part of a status conference to make all arrangements for such   recording or transcription, including, but not limited to, arrangements for payment of the costs of such recording or transcription.  S-  152.` ` The commenters have raised legitimate concerns that the making of a formal record of   a status conference by any means may have a chilling effect on the free exchange of information by the   parties. We emphasize that the staff will retain significant discretion to determine in each case what is   "ontherecord" and what is "offtherecord" to prevent parties from using the record to stifle such  SH -exchanges.[H { {O-ԍSee Appendix A,  1.733(e).[  S - I.` ` Cease Orders, Cease and Desist Orders, and Other Forms of Interim Relief (#(#    S -  153.` ` Certain provisions added by the 1996 Act authorize the Commission to take interim actions   Lagainst LECs pending final resolution of complaints in some instances and to order permanent injunctive   relief in others. Sections 260 and 275 of the Act contain nondiscrimination provisions governing the   ]provision of telemessaging service and the provision of alarm monitoring service, respectively, by  S-  incumbent LECs.U~{ yO&-ԍX47 U.S.C.  260, 275.(#U Sections 260(b) and 275(c) require the Commission to issue, upon an appropriate   showing by the complainant of a violation that resulted in "material financial harm," an order directing   the incumbent LEC "to cease engaging" in such violation "pending a final determination" by the  S-  Commission.[{ yO>-ԍX47 U.S.C.  260(b), 275(c).(#[ Both sections provide that such cease orders "shall" be issued within 60 days of the filing  Sh-  of a complaint that satisfies the stated criteria.[h{ yO-ԍX47 U.S.C.  260(b), 275(c).(#[ In addition, Section 274, pertaining to electronic   publishing by BOCs, authorizes the Commission (or federal district court) to issue cease and desist orders  S-  =for violations of the section.U. { yO -ԍX47 U.S.C.  274(d)(6)(B).(#U Unlike Sections 260 and 275, however, Section 274 contains no deadline   for issuing such orders, nor does it predicate the issuance of such orders on a showing of material financial  S-harm.U { yO&$-ԍX47 U.S.C.  274(d)(6)(B).(#U  S-"CN ,-(-(ZZ"Ԍ S-  X` ` 1. Cease and Cease and Desist Orders Under Title II of the Act and Other  S-Forms of Interim Relief (#  S- X X` ` X a.XThe Notice (#  S9-  154.` ` In the Notice, we invited comment on our tentative conclusion that the procedures   prescribed in Title III (Section 312) of the Act for issuing cease and desist orders are not mandatory in   Section 208 and related Title II complaint proceedings, and that the complaint provisions added by the   z1996 Act give the Commission additional authority to issue cease or cease and desist orders in certain  S-cases.R{ {O -ԍXNotice at 2084849.(#R  SK -  155.` ` Section 312 prescribes certain "Administrative Sanctions" available to the Commission to   jremedy violations of the Act and the Commission's rules and orders. Subsection 312(a) provides that the   Commission "may" revoke a station license or construction permit under any one of seven enumerated   factual circumstances. 47 U.S.C.  312(a). Subsection 312(b) similarly provides that the Commission   "may" order "any person" who has failed to operate substantially as set forth in a license or has otherwise   violated a provision of the Act, certain provisions of Title 18 of the United States Code, or any rule or   [regulation of the Commission, to "cease and desist" from such action. 47 U.S.C.  312(b). Before taking   the actions prescribed in Subsections 312(a) and (b), Subsections 312(c) and (d) require that the   Commission conduct "show cause" proceedings in which the Commission bears both the burden of   proceeding with the introduction of evidence and the burden of proof. 47 U.S.C.  312(c) and (d). We   also asked commenters to address whether an order to "cease engaging in" violations under Sections   260(b) and 275(c) would be the same as an order to "cease and desist" violations under Section  Sk-274(e)(2).OkZ{ {Oe-ԍXNotice at 20850.(#O  S-XX` `  2.Comments (#`  S-  2156.` ` Apart from comments regarding the evidentiary showing that should be required to obtain   cease and cease and desist orders, few commenting parties draw a distinction between the cease orders   contemplated under Sections 260(b) and 275(c) and the cease and desist order described in Section   \274(e)(2). VoiceTel asserts that cease and cease and desist orders are the same and that the language   between Sections 260 and 275 differs only because Section 274 gives the complainant the option of  S-obtaining relief in federal court.v{ {O -ԍXVoiceTel Comments to Section 260, 274, 275 NPRM at 14.(#v  S-  157.` ` Commenters are evenly divided, however, on the issue of whether the Commission must   follow the procedures prescribed in Section 312 of the Act before issuing cease and cease and desist orders   in Title II complaint proceedings. Bechtel & Cole, GST, KMC, MFS, and TRA argue that, in light of   lthe requirement in the 1996 Act for prompt issuance of cease orders in cases alleging violations of   Sections 260 and 275, Congress did not intend for Section 312 hearings to apply to cease and cease and" D~,-(-(ZZ!"  S-  desist orders pursuant to Section 208 and related Title II complaint proceedings.{ yOh- ԍXBechtel & Cole Reply at 2; GST Comments at 16; KMC Comments at 16; MFS Comments at 15; TRA Comments at 20.(#Ư These commenters  S-  .argue that the application of Section 312 show cause hearings would contravene Congressional intent. { yO- ԍXBechtel & Cole Reply at 2; GST Comments at 16; KMC Comments at 16; MFS Comments at 15; TRA Comments at 20.(#Ư   \Bell Atlantic, CompTel, PTG, and SWBT, on the other hand, contend that Section 312 hearings are a  S-  prerequisite to the issuance of any cease or cease and desist order pursuant to the Act.x{ yO -ԍXBell Atlantic Comments at 7; CompTel Comments at 89; PTG Comments at 23; SWBT Comments at 9.(#Ɩ These  S`-  commenters maintain that the D.C. Circuit Court decision in General Telephone Co. of California v. FCC  S:-  ("General Telephone") establishes that Section 312 show cause hearings are required before the  S-Commission can issue cease and cease and desist orders.{ {O - ԍXSee, e.g, CompTel Comments at 89, citing General Telephone Co. of California v. FCC, 413 F.2d 390  {O-(D.C. Cir. 1969), cert. denied, 396 US 888 (1969).(#  S- XX` ` c. Discussion (#`  St-  B158.` ` Congress clearly distinguished between cease orders in Sections 260 and 275 and cease   and desist orders in Section 274. Both Sections 260(b) and 275(c) provide that, if a complaint contains   >an appropriate showing of a violation that results in material financial harm, the Commission "shall,"   /within 60 days, issue an order directing incumbent LECs to "cease engaging in" the violation pending  S -  resolution of the complaint.{ d { {O-ԍXSee 47 U.S.C. at  260(b), 275(c). (#{ Section 274(e)(2), on the other hand, authorizes "any person" claiming that   La BOC or BOC affiliate has violated Section 274 "to make application" to the Commission or the federal   district courts for a cease and desist order, but does not specify circumstances in which a cease and desist  S\-  zorder must be issued.\ { yO-ԍX#X\  P6G;P#47 U.S.C. at  274(e)(2).(#Ƃ In addition, unlike Sections 260(b) and 275(c), Section 274(e)(2) contains no   deadline for Commission action on applications for cease and desist orders, nor does it predicate issuance  S -  of such orders on a showing of material financial harm by the petitioner.VZ  { yO2- ԍX47 U.S.C.  274(e)(2). Cease and desist orders regarding BOC violations of electronic publishing  yrequirements may be obtained independently of a Section 208 complaint proceeding pursuant to Section 274.  {O-See id.(#V We therefore disagree with   VoiceTel's argument that Congress intended Section 260 and 275 cease orders to be identical to Section 274 cease and desist orders.  Sl-  159.` ` Based on the express language of Sections 260(b) and 275(c), we conclude that any order   -issued by the Commission pursuant to these sections must be in the nature of an injunction directed against   ja defendant incumbent LEC pending a final determination on the merits of a complainant's discrimination   jclaims. As is customarily the case with permanent or preliminary injunctive actions, orders issued under   mSections 260(b) and 275(c) directing a LEC to "cease engaging in" a particular act will either be   kdischarged or made final depending on the outcome of the complaint. We further conclude that, apart"E,-(-(ZZ"   from the interim enforcement actions authorized under Sections 260(b) and 275(c), the Commission retains   discretion under Section 4(i) of the Act to entertain requests for interim relief in other Title II complaint  S-  proceedings involving alleged violations of the Act or our rules and orders.${ {O- ԍX#X\  P6G;P#See 47 U.S.C.  154(i) ("[t]he Commission make perform any and all acts, make such rules and regulations,  =and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions").  {O- See also United States v. Southwestern Cable Co., Midwest Television Inc. v. Southwestern Cable Co., 392 U.S. 157, 181 (1968). (# We disagree with   commenters who claim that Section 312 procedures must be applied to requests for cease orders under   .Sections 260(b) and 275(c), particularly since these sections make it clear that the complainants, not the  S8-  Commission, have the burden of proof.'8{ yO - MԍXSections 260(b) and 275(c) state that a complaint must contain an appropriate showing of a violation to  @warrant issuance of a cease order prior to a decision on the merits of the complaint. None of the  commenters attempt to reconcile the requirements of Section 312(b) (d) with language in Sections 260(b)  and 275(c) which direct the Commission to issue cease orders within sixty days once such showing has been made. (#' By contrast, Section 312(c) states that "both the burden of   nproceeding with the introduction of the evidence and the burden of proof shall be upon the  S-  jCommission."Od { yO-ԍX47 C.F.R.  312(c).(#O The commenters' reliance on General Telephone is misplaced. That case stands for the   proposition that the Commission may properly invoke Section 312(b) in carrying out its functions under   Title II, not that the Commission is compelled to use Section 312 procedures in determining if a carrier  Sr-  should be required to discontinue a particular practice on a temporary or interim basis.~r { {O-  ԍXIn General Telephone, a case involving an improper extension of lines by a carrier under Section 214 of  kthe Act, 47 U.S.C.  214, the petitioners challenged the Commission's use of Section 312 cease and desist  orders to arrest the continued construction and operation of certain channel distribution systems because they  argued that Section 214(c) of the Act was the Commission's exclusive mechanism for remedying violations  {O(- of Section 214. General Telephone, 413 F.2d at 404. The court held that the Commission's imposition of  Ma cease and desist order under Section 312 was lawful because the language of 312 made clear that it could  {O-be used in nonTitle III cases. Id.(# Sections 260(b)   and 275(c), and Section 4(i) generally, clearly empower the Commission to act promptly to restrain, on  S" -  a temporary or interim basis, apparent or prima facie violations of the Act and our rules and orders  S -without resorting to Section 312 procedures. :{ yO- [ԍXWe note as a general matter that, unless otherwise prescribed by the Act, parties have the option of pursuing  zclaims against common carriers based on alleged violations of the Act either before the Commission or in  {Of- /federal court. See 47 U.S.C.  207. The Act does not restrict the courts' ability to consider requests for  temporary or permanent injunctive relief in actions filed pursuant to Section 207 of the Act. We conclude  .here that we are not constrained by Section 312 in considering request for such actions in Title II complaint cases.(#  S -  A160.` ` With regard to cease and desist orders under Section 274(e)(2), we conclude that Congress   intended to assign the same meaning to "cease and desist" orders in Section 274(e)(2) as used for "cease   =and desist" orders in Section 312 of the Act. Section 274(e)(2) simply authorizes parties to petition the   Commission for cease and desist orders based on alleged violations of the requirements of Section 274.   /There is no support in Section 274 or elsewhere in the Act for applying procedures other than those" F,-(-(ZZ"   prescribed in Section 312 for acting on requests for such cease and desist orders. We conclude that, in   contrast to the permanent or preliminary injunctive relief required under Sections 260(b) and 275(c),   Congress intended the cease and desist orders contemplated under Section 274(e)(2) to be in the nature   ?of final injunctive orders to be issued in conformance with the notice and opportunity for hearing  S`-requirements of Section 312 of the Act.M`{ yO-  ԍXA final or perpetual injunction is an injunction which finally disposes of a proceeding and is indefinite in  {O- term. Black's Law Dictionary at 784 (6th ed. 1990). Generally, a cease and desist order may be issued  under Section 312 only where, after an opportunity to be heard not less than thirty days after receipt of an  Morder to show cause, a respondent has been found to have violated a provision of the Act or Commission rule or order. (#M  S-X` ` 2. Legal and Evidentiary Standards (#  S-XX` `  a.The Notice (#`  Sq-  _ 161.` ` We proposed to amend our rules to delineate the legal and evidentiary standards necessary   .for obtaining cease and cease and desist orders pursuant to Title II of the Act and other forms of interim  S! -  zrelief in Section 208 formal complaint cases.O! z{ {O;-ԍXNotice at 20849.(#O We noted that creating minimum legal and evidentiary   standards would expedite the issuance of cease and cease and desist orders within statutory deadlines and   create more certainty in the industry as to the legal and factual basis for obtaining such injunctive or  S -  interim relief.O { {OU-ԍXNotice at 20849.(#O We noted further that, when a court considers requests for various types of interim or   jinjunctive relief, such as a temporary restraining order, it generally requires that the plaintiff demonstrate   =four factors: (1) likelihood of success on the merits; (2) the threat of irreparable harm absent the grant of   the injunctive relief requested; (3) no substantial injury to any other party; and (4) that issuance of the  S -  order will further the public interest.h\ { {OG- >ԍXNotice at 2084950. See, e.g., Virginia Petroleum Jobbers Association v. FPC, 259 F.2d 921, 925 (D.C.  {O- MCir. 1958) ("Virginia Petroleum Jobbers"); WMATA v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).(#h Courts have also required the posting of bond in some cases prior  S-to granting interim relief.IB { {OC-ԍXNotice at 20850. See, e.g., Federal Rules of Civil Procedure 65(c), stating that:(#   XX` ` No restraining order or preliminary injunction shall issue except upon the giving   Fof security by the applicant, in such sum as the court deems proper, for the   cpayment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.x` XFed. R. Civ. P. 65(c).(#I  S-  A162.` ` Few parties responded in detail to our requests for comment in the Sections 260, 274, 275  Sk-  NPRM regarding (1) the "appropriate showing" required for the Commission to issue a "cease" order  SE-  pursuant to Section 260(b) or 275(c); (2) whether it would be sufficient for the complainant to make a"EG,-(-(ZZc"  S-  prima facie showing of discrimination to obtain a cease order; (3) the meaning of "cease engaging in"   under Sections 260(b) and 275(c); and (4) whether Sections 260(b) and 275(c) give the Commission the   authority to issue a cease and desist order similar to the action contemplated in Section 274(e)(2) and, if   so, whether the showing required to obtain cease orders and cease and desist orders should differ in any  Sb-  material way.b{ {O-ԍXSee Sections 260, 274, 275 NPRM, para. 84:(#   XX` ` [W]e seek comment on what type of showing constitutes an "appropriate   6showing" for the Commission to issue the LEC an order "to cease engaging" in   ean alleged violation of sections 260 or 275. Would it be enough for the  yO -  complainant to establish a prima facie showing of discrimination? We also seek   comment on the meaning of an order "to cease engaging" under sections 260(b)   and 275(c). Do these sections give the Commission authority to issue a cease   and desist order similar to the one in section 274(e)(2)? If so, parties should   Ucomment on whether the showing under section 274 differs in any material respect from the showing required under sections 260 and 275.x`  Accordingly, the Notice sought additional comment on these issues and emphasized that  S<-  yall comments pertaining to enforcement issues in response to the Sections 260, 274, 275 NPRM would be  S-  incorporated by reference into the instant proceeding.O* { {O-ԍXNotice at 20851.(#O We also asked parties to comment on (1) the   meaning of the terms "material financial harm" as used in Sections 260 and 275; (2) whether a showing   yof material financial harm should also be required in order to obtain a cease and desist order under Section   >274; and (3) the level of proof required to establish material financial harm in the context of a Section  Sv-208 complaint proceeding.Ov { {O-ԍXNotice at 20851.(#O  S& -XX` `  b.Comments (#`  S -  163.` ` Many of the commenters, including BellSouth, CompTel, PTG, NYNEX, SWBT, and U  S -  kS West, support the use of the traditional fourprong injunction test articulated in Virginia Petroleum  S -  Jobbers (i.e., likelihood of success, threat of irreparable harm, no substantial injury to other parties, and  Sb-  the furtherance of the public interest)qbN { {OP-ԍXVirginia Petroleum Jobbers, 259 F.2d at 925.(#q for issuing cease orders pursuant to Sections 260 and 275 and  S:-  .cease and desist orders pursuant to Section 274.:{ yO- LԍXBellSouth Comments at 17; CompTel Comments at 9; PTG Comments at 24; NYNEX Comments at 1112; SWBT Comments at 9; U S West Comments at 1617.(# These commenters claim that this test will minimize  S-  the chance of harm to a carrier should the allegations ultimately prove to be groundless.8{ yO"- LԍXBellSouth Comments at 17; CompTel Comments at 9; PTG Comments at 24; NYNEX Comments at 1112; SWBT Comments at 9; U S West Comments at 1617.(# GST,"H,-(-(ZZ"   LCompTel, KMC, MFS, and PTG also argue that complainants should be required to post a bond to pay  S-for the carrier's damages if the Commission later finds that the complaint was without merit.{ yO@- ԍXGST Comments at 16; KMC Comments at 16; MFS Comments at 16; CompTel Comments at 9; PTG Comments at 24. (#ƭ  S-  164.` ` TRA, ICG and the cable entities argue for more relaxed standards, especially for resellers  S`-  and small market entrants.|` { yO -ԍXICG Comments at 18; TRA Comments at 21; Cable Entities Reply at 14.(#| They urge the Commission to retain only the elements of the traditional test  S8-  relating to advancement of the "public interest" and "no substantial injury to other parties."c8{ yO -ԍXICG Comments at 1820; TRA Comments at 21.(#c ICG   contends that the "likelihood of success" and "irreparable harm elements" inherently favor the status quo,  S-  which is contrary to Congress' goal of expediting effective local exchange competition.O@{ yO -ԍXICG Comments at 1920.(#O According to   >the cable entities, the Commission should require a moving party to show only that it has mounted a  S-  M"substantial challenge" to a carrier's practice.T{ yO-ԍXCable Entities Reply at 14.(#T TRA recommends that if the Commission decides to   apply the traditional fourpart test for injunctive or interim relief, it should define "irreparable harm" to  SH -include a showing of "serious damage to a resale carrier's business."LH ` { yOH-ԍXTRA Comments at 21.(#L  S -  Q165.` ` The Alarm Industry Communications Committee ("AICC") and VoiceTel argue that a  S -  prima facie showing of discrimination should be sufficient to warrant issuance of a cease order against  S -  Nan incumbent LEC pursuant to either Section 260(b) or Section 275(c). { {O:- LԍXSee AICC Comments to Sections 260, 274, 275 NPRM at 3132; VoiceTel Comments to Section 260, 274,  {O-275 NPRM at 14.(# ATSI contends that an   "appropriate showing" for a cease order under Section 260 would be a complainant's showing it had   requested service or access from an incumbent LEC and that such request was denied or unduly delayed   in violation of Section 260 on more than one occasion and that such violations would continue absent a   cease order. According to ATSI, the Commission should apply the following two presumptions in   considering requests for cease orders in such cases: (1) if any incumbent LEC is offering a basic service   pursuant to Section 260, then any other incumbent LEC should have the capability to do the same; and   (2) if an incumbent LEC has the capability to provide telemessaging service, then a telemessager should  Sj-be able to access the LEC's network for purposes of providing similar telemessaging service.qjL { {OV"-ԍXATSI Comments to Section 260, 274, 275 NPRM at 12.(#q  S-  166.` ` Bell Atlantic argues that a cease or cease and desist order could be issued under Sections   260, 274, or 275 only if a complainant produces facts that show that (1) the alleged discriminatory   behavior has occurred or will soon occur, (2) that the behavior violates the Act and/or the Commission's"I,-(-(ZZ3"  S-  rules, and (3) that it has or will cause substantial harm to the complainant.z{ {Oh-ԍXBell Atlantic Comments to Section 260, 274, 275 NPRM at 15.(#z PTG contends that cease   orders should be issued pursuant to Section 260 only after the complainant has shown by a preponderance   !of the evidence that an incumbent LEC has violated Section 260(a) and that the violation was the  S-  proximate cause of the complainant's material financial harm.sZ{ {O-ԍXPTG Comments to Section 260, 274, 275 NPRM at 2930.(#s PTG argued that an order to "cease   engaging" under Sections 260 and 275 should be more difficult to obtain than an order to "cease and  S8-  ydesist" under Section 274 because Sections 260 and 275 require a showing of "material financial harm."s8{ {O -ԍXPTG Comments to Section 260, 274, 275 NPRM at 2930.(#s   SWBT contends that the standard under Section 274(e), which authorizes any person to "make application   .to the Commission" for a ceaseanddesist order, should be at least as demanding as Section 1.722 of the   Commission's rules, which requires complainants seeking damages to demonstrate or quantify the harm  S-  suffered or damages incurred with reasonable certainty.~{ {O-ԍXSWBT Comments to Section 260, 274, 275 NPRM at 2627, citing 47 C.F.R.  1.722(a).(#Ơ SWBT maintains that cease orders under   Sections 260(b) and 275(c), on the other hand, should require more stringent proof because those sections   direct the Commission to issue such orders upon an appropriate showing of material financial harm in the  S -  .complaint.y { {O-ԍXSWBT Comments to Section 260, 274, 275 NPRM at 2627(#y VoiceTel asserts that the Commission's authority under Sections 260, 274 and 275 is the   same, contending that the language between the two provisions is different only because Section 274 gives  S -the complainant the option of obtaining relief in federal court.v { {O-ԍXVoiceTel Comments to Section 260, 274, 275 NPRM at 14.(#v  S -  167.` ` Several commenters contend that what constitutes material financial harm under Sections  SX-  j260 and 275 should be decided on a casebycase basis. X4 { {O,- ԍXBell Atlantic Comments to Section 260, 274, 275 NPRM at 16; ATSI Comments to Section 260, 274, 275  {O-NPRM at 11; SWBT Comments to Section 260, 274, 275 NPRM at 25.(#  AICC, ATSI, and VoiceTel proposed that all   cases involving denial of access or delay would always result in material financial harm and that material  S-  \financial harm need not be quantified in such cases. { {O8- ԍXAICC Comments to Section 260, 274, 275 NPRM at 31; ATSI Comments to Section 260, 274, 275 NPRM  {O-at 11; VoiceTel Comments to Section 260, 274, 275 NPRM at 13.(# BellSouth maintains that a showing of material   financial harm must establish a causal relationship between the harm and the defendant carrier's actions  S-  and should exclude unsupported claims of "lost opportunity."u{ {OD"-ԍXBellSouth Comments at Section 260, 274, 275 NPRM at 9.(#u According to PTG, a showing of material   zfinancial harm should consist of testimony, supported by affidavit, regarding (1) the magnitude of the  Sh-  alleged harm; (2) the relationship of the harm to the alleged violation, and (3) the impact of the harm on"hJ~,-(-(ZZ"  S-  zthe complainant's business prospects.p{ {Oh-ԍXPTG Comments to Section 260, 274, 275 NPRM at 29.(#p PTG, SWBT, and USTA all argue that a prima facie case of  S-material financial harm must include some quantification of the alleged harm.Z{ {O- kԍXPTG Reply to Section 260, 274, 275 NPRM at 23; SWBT Comments to Section 260, 274, 275 NPRM at  {O-26; USTA Reply to Section 260, 274, 275 NPRM at 45.(#  S-  2168.` ` Finally, none of the commenters, either in this proceeding or in the Sections 260, 274, 275  Sd-  ]NPRM, addressed the issue of whether a showing of material financial harm, as the term is used in   Sections 260 and 275, should also be required in order to obtain a ceaseanddesist order under Section   j274, although some argued that the same standards and procedures should (or should not) apply to cease  S-and cease and desist orders.{ {OD -ԍXSee, e.g., VoiceTel Comments to Section 260, 274, 275 NPRM at 14.(#Ɔ  S-XX` `  c.Discussion (#` XX` ` X (#  SN -  `169.` ` Notwithstanding our proposals in the Notice, we conclude that, apart from the specific   =requirements set forth in the Act and our implementing rules and orders, it is unnecessary at this time to   prescribe the legal and evidentiary showings required to obtain cease orders in Section 260(b), 275(c), and   =other Section 208 complaint proceedings. We similarly conclude that we need not delineate the showing   needed for a cease and desist order under Section 274(e)(2). The commenters differ sharply over these  S -  =issues. Many argue that the fourpronged test set forth in Virginia Petroleum Jobbers should be relaxed  Sb-  lto promote the procompetitive goals of the Act, while an equal number contend that the Virginia  S<-  yPetroleum Jobbers standard, or its equivalent, is necessary to protect the due process rights of defendant  S-  carriers. After weighing the various comments, we conclude that it is more appropriate to consider   requests for interim or injunctive relief on a casebycase basis. It is impossible to anticipate all of the   various factual circumstances that could form the basis of a complaint. Similarly, the level and types of   information necessary to sustain or refute allegations of misconduct by carriers is likely to vary widely.  Sv-  We note that the rules we adopt today will foster our ability to consider requests for interim and injunctive   relief and to order such relief promptly in appropriate cases. In particular, our prefiling settlement   discussion requirement should promote the ability of both complainants and defendants to ascertain the   mlegal and factual bases of their dispute and submit detailed, factbased complaints and answers  S-  accordingly.H{ {O-ԍXSee supra "PreFiling, Certification of Settlement Attempts" section.(#Ƅ Our new format and content requirements are designed to ensure that both complaints and  S-  answers contain full legal and factual support for or against the relief requested in the complaint.{ {O(!-ԍXSee supra "Format and Content Requirements, Support and Documentation of Pleadings" section. (#Ƣ Thus,   as a practical matter, we do not anticipate that the absence of specific legal and evidentiary guidelines in   this Report and Order will require complainants and defendant carriers to incur any additional or otherwise unreasonable burdens in presenting and defending against requests for interim injunctive relief.  S-  170.` ` We also conclude that we need not describe the specific showing required of a   complainant to establish "material financial harm" within the meaning of Sections 260 and 275 of the Act.   >Generally, a complainant alleging material financial harm will be expected to demonstrate some nexus"Kl ,-(-(ZZ"   between its financial condition or results and the defendant carriers' allegedly unlawful behavior within   >the meaning of Sections 260 or 275 during the period at issue in the complaint. In addition, the plain   jlanguage of Sections 260 and 275 indicate that Congress sought to enjoin only those activities that would  S-  cause material financial harm, rather than any financial harm whatsoever. Beyond these guidelines, we   do not believe it necessary or appropriate to delineate specific factual situations that would satisfy this   burden since the evidentiary proof of material financial harm will likely vary widely in different cases.   We agree with PTG, SWBT, and USTA, however, that allegations of material financial harm should be   Ksupported by documentation and affidavits sufficient to enable the Commission to quantify such harm with reasonable certainty.  Sp- J.` ` Damages  S - ` ` 1. Bifurcation by the Commission and the Supplemental Complaint Process (#  S - ` `  a.The Notice   S -  #171.` ` In the Notice we sought comment on whether the Commission legally could and/or should  S[-  bifurcate liability and damages issues on its own motion in certain circumstances.J[{ {O-ԍNotice at 2085253.J In our experience,   the damages phase of the formal complaint process is often cumbersome and protracted largely due to the   /scope and magnitude of discovery typically requested to substantiate or refute damages claims. The   Commission noted that damages discovery is a waste of the time and resources of both the Commission   =and the parties when no violation or liability is found. The Commission further noted that the deadlines   mandated by the new statutory complaint provisions allow very little time for complainants to present   evidentiary arguments sufficient to establish both a violation of the Act and a proper measure of damages  SC-  =incurred as a consequence of such violation within the applicable deadlines. We stated in the Notice that our goal was to eliminate or minimize the delay that is often inherent in damages issues.  S-  a172.` ` In the Notice, we proposed to encourage complainants to bifurcate voluntarily their   lliability and damages issues by reserving the right to voluntarily file a supplemental complaint for  S-  damages after liability has been determined.RZ{ {Oy-ԍXNotice at 2085152.(#R This procedure was available under the previous rule   Section 1.722(b). Where a complainant voluntarily bifurcated a complaint proceeding using the   =supplemental complaint procedure, the Commission would defer adjudication of all damages issues until   =after a finding of liability. We proposed that a complainant's use of this provision in a formal complaint   proceeding subject to a statutory deadline would enable the Commission to make a liability finding within   =such deadline and still preserve the complainant's right to establish a damage award under a less pressing   kschedule. We noted that, while bifurcation could result in a faster complaint proceeding if no liability   were found, the overall proceeding could be significantly longer if liability was found and damages were   decided in a second, separate proceeding. We emphasized, however, that complainants would want to   avail themselves of the supplemental complaint bifurcation approach in most instances to avoid the   jpossibility that the deadlines would not provide them with enough time to develop their damages claims.   We noted that bifurcation through the voluntary supplemental complaint process would be particularly   appropriate in those cases in which a complainant sought both prospective relief and damages incurred""L,-(-(ZZ'$"   as the consequences of a defendant carrier's violation of the Act or a Commission rule or order. For   ?example, we stated that a decision by the Commission requiring a defendant carrier to terminate a   kparticular practice or to provide service to a complainant under more reasonable terms and conditions   would constitute a final, appealable order, as would a decision denying a complainant such relief. This   would be the case even if issues of damages remained to be resolved as a result of the complainant's  S8-  decision to file a supplemental complaint. We sought comment on the relative benefits to be gained by   bifurcating liability and damages issues in Section 208 proceedings through complainants' voluntary use   of the supplemental complaint process. We also asked parties to identify bifurcation standards that might   help ensure that both liability and damages issues are fully resolved within the earliest practicable time frame.  SH - ` `  b.Comments  S -  173.` ` Bell Atlantic and NYNEX comment that the Commission currently has the authority to  S -  bifurcate a complaint without the complainant's acquiescence.K { yO8-ԍJoint Reply Comments at 6.K BellSouth argues that not all complaints  S -are appropriate for bifurcation.J X{ yO-ԍBellSouth Comments at 18.J  SX-  p174.` ` The majority of commenters support voluntary bifurcation of liability and damages  S0-  Missues. 0{ yO- ԍXAT&T Comments at 9; CBT Comments at 1314; GTE Comments at 13; Nynex Comments at 1213; SWBT  Comments at 10; CompTel Comments at 9; GST Comments at 1617; ICG Comments at 20; KMC  Comments at 576; MCI Comments at 21; MFS Comments at 1619; TCG Comments at 6; TRA Comments at 22.(#Ƃ CompTel, GST, ICG, KMC, MCI, MFS, TCG, and TRA support bifurcation only if it is  S-  yvoluntary.{ yOx- ԍXCompTel Comments at 9; GST Comments at 1617; ICG Comments at 20; KMC Comments at 576; MCI Comments at 21; MFS Comments at 1619; TCG Comments at 6; TRA Comments at 22.(# CompTel argues that forced bifurcation could impair a complainant's due process rights by  S-  causing undue delay.G( { yO-ԍCompTel Comments at 9.G ICG argues that complainants need assurances that their damages claims will be  S-  -resolved promptly following a finding of liability with expedited discovery.G { yO-ԍICG Comments at 2021.G TRA argues that bifurcation   should remain voluntary in light of the delay in recovering damages which is inherent in a bifurcated  Sh-proceeding.LhH { yOP"-ԍXTRA Comments at 22.(#L  S-  175.` ` CBT argues that bifurcation will reduce the time pressure of resolving claims within five   =months because each phase of the case will be simpler to deal with and, if liability is not established, the  S-  damages claim will no longer be at issue.G{ yO@'-ԍCBT Comments at 1314.G CBT argues further that such bifurcation will result in a less"Mh,-(-(ZZ$"  S-  compressed schedule and, therefore, increase discovery opportunities.J{ yOh-ԍCBT Comments at 13.J CBT contends, however, that the  S-  damages phase would still have to be resolved within the statutory deadline.JX{ yO-ԍCBT Comments at 14.J GTE argues that  S-  bifurcation will prevent the domination of discovery with damages issues.D{ yO8-ԍGTE Comments at 13.D GTE and NYNEX assert that  S-  Lonce liability is found, a defendant will have more incentives to settle informally.Zx{ yO -ԍGTE Comments at 13; Nynex Comments at 13.Z NYNEX argues that   the proposed bifurcation rules will make it easier for the Commission to resolve substantive liability issues   =within the statutory deadlines while preserving the rights of the parties to a full investigation into injury  S-  and damages.I{ yO -ԍNynex Comments at 1213.I NYNEX further argues that bifurcation decreases unnecessary costs, as a complainant  S-  will not have to go through the expense of quantifying its damages until it has prevailed on liability.F{ yO -ԍNynex Comments at 13.F   TRA asserts that bifurcation benefits the parties because it will speed the resolution of liability issues and  S-  Mpreclude unnecessary expenditures of time and resources.F( { yO`-ԍNynex Comments at 13.F SWBT contends that bifurcation will be   beneficial to the parties because the substantial time required to resolve damages issues will not be wasted  SH -  where no liability is found.EH { yO-ԍSWBT Comments at 10.E GST, KMC and MFS argue that bifurcation benefits the parties because   the extensive discovery required for damages issues will not be unnecessarily undertaken if no liability  S -is established.l H { yO-ԍGST Comments at 16; KMC Comments at 16; MFS Comments at 16.l  S -  n176.` ` MCI argues that the statutory deadline for a particular formal complaint should be applied   separately to each phase because otherwise the parties would not have sufficient time to develop their  SX-  cases fully.GX{ yO-ԍMCI Comments at 2122.G TRA asserts that bifurcation effectively waives any statutory deadline with regard to  S0-  damages issues.J0h{ yO8!-ԍTRA Comments at 22.J TCG argues that bifurcation will enable the Commission to make a liability finding  S-within the statutory deadlines and preserve a complainant's right to a damages award.C{ yO#-ԍTCG Comments at 6.C "N,-(-(ZZH"Ԍ S-  ~177.` ` PTG, GST, and Ameritech seek clarification that a complainant must establish "injury"  S-  for a finding of liability to proceed to the damages phase in a bifurcated proceeding.x{ yO@-ԍPTG Comments at 2526; GST Comments at 19; Ameritech Comments at 1213.x PTG argues that   "injury" is a necessary element of liability, however, it is not interchangeable with "damages" which are  S-the quantification of losses that result from an injury.G X{ yO-ԍPTG Comments at 2526.G  S8-` `  c.Discussion  S-  ~178.` ` We find that the Commission has discretion to bifurcate liability and damages issues on   zits own motion pursuant to Section 208(a) of the Act. Section 208(a) authorizes the Commission "to   investigate . . . matters complained of in such manner and by such means as it shall deem proper." We   .note, however, that the Commission only has such discretion to the extent that such bifurcation will not   violate the statutory deadline applicable to the complaint as filed. Therefore, all claims, that are subject   to a statutory complaint resolution deadline and include a properly supported request for damages, require that the Commission issue a final order within the deadline on both the liability and damages claims.  S -  2179.` ` However, we both permit and encourage complainants to use the supplemental complaint   Lprocedures to separate liability and damages issues voluntarily such that damages issues will be resolved   in separate formal complaints. By using the term "bifurcate" in connection with the supplemental   [complaint procedures, we contemplate the filing of two separate complaints: (1) the initial complaint for   liability and any applicable prospective relief; and (2) the supplemental complaint for damages.   =Resolution of the liability and prospective relief issues on the complaint that only seeks a determination   Lof those issues complies with the applicable statutory deadline because such a determination resolves all   issues properly brought before the Commission. The damages issues will not have been brought before   .the Commission until, and unless, the supplemental complaint for damages is actually filed. We modify  S@-Section 1.722 of the rules to clarify this procedure.] @{ {O-ԍSee Appendix A,  1.722(b)(2), (3).]  S-  180.` ` Given the new complaint provisions, requiring final Commission orders resolving certain   complaints within specified time frames, encouraging the parties to separate their liability and damages   claims into separate complaints is the most practical means to focus scarce resources on the determination   of liability issues and, when necessary, granting prospective relief quickly. In addition, in cases where   zno liability has been found, significant resources will have been saved as a damages complaint will not   have been necessary. Promoting voluntary separation of liability and damages issues is consistent with   Lthe procompetitive goals and policies underlying the 1996 Act's complaint resolution deadlines and will   ?not adversely affect the Commission's ability to resolve complaints raising competitive and other   marketplace disputes on an expedited basis. On the contrary, such separation will enable the Commission   and the parties to focus initial resources on addressing allegations of anticompetitive conduct and any necessity for prospective injunctive relief.  S -  181.` ` We disagree with CBT's assertion that a complainant should be required to prosecute its   liability and damages claims in a single complaint. Nothing in the Act prohibits a complainant from   choosing to bring its liability and damages claims in separate complaints. The supplemental complaint"!Oz ,-(-(ZZU#"   process is voluntary and the decision to pursue damages in a separate proceeding is made solely by the   complainant. Further, the Commission has no basis on which to make a finding regarding damages if such   claims have not yet been presented by the complainant. Thus, a decision on a liability complaint that   reserves the right to file a supplemental complaint for damages is a final decision on all matters the complainant has presented to the Commission in its complaint.  S-  182.` ` As a policy matter, we note that a notice of intent to seek damages in a supplemental   complaint contained in a complaint for liability has the effect of tolling the statute of limitations for  S-  damages claims.l { {O( -ԍSee Appendix A,  1.722(b)(2); 47 U.S.C.  415.l Moreover, a complainant may file a supplemental complaint for damages following  S-  za finding of liability even if it gave no notice of such intent at the time it filed its original complaint.X Z{ {O -ԍSee Appendix A,  1.722(b)(1).X   Thus, the distinction between the treatment of a supplemental complaint for damages when the   complainant gave notice of its intent to file such supplemental complaint in its complaint for liability and   !when the complainant failed to give notice of its intent to file such supplemental complaint in its   complaint for liability is solely the period of time for which damages may be assessed against a defendant.   Under the circumstances, a rule that would require complainants to prosecute damages within the statutory   deadline, regardless of whether the complainant chose to reserve its right to file a supplemental complaint   for damages, would, in fact, shorten the statute of limitations for bringing complaints for damages in those   complaints that are subject to a statutory resolution deadline. We do not find that it was the intent of Congress to limit the rights of complainants in this manner.  S-  %183.` ` We find that complainants will elect to pursue their liability and damages claims in   Nseparate proceedings because it will be to their advantage to postpone expending time and money   developing proof of their damages claims until after liability and issues of prospective relief have been   established. Complainants will also benefit from being provided an extended period within which to   support their damages claims factually. Most importantly, complainants will benefit from swifter   resolution of liability issues through the filing of separate complaints for the resolution of liability and   Ndamages issues, and, therefore, swifter provision of the prospective relief needed to halt allegedly   anti-competitive conduct. For this reason, the provision in the rules for complainants to file such separate   complaints is consistent with the Act's goal of timely resolution of competitive issues to open markets for all potential entrants and competitors, not just the parties to the complaint.  S(-  184.` ` We also recognize the importance of swift resolution of damages complaints once the   Mliability of a defendant carrier has been established. We agree with commenters who argue that many   \complainants will bifurcate liability and damages claims only if they expect that the Commission will   lconclude the damages phase rapidly. While we believe that parties will benefit substantially from   complaint bifurcation in many instances, rules and polices must be in place to ensure resolution of   damages complaints promptly and effectively. A paramount concern of a complainant seeking damages   is to obtain monetary relief for harm suffered as a consequence of the defendant carrier's actions.   Similarly, defendant carriers have an interest in quickly resolving any uncertainty about the amount or   extent of their damages liability. Therefore, we will endeavor to resolve supplemental damages complaints   in the same length of time within which the liability phase was resolved. As a general rule, damages   proceedings will be resolved within the same amount of time required to rule on the preceding liability""P ,-(-(ZZ'$"   lcomplaint. For example, a provider of alarm monitoring services that elects to file a supplemental   \complaint for damages, based on a finding by the Commission that the defendant carrier is liable for a   violation of Section 275 of the Act, can reasonably expect to have its damages claims resolved within a  S-  similar 120day period.Y { {O-ԍXSee 47 U.S.C.  275(c).(#Y In addition, with respect to supplemental complaints for damages that are filed   following a finding of liability on a matter that was not subject to a statutory deadline, we will endeavor   kto resolve such complaints within five months of the date of filing. This approach furthers the intent   underlying the deadlines that Congress established for different types of complaints. Establishing rules   and policies that promote swift determination of damages claims provides a significant incentive for   !common carriers to comply with the Act and the Commission's rules and orders. It also gives all   complainants reasonable assurances of the length of time a damages phase is likely to take. Such   .information will help parties that plan to seek damages weigh the benefits of bifurcating the liability and damages aspects of their claims prior to filing a complaint with the Commission.  S -  185.` ` We also recognize that damages complaints often raise issues of extraordinary factual   0and/or legal complexity, the resolution of which may require substantial expenditures of time and  S -  resources by the parties. In the paragraphs below, Z{ {O- LԍXSee supra "Ending Adjudication with a Determination of the Sufficiency of a Damages Calculation Method," "Settlement Period," "Referral of Damages Issues," and "Deposit of Funds into an Escrow Account" sections.(# we discuss rules that are designed to facilitate the   computation of damages by complainants and defendants and promote the prompt resolution of damages   disputes. We believe that these rules will help us attain our goal of resolving all damages complaints   within five months from the date filed. Nonetheless, we believe that cases of extraordinary complexity   could require substantially more time. As a general rule, we will endeavor to resolve such complex complaints within twelve months from the date filed.  S-  _186.` ` We recognize the distinction commenters make between "injury" and "damages," and agree   0that a party that has not shown that it suffered an injury has not met a threshold requirement for   substantiating a claim for damages. We disagree, however, with the assertion by these commenters that   a determination of "injury" in a liability complaint is necessary to proceed to a supplemental complaint   for damages when a complainant chooses to use the supplemental complaint procedures. Contrary to the   commenters' claims, proof of "injury" is not necessary to establish a violation of the Act within the  S-  meaning of Section 208.{ yO- ԍX"No complaint shall at any time be dismissed because of the absence of direct damages to the complainant." 47 U.S.C.  208.(# Section 208 of the Act only requires proof that the defendant carrier has  Sx-  yviolated the Act or a Commission rule or order for a complainant to prevail. x { yO$!- ԍX47 U.S.C.  208. In those cases in which the complainant fails to sustain its burden of proving a violation of the Act, there would obviously be no basis for a supplemental complaint for damages.(#  Additionally, determining   Lwhether an individual complainant has been injured and is entitled to monetary damages does not further   the procompetitive goals and policies underlying the 1996 Act in the same way that addressing allegations   of anticompetitive conduct and the need for injunctive relief does. That is, the question of injury goes   {to the resolution of an individual dispute rather than the resolution of a disputed issue that affects   .competition in an industry. For that reason, we conclude that, where the fact of injury does not need to   be established to prevail on the issue of liability in a complaint proceeding, a prior determination of injury"Qd ,-(-(ZZ"   Lis not a prerequisite to the filing of a supplemental complaint for damages. A complainant must always,   however, prove injury and quantify its monetary damages with reasonable certainty to prevail on its claim for damages.  S`-9 ` ` 2. Detailed Computation of Damages  S- ` `  a.The Notice   S-  187.` ` In the Notice we proposed to require that any complaint or supplemental complaint 9seeking  S-  an award of damages contain a detailed computation for such claim.O{ {O -ԍXNotice at 20853.(#O That is, every complaint for   zdamages would include a computation for every category of damages claimed, as well as identification  SK -  of all documents or material on which such computation was based.RK Z{ {OE -ԍXNotice at 2085354.(#R For example, in cases in which   .a complainant is challenging the reasonableness of charges or rate levels applied by a carrier to particular   services taken by the complainant, the complainant's computations would have to identify clearly the   precise nature of the service taken and applicable charges broken down by such factors as minutes of use, traffic mileage and volume, as well as any applicable discounts or other adjustment factors.  S[-` ` `  b.Comments  S -  188.` ` ACTA, BellSouth, CBT, GST, KMC, MFS, NYNEX, and U S West support requiring  S-  `complaints seeking an award of damages to contain a detailed computation of damages claimed.{ yOo-  ԍXACTA Comments at 8; BellSouth Comments at 18; CBT Comments at 14; GST Comments at 17; KMC Comments at 17; MFS Comments at 17; NYNEX Comments at 1213; U S West Comments at 9.(# SWBT   asserts that such a requirement should reduce the filing of frivolous claims for speculative damages that  S-  lare not subject to proof.ED{ yOw-ԍSWBT Comments at 10.E GST, KMC and MFS argue that such a requirement should encourage  Sk-  settlement by clarifying a party's claim.lk{ yO-ԍGST Comments at 16; KMC Comments at 16; MFS Comments at 16.l The cable entities and MCI oppose such a requirement,   yexpressing concern that complainants may not have access to sufficient information prior to discovery to  S-prepare and submit detailed damages computations or computation formulas.ed { yO -ԍCable Entities Reply at 13 n.20; MCI Comments at 22.e  S-  189.` ` ICG argues that the proposed detailed computation of damages should only be required   to be made in good faith and that complainants should be provided with the opportunity to amend the  S{-  complaint to reflect an updated computation of damages following discovery.A{ { yO%-ԍICG Reply at 12.A MCI argues that requiring   the complaint to contain a detailed computation of damages would violate a complainant's due process   \rights and suggests, as an alternative, requiring a complainant to outline its damages methodology and"+R ,-(-(ZZ"  S-  Lidentify what damages information it lacks.D{ yOh-ԍMCI Comments at 22.D While they do not oppose the proposed requirement that   La complaint contain a detailed computation of damages, U S West argues that the Commission must take  S-  into account the reasonable availability of necessary information,IX{ yO-ԍU S West Comments at 10.I and TRA asserts that the Commission   must be careful not to impose an overly rigid or binding requirement with regard to a detailed or definitive  S`-damages calculation prior to the receipt of an answer and completion of discovery.G`{ yO-ԍTRA Comments at 2223.G  S8-  S- ` `  c.Discussion  S-  190.` ` After considering the concerns raised by the commenters, we modify the proposed rule.   We require that a complainant seeking damages must file in its complaint or supplemental complaint either   a detailed computation of damages or a detailed explanation of why such a computation is not possible  SH -  at the time of filing.UH x{ {O`-ԍSee Appendix A,  1.722(c).U Commenters raise valid concerns about the ability of complainants to substantiate   damages claims at the beginning of a formal complaint proceeding. In light of these considerations, we require all complaints or supplemental complaints seeking an award of damages to contain either:  S -  oXa)X` ` A detailed computation of damages, including supporting documentation and materials; or (#`  S0-b)` ` An explanation of:(#`  S- XX` ` (i)X What information not in the possession of the complaining party is necessary to develop a detailed computation of damages;(#  Sh-` ` (ii)X Why such information is unavailable to the complaining party;(#  S- z XX` ` (iii) X The factual basis the complainant has for believing that such evidence of damages exists; and (#  S- z XX` ` (iv)X A detailed outline of the methodology that would be used to create a computation  Sx-of damages with such evidence.Ux { {O"!-ԍSee Appendix A,  1.722(c).U(#  S(- #191.` ` This rule strikes the appropriate balance between the need for complainants to be diligent  d(#in establishing their claims and our recognition that, in certain instances, a complainant may not possess  d(#sufficient facts at the initial stages of a complaint proceeding to prepare a detailed computation of damages  d(#alleged. This rule also is consistent with the Commission's adoption of a policy of encouraging  d(#zcomplainants to have damages claims resolved separately from liability issues using the supplemental  d(#complaint process, because it provides the complainant with the benefit of additional time to develop and"`S,-(-(ZZ"  d(#support factually an accurate computation of damages following a finding of liability. It would have been  d(#unduly burdensome to require a complainant who has been unable to obtain access to substantiating  d(#information, after it has made good faith efforts to obtain such information, to support factually its  d(#damages claim without providing a means to substantiate such claims. Further, such a rule would have reduced the incentives on defendants to negotiate damages issues in good faith.  S- z ] ` ` 3. Ending Adjudication With a Determination of the Sufficiency of a Damages  S-Calculation Method (#  S- ` `  a.The Notice   Sq-  SI - n192.` ` In the Notice we proposed that the Commission's adjudication of damages should end with  d(#a determination of the sufficiency of the computation method submitted by the complainant, instead of  S - d(#making a finding as to the exact amount of damages incurred.O { {Oc -ԍXNotice at 20854.(#O We stated that the benefit of such a  d(#[procedure would be that the Commission would be spared the detailed and timeconsuming investigation  S - d(#of the facts necessary to establish an exact amount of damages.O Z{ {O-ԍXNotice at 20854.(#O As an example of how such a  d(#procedure would be implemented, we noted that a similar procedure is used in complaints dealing with  S[-pole attachments.p[{ {O-ԍNotice at 20854; see also 47 C.F.R.  1.1404(g).p We sought comment on this proposal.  S - ` `  b.Comments  S- Q193.` ` CBT, CompTel, GST, and SWBT oppose a rule ending the Commission's adjudication  S- d(#of damages with a determination of the sufficiency of the computation method. ~{ yO-ԍXCBT Comments at 14; CompTel Comments at 910; GST Comments at 1718; SWBT Comments at 1011.(#ƕ CBT and CompTel  d(#argue that parties will be unable to resolve issues remaining in dispute, such as the numbers to be plugged  SC- d(#into an approved method.^!C{ yO-ԍCBT Comments at 14; CompTel Comments at 910.^ CBT argues that such disputes will require further Commission involvement  S- d(#to resolve.D"{ yOY-ԍCBT Comments at 14.D GST argues that parties are entitled to a final resolution of all substantive issues, a category  S- d(#!it contends includes the actual amount of damages incurred.D#. { yO!-ԍGST Comments at 18.D SWBT argues that because such a  d(#procedure would not require a complainant to meet its burden of proof, it would be a denial of a  S- d(#[defendant's due process rights.H$ { yO%-ԍSWBT Comments at 1011.H AT&T supports this proposal if the Commission remains available to"TN $,-(-(ZZ"  d(#\resolve further disputes among the parties and provide a final resolution if the parties cannot agree to  S-one.E%{ yOh-ԍAT&T Comments at 12.E  S-  ` `  c.Discussion  S8- 194.` ` In cases where liability and damages claims have been severed using the supplemental  S- d(#complaint process,t&X{ yO0- v ԍXWe note that this methodology is designed for use with the supplemental complaint process and, therefore,  v zan order determining the sufficiency of a damages computation method would not satisfy the requirement of a final order where a damages claim is subject to a statutory deadline.(#t the Commission may end adjudication of damages with a determination of the  S- d(#.sufficiency of the damages computation method submitted by the complainant.U'{ {O( -ԍSee Appendix A,  1.722(e).U After considering the  d(#Lconcerns raised by the commenters, we modify the proposed  rule to reflect that if the Commission finds  d(#the damages computation submitted by the complainant unsatisfactory, the Commission may, in its  Sp- d(#discretion, modify such computation method or require the complainant to resubmit such computation.U(p2{ {OB-ԍSee Appendix A,  1.722(e).U  d(#In addition, the rule specifically prohibits the computation method from incorporating an offset for a claim  S - d(#.of a defendant against a complainant.U) { {O-ԍSee Appendix A,  1.722(e).U To ensure the parties are diligent in their negotiations to apply  d(#{the approved calculation method, we shall require that, within thirty days of the date the damages  d(#computation method is approved and released, the parties must file with the Commission a joint statement  d(#>which will do one of the following: (1) detail the parties' agreement as to the amount of damages; (2)  d(#/state that the parties are continuing to negotiate in good faith and request that the parties be given an  d(#=extension of time to continue such negotiations, or (3) detail the bases for the continuing dispute and the  S0- d(#reasons why no agreement can be reached.U*0V { {O&-ԍSee Appendix A,  1.722(e).U In this way, the Commission will monitor the parties'  d(#\compliance with its directive to negotiate a resolution of the dispute in good faith using the mandated computation method.  S- 195.` ` This rule permits the Commission to avoid the detailed and timeconsuming investigation  d(#.of the facts necessary to establish an exact amount of damages where such investigation may reasonably  d(#be delegated to the parties. At the same time, however, it provides a means for parties to return to the  d(#Commission for resolution of ongoing disputes if parties are unable to agree to a final amount of damages.  d(#MThis rule encourages good faith negotiation among the parties by requiring parties to provide detailed  d(#explanations if they fail to resolve their dispute. We emphasize that the Commission will always retain  d(#the right to determine the actual amount of damages in those cases where the establishment of damages  d(#\does not lend itself to such a means of resolution. We also conclude that requiring parties to reach an  d(#agreement within a limited time addresses the concerns raised by some commenters that the parties would have no recourse if they are unable to apply a damages computation method successfully. "U *,-(-(ZZz"Ԍ S-9 ` ` 4. Settlement Period  S- ` `  a.The Notice   S-  Sa- 196.` ` In the Notice we proposed, in conjunction with the proposals to resolve liability 9and  d(#damages claims separately using the supplemental complaint process, to set aside a limited period,  d(#following a finding of liability and prior to the damages phase, during which the parties could engage in  d(#settlement negotiations or submit their damages claims to voluntary ADR mechanisms in lieu of further  S-proceedings before the Commission.O+{ {O+ -ԍXNotice at 20854.(#O  Ss- ` `  b.Comments  S# -  197.` ` GST, SWBT, TRA and U S West support setting aside a limited time period, following  S - d(#a finding of liability, in which to encourage settlement and/or participation in ADR., Z{ yO-ԍGST Comments at 18; SWBT Comments at 10; TRA Comments at 23; U S West Comments at 6. SWBT asserts that  S - d(#a finding of liability increases the defendant's incentive to settle.E- { yO]-ԍSWBT Comments at 10.E U S West argues that the Commission  d(#does not go far enough and that ADR procedures should be used wherever possible to resolve entire  S -complaints.H. z{ yO-ԍU S West Comments at 6.H  S3- ` `  c.Discussion  S- 198.` ` In cases where liability and damages claims have been severed using the supplemental  d(#complaint process, the Commission may suspend proceedings for a period of fourteen days following the  d(#filing of a supplemental complaint for damages, to allow parties to attempt to negotiate a settlement or  Sk- d(#use ADR procedures.O/k { {O- v ԍXSee Appendix A,  1.722(d)(3). To the extent that parties may wish to conduct settlement negotiations prior  v >to the filing of a supplemental complaint for damages, we encourage this and note that the supplemental  v \complaint rules provide that a complainant has sixty days to file its supplemental complaint for damages  {Oo- v following public notice of a decision on the merits of the original complaint. See Appendix A,  1.722(b)(2)(ii).(#O The staff has the discretion to delay this period until later in the damages phase,  SC-when warranted by the facts of an individual case.X0C { {O!-ԍSee Appendix A,  1.722(d)(3).X  S-  199.` ` Encouraging parties to settle their disputes is in the interests of the Commission and the  d(#parties. Commenting parties recognize the benefits of settlements reached by the parties and support the  d(#.establishment of this settlement period to further settlement negotiations. The timing of this settlement  d(#>period is especially useful because it follows the determination of liability. A finding of liability will  d(#yincrease the parties' incentives to settle, as a major issue formerly in dispute will have been resolved. We"SVP 0,-(-(ZZ"  d(#recognize, however, that information disclosures may be necessary in some cases for parties to assess  d(#adequately the amount of damages incurred. In such cases, a settlement period immediately following the  d(#?filing of the supplemental complaint for damages may be too early in the proceeding to be useful.  d(#Providing the staff with the discretion to delay the settlement period until after information disclosures have been made maximizes the Commission's ability to encourage settlement on a casebycase basis.  S- ` ` 5. Referral of Damages Issues  S- ` `  a.The Notice   Sq- 2200.` ` In conjunction with the proposals to resolve liability and damages claims separately using  d(#the supplemental complaint process, we sought comment on the benefits of referring damages issues to  S! - d(#=ALJs for either decision following a finding of liability or, by agreement of the parties, mediation.O1! { {O -ԍXNotice at 20854.(#O We  d(#noted that such referral would be at the discretion of the Commission staff pursuant to delegated authority,  S - d(#depending on the particular facts and circumstances involved.O2 Z{ {O-ԍXNotice at 20854.(#O We also sought alternative proposals that  d(#0would serve to minimize or reduce the need for costly and protracted proceedings on the issue of  S -damages.O3 { {O -ԍXNotice at 20855.(#O  S1- ` `  b.Comments  S- 201.` ` Commenters generally support the referral of damages issues to ALJs.4X~{ yO- v ԍXAT&T Comments at 10; BellSouth Comments at 18; GST Comments at 18; GTE Comments at 13; KMC  v Comments at 18; MFS Comments at 18; SWBT Comments at 10; TRA Comments at 23; U S West Comments at 78.(# ICG compared  S- d(#this procedure to the federal courts' use of special masters.D5{ yO-ԍICG Comments at 21.D BellSouth suggests that parties should have  S- d(#the option of mediation or referral to a special master.J6. { yO_-ԍBellSouth Comments at 18.J KMC asserts that parties need to have the right  Si- d(#lto appeal any decision on damages made by an ALJ.D7i { yO -ԍKMC Comments at 18.D GTE argues that the ALJ should have the  SA- d(#authority to request production of evidence.D8AN { yO/#-ԍGTE Comments at 13.D GTE seeks clarification that an ALJ's authority would be  S-restricted to the resolution of damages issues.D9{ yO%-ԍGTE Comments at 13.D "Wn9,-(-(ZZa"Ԍ S- ` `  c.Discussion  S- p202.` ` We adopt a rule authorizing the Chiefs of the Common Carrier Bureau and Wireless  d(#Telecommunications Bureau to refer damages disputes to ALJs for either decision following a finding of  S`- d(#[liability or, by agreement of the parties, mediation.X:`{ {O-ԍSee Appendix A,  1.722(d)(1).X This rule would work in conjunction with cases in  d(#which liability and damages claims have been severed using the supplemental complaint process. The  d(#commenters generally support the use of ALJs to resolve damages issues. We conclude, despite GTE's  d(#kconcerns regarding the authority of ALJs in damages hearings, that special rules or procedures are not  d(#needed to guide the ALJs in their deliberations given the narrow focus of damages proceedings. The  S- d(#hearing rules provide for the designation of specific issues in the hearing designation order.F;Z{ yO -ԍ47 C.F.R.  1.221.F Once  Sp- d(#liability has been determined, the question of damages is largely a factual one. ALJs are expert triers of  d(#fact well suited to conduct factfinding proceedings. Regarding appeals of ALJ decisions, we note that  S - d(#the ALJ hearing rules provide the means for parties to seek review of an ALJ decision.V< { yO-ԍ47 C.F.R.  1.2711.282.V If the parties  d(#agree to mediation, however, the right to seek review of the ALJ's mediation resolution would be contained within the terms pursuant to which the parties agreed to such mediation.  S -9 ` ` 6. Deposit of Funds into an Escrow Account (#  S0- ` `  a.The Notice   S-  #203.` ` In the Notice we proposed that the Commission be given discretion to require a 9defendant  d(#to place a deposit in an interestbearing escrow account following a finding of liability in cases in which  S- d(#liability and damages claims have been severed using the supplemental complaint process.O=z{ {O-ԍXNotice at 20855.(#O The purpose  d(#Mof such a deposit would be to cover all or part of the damages for which the defendant carrier may be  d(#]found liable in order to provide a complainant with some assurance that a judgment can be readily  S- d(#Mcollected.O> { {O-ԍXNotice at 20855.(#O We proposed that, in exercising this discretion, the Commission would apply standards  S- d(#similar to those used to determine whether a preliminary injunction is appropriate.O?{ {O1 -ԍXNotice at 20855.(#O We emphasized that  S- d(#the Commission would not administer any such account.O@0 { {O"-ԍXNotice at 20855.(#O We sought comment on this proposal as well  S-as alternative proposals that would serve to facilitate and expedite the resolution of damages claims.OA { {O%-ԍXNotice at 20855.(#O "{XT A,-(-(ZZ"Ԍ S- y#/W  y#/W  ` `  b.Comments  S- 3204.` ` Commenters are split over whether or not the Commission could or should require the y#/W  y#/W   d(#deposit of funds into an escrow account following a finding of liability. AT&T, TRA, GST, KMC and  S`- d(#MFS support such a procedure.B`{ yO- v NԍXAT&T Comments at 10; TRA Comments at 23; GST Comments at 18; KMC Comments at 18; MFS Comments at 18.(#Ʃ AT&T, GST, KMC and MFS further support allowing the posting of  S8- d(#Ma bond as an alternative to depositing funds into an escrow account as a means to ensure payment.C8 { yO-ԍXAT&T Comments at 10; GST Comments at 18; KMC Comments at 18; MFS Comments at 18.(#Ɖ  d(#=GST, KMC, and MFS argue that preliminary injunction standards do not need to be met to require such  S- d(#a bond because liability will already have been determined.tD{ yO8 -ԍXGST Comments at 18; KMC Comments at 18; MFS Comments at 18.(#t GST, KMC, and MFS argue that the  d(#Commission should require a showing of irreparable harm and the likelihood that the defendant will  d(#default on the damages award before requiring the posting of a bond or the deposit of funds into an  Sp-escrow account.tEp@{ yOP-ԍXGST Comments at 18; KMC Comments at 18; MFS Comments at 18.(#t  S - `205.` ` CBT, SWBT, GTE, and PTG oppose the proposal, arguing that the Commission lacks  S - d(#authority to impose such a requirement.F { yOh-ԍXCBT Comments at 14; SWBT Comments at 11; GTE Reply at 5; PTG Comments at 2627.(#ƈ CBT, SWBT, and PTG argue that a Commission order for  S - d(#.payment of damages pursuant to Section 209 of the Act is not an enforceable money judgment.xG ` { yO-ԍXCBT comments at 14; SWBT Comments at 11; PTG Comments at 2627.(#x CBT  d(#and SWBT argue that prospective money damages are insufficient to justify a preliminary injunction, and  S - d(#that the proper compensation for any delay in a damages award is the payment of interest.XH { yO-ԍCBT Comments at 6; SWBT Comments at 11.X PTG asserts  d(#=that such a rule creates an unnecessary administrative burden in light of the fact that there is no evidence  S0-of a problem in collecting damages from carriers.GI0 { yOP-ԍPTG Comments at 2627.G  S-  ` `  c.Discussion  S- 206.` ` In cases in which liability and damages claims have been severed using the supplemental  d(#complaint process, following a finding of liability, the Commission shall have discretion to require a  d(#defendant either to post a bond for, or place in an escrow account, an amount the Commission determines is likely to be awarded, if such relief is justified following consideration of the following factors:  S-a)` ` The likelihood of irreparable injury in the absence of such a deposit;(#`  Sx-b)` ` The extent to which damages can be accurately estimated;(#` "xYI,-(-(ZZ"Ԍ S-ԙc)` ` The balance of hardships between complainant and defendant; and(#`  S- d)` ` Whether public interest considerations favor the posting of a bond or establishment of an  S-escrow account.XJ{ {O-ԍSee Appendix A,  1.722(d)(2).X(#`  S8-  207.` ` Requiring the posting of a bond or the deposit of funds into an escrow account both  d(#Lprotects against a defendant's future inability to satisfy an enforceable judgment and removes the benefit  d(#ka defendant receives from delaying payment in a case. Contrary to what several commenters suggest,  d(#>neither the posting of a bond nor the deposit of funds into an escrow account is the enforcement of a  d(#money judgment. The rule does not provide that a complainant may execute its judgment on the bond  d(#or account following a Commission order of damages. The rule merely requires the bond or account to  d(#be set up as a protective measure. Further, this protective measure may only be taken following a finding of liability and a Commission assessment of likely damages.  S - 208.` ` Precedent for the Commission requiring a defendant to deposit funds into an escrow  S - d(#|account following a determination of liability is found in Western Union Telegraph Co. v. TRT  S -Telecommunications Corp., and FTC Communications, Inc.aK Z{ yO|-ԍMemorandum and Order, 11 FCC Rcd 13689 (1996). a  S4- ` ` 7. Additional Suggestions From Commenters  S- ` `  a.The Notice   S- 209.` ` In the Notice we sought alternative proposals that would serve to facilitate and expedite  d(#the resolution of damages claims and/or minimize or reduce the need for costly and protracted proceedings  SG-on the issue of damages.OLG{ {O-ԍXNotice at 20855.(#O  S- ` `  b.Comments  S- ~210.` ` ACTA suggests that the Commission codify the procedure for a complainant to litigate  S-damages in federal court following a finding of liability by the Commission.DM|{ yO-ԍACTA Comments at 8.D  S/- 211.` ` GST suggests providing for targeted discovery during a damages phase, arguing such  d(#discovery should be limited to initial disclosures of witnesses, exchange of documents and one deposition  S-for each party.GN { yO$-ԍGST Comments at 16017.G  S-"ZN,-(-(ZZ-"Ԍ S- ` `  c.Discussion  S- #212.` ` We decline to adopt ACTA's proposal to codify a procedure for litigating damages claims  d(#?in federal court following a finding of liability by the Commission. The Act does not provide the  d(#Commission with the authority to establish federal court procedures. Although federal courts occasionally  d(#refer cases to the Commission for resolution of liability issues, while retaining authority over damages  d(#yissues pending the Commission's liability determination, such referrals are initiated by the courts, not the Commission.  S- 213.` ` We decline to adopt GST's proposal to establish special discovery rules for a supplemental  d(#\complaint proceeding. A supplemental complaint is a formal complaint that is limited to the issue of  d(#]damages because the issue of liability has already been determined in a separate, prior proceeding.  S - d(#[Supplemental complaints are, therefore, subject to the formal complaint discovery rules.RO { {O -ԍSee Appendix A,  1.729.R We conclude  d(#that the formal complaint discovery rules are adequate to address damages claims and the creation of a separate set of discovery rules is unwarranted at this time.  S - K.` ` CrossComplaints and Counterclaims  SX-  S0- 214.` ` The Act imposes new deadlines for actions on certain complaints ranging in length from  S- d(#ninety days to five months from the date of filing.PZ{ {O-ԍXSee, e.g., 47 U.S.C.  208(b), 260(b), 271(d)(6)(B), 275(c).(#ƈ The Notice recognized that the filing of cross d(#complaints or counterclaims during a complaint proceeding could inhibit the Commission's ability to fully  S-resolve disputes within the mandated time frames.OQ{ {OF-ԍXNotice at 20855.(#O  Sj- X` ` 1. The Notice (#  SC-  S-  215.` ` We proposed to allow compulsory counterclaims only if filed concurrently with the  d(#answer, such that the failure to file with the answer would bar the defendant from filing such compulsory  S- d(#counterclaim.OR~{ {O-ԍXNotice at 20855.(#O We also proposed that a defendant electing to file permissive counterclaims and cross d(#claims would be required to file such pleadings concurrently with its answer, leaving the defendant with  d(#the option of filing any barred permissive counterclaims or crossclaims in a separate proceeding, provided  SS- d(#that the statute of limitations has not run.OSS{ {O"-ԍXNotice at 20855.(#O We also proposed to revise our rules to clarify the  S+-applicability of filing fees to complaints, crosscomplaints, and counterclaims.OT+{ {Om$-ԍXNotice at 20856.(#O "[4 T,-(-(ZZz"Ԍ S-X ` ` 2. Comment (#  S- n216.` ` CompTel and TRA support the Commission's proposals.dU{ yO-ԍXCompTel Comments at 10; TRA Comments at 24.(#d Most commenters, however,  d(#oppose establishing a category of compulsory counterclaims that will be barred if not filed concurrently  S`- d(#with an answer.zV`X{ {OX-ԍXSee e.g., AT&T Comments at 1112; NYNEX Comments at 1314. (#z AT&T, BellSouth, PTG, and NYNEX argue that the time to answer (twenty days) is  d(#insufficient to allow a defendant to answer the complaint, ascertain all possible counterclaims and prepare  d(#such counterclaims for filing and service in accordance with the proposed format and content  S- d(#requirements.W{ yOr - v ԍXAT&T Comments at 1112; BellSouth Comments at 18; NYNEX Comments at 1314; PTG Comments at 2728.(#Ʀ GTE further argues that defendants may be reasonably unaware of their counterclaims  S- d(#prior to the date an answer is due.LXB{ yO-ԍXGTE Comments at 14.(#L CBT, GST, KMC, and MFS suggest that compulsory counterclaims  d(#filed with the answer should not be subjected to the same high levels of evidentiary support as required  Sp- d(#of the complaint.Yp{ yO-ԍXCBT Comments at 1415; GST Comments at 19; KMC Comments at 19; MFS Comments at 19.(#Ƌ AT&T and NYNEX support a rule requiring counterclaims and crosscomplaints not  SH - d(#filed concurrently with the answer to be brought in separate proceedings.[ZH b { yOJ-ԍAT&T Comments at 12; Nynex Comments at 14.[ CBT and U S West argue that  d(#the Commission's jurisdiction over counterclaims is limited to instances where both parties to a proceeding  d(#=are carriers and the counterclaim involves an allegation of a violation by the complainant that could itself  S -be the subject of a separate complaint before the Commission.[ { {Ob- v .ԍXCBT Reply at 6; U S West Comments at 14; see also MCI Telecommunications Corp. v. FCC, 59 F.3d 1407  yO,-(D.C. Cir. 1995).(#  S -X ` ` 3. Discussion (#  S0- $217.` ` We require all crosscomplaints and counterclaims to be filed as separate, independent  S- d(#actions.X\L { {O-ԍSee Appendix A,  1.725.X While the Notice originally proposed to distinguish between the treatment of compulsory and  d(#permissive crosscomplaints and counterclaims, we have decided that banning all crosscomplaints and  d(#/counterclaims is necessary in light of the statutory deadlines in the 1996 Act. Crosscomplaints and  d(#counterclaims would not be filed until twenty days into an ongoing proceeding, thereby shortening the  d(# time within which the Commission may adequately consider and resolve such claims. Establishing a  d(#category of compulsory counterclaims, furthermore, would have created an inconsistency between the  d(#.treatment of claims by complainants and counterclaims by defendants. Under such a rule, complainants  S- d(#ywould be permitted to file separate formal complaints based on claims arising out of the same transaction"\\,-(-(ZZR"  d(#or occurrence as a pending formal complaint, but defendants would be barred from filing counterclaims  S-once the answer had been filed.m]{ {O@-ԍSee supra "Motions, Amendments to Complaints" section.m  S- 218.` ` The rule we adopt also satisfies the concerns of some commenters that the Commission  d(#Lonly has jurisdiction to consider those claims that the defendant could have filed against the complainant  d(#/independent of the ongoing litigation. That is, the Commission does not have the authority to assert  d(#jpendent jurisdiction over disputes for which no independent jurisdictional ground exists. In light of both  d(#the time constraints within which the Commission must work and the nature of allowable crosscomplaints  d(#and counterclaims, we conclude that all such claims are better treated as individual complaints. To  d(#Lpreclude the possibility of inconsistent rulings on identical facts, a complainant filing a formal complaint  d(#ythat shares any factual basis with another formal complaint to which the complainant is a party, whether  d(#=ongoing or finally resolved, must include this fact in such formal complaint and its accompanying formal  S - d(#jcomplaint intake form.Y^ Z{ {O-ԍSee Appendix A,  1.721(a)(12).Y We note that, under the broad powers of Section 208, the Commission always  d(#<has the authority to consolidate separate complaint cases. Where appropriate, the staff will have discretion  d(#to consolidate cases so that all claims arising out of the same transaction or occurrence may be adjudicated in a single proceeding.  SX-  219.` ` We decline to adopt our proposal to revise our rules to clarify the applicability of filing  d(#fees to crosscomplaints and counterclaims. Such a rule would be moot in light of the rule adopted prohibiting all crosscomplaints and counterclaims.  S- L.` ` Replies   Sh- ` ` 1. The Notice   S- 220.` ` We proposed to prohibit replies to answers unless specifically authorized by the  S- d(#Commission.G_{ {O}-ԍNotice at 20856.G We noted that our rules made filing a reply voluntary, and that failure to reply was not  d(#]deemed to be an admission of any allegation contained in the answer, except for facts contained in  S- d(#affirmative defenses.G`~{ {O-ԍNotice at 20856.G We proposed to authorize replies only upon a complainant's motion, filed within  Sy- d(#jfive days of service of the answer,Oay{ {O)!-ԍXNotice at 20856.(#O showing good cause to reply to any affirmative defenses supported  SQ- d(#by factual allegations that were different from any denials also contained in the answer.GbQ{ {O#-ԍNotice at 20856.G We also  d(#proposed to provide that a complainant's failure to file a reply to an answer would be deemed a denial  S-of any affirmative defenses.Gc4 { {O&-ԍNotice at 20856.G"] c,-(-(ZZz"Ԍ S-  ԙ221.` ` We also proposed to prohibit replies to oppositions to motions.Gd{ {Oh-ԍNotice at 20857.G We stated our belief  d(#that such replies seldom aid the Commission in resolving factual or legal issues and were often used to  S- d(#repeat information already contained within the original motion itself.GeZ{ {O-ԍNotice at 20857.G We sought comment on this and  S-any other alternative proposals.Gf{ {O-ԍNotice at 20857.G  S8- ` ` 2. Comments  S- 222.` ` Many commenters, including AT&T, BellSouth, GST, KMC, MFS, GTE, NYNEX, and  S- d(#TRA support our proposals to prohibit, in most instances, replies to defendants' answers.g~{ yO - v yԍXAT&T Comments at 13; BellSouth Comments at 19; GST Comments at 20; KMC Comments at 1920; MFS Comments at 1920; GTE Comments at 14; TRA Comments at 24.(# They agree  d(#that replies are unnecessary and redundant as long as complainants are deemed to have denied all  d(#[affirmative defenses and are permitted to respond for good cause, such as a showing that a defendant has  SH - d(#misrepresented pertinent facts.hH { yO- v yԍXAT&T Comments at 13; BellSouth Comments at 19; GST Comments at 20; KMC Comments at 1920; MFS Comments at 1920; GTE Comments at 14; TRA Comments at 24.(# ATSI and the cable entities, however, argue that a reply is necessary  d(#=to give a complainant the opportunity to respond to matters that might be raised for the first time in the  S - d(#answer and to withdraw claims that may have been satisfactorily addressed in the answer.ji . { yO-ԍXATSI Comments at 18; Cable Entities Reply at 89.(#j NYNEX  d(#argues that a complainant should be permitted to file a reply to an answer if it is replying to an affirmative  d(#defense and it is relying on factual allegations that are different from any denials contained in the  S - d(#answer.Nj { yO-ԍXNYNEX Comments at 14.(#N ICG argues that prohibiting replies would generate more work for the Commission, in the form  SX-of responding to motions for leave to file replies.LkXN { yOF-ԍXICG Comments at 22.(#L  S- 223.` ` Regarding our proposal to prohibit replies to oppositions to motions, PTG points out that  S- d(#Section 1.727(f) of the Commission's existing rules already prohibits replies to oppositions to motions.Ll{ yO^!-ԍXPTG Comments at 28.(#L  d(#CompTel, GST, KMC, MFS, and GTE assert that replies to oppositions to motions may be warranted  S-where the opposition distorts facts or where matters are raised for the first time in the opposition.mn{ yO$- v ԍXCompTel Comments at 10; GST Comments at 20; KMC Comments at 20; MFS Comments at 20; GTE Comments at 14.(#Ƭ "h^m,-(-(ZZ"Ԍ S- ` ` 3. Discussion  S-  S- 224.` ` We modify our proposed rule and permit complainants to file replies that respond only  S- d(#kto affirmative defenses.Un{ {O-ԍSee Appendix A,  1.726(a).U We shall deem any failure to reply to an asserted affirmative defense as an  d(#admission of such affirmative defense and of any facts supporting such affirmative defense that are not  S8- d(#specifically contradicted in the complaint.Uo8Z{ {O2-ԍSee Appendix A,  1.726(b).U We note that the Notice originally proposed to require parties  d(#=to move for leave to file replies to affirmative defenses and that failure to reply to an affirmative defense  S- d(#would be deemed a denial of such defense. The rule we adopt departs from our proposal in the Notice  d(#because we are persuaded by the commenters that requiring complainants to seek leave to file replies to  d(#affirmative defenses is likely to generate unnecessary work for the staff. Instead, we have chosen to limit  d(#replies to those that respond to new allegations raised in an answer in the form of affirmative defenses.  d(#Complainants will be required to support their replies to affirmative defenses in the same manner that they  S$ - d(#lare required to support their claims in the complaint.Yp$ { {O-ԍSee Appendix A,  1.726(c)(e).Y This requirement will aid the staff by the  d(#presentation of specific evidence regarding each affirmative defense. General replies to answers, however,  d(#Lare often redundant and unnecessary because complainants simply repeat claims that were filed with the  d(#yoriginal complaint. Such general replies are prohibited. We do not modify the existing rule that prohibits replies to oppositions to motions.  S4- M.` ` Motions   S-  B225.` ` The Notice proposed to modify the rules pertaining to motions in order to enhance the  d(#efficiency of the formal complaint process, expedite the filing and consideration of motions, and eliminate  S-unnecessary or duplicative pleadings.Gq~{ {O-ԍNotice at 20857.G  SF- ` ` 1. The Filing of Motions  S- ` `  a.The Notice  S-  S-  226.` ` In the Notice, we proposed to require a party filing a motion to compel discovery to  S- d(#certify that it had made a good faith attempt to resolve the matter before filing the motion.Gr{ {O1!-ԍNotice at 20857.G We also  d(#proposed to eliminate motions to make the complaint "definite and certain," stating that, under the  d(#kproposed rules, complaints would have to be very definite and certain to avoid being dismissed at the  S -outset.Gs { {OK%-ԍNotice at 20857.G "_4 s,-(-(ZZ["Ԍ S-` ` `  b.Comments  S- %227.` ` All parties that commented on this issue agree that the Commission should require  d(#`certification of good faith attempts to resolve discovery disputes informally as a condition to the filing of  S`- d(#Kany motion to compel.t`{ {O-ԍXSee, e.g., AT&T Comments at 14; GTE Comments at 14; TRA Comments at 24.(#ƌ Commenters also support the proposal to eliminate motions to make a complaint  S8- d(#more definite and certain.~u8Z{ {O2-ԍXSee, e.g., AT&T Comments at 1314; TRA Comments at 2425.(#~ BellSouth supports eliminating motions to make complaints "definite and  d(#certain" as long as the Commission will consider motions to dismiss for failure to state a claim or failure  S-to comply with procedural requirements.Rv{ yOt -ԍXBellSouth Comments at 19.(#R  S- ` `  c.Discussion  SH -  228.` ` We require a party that files a motion to compel answers to discovery requests to certify  S - d(#that it has made a good faith attempt to resolve the matter before filing the motion.Uw |{ {O<-ԍSee Appendix A,  1.727(b).U We conclude, and  d(#commenting parties agree, that adoption of this rule will limit Commission involvement in conflicts that may be easily resolved by the parties themselves.  S - 229.` ` Motions to make the complaint "definite and certain" are prohibited,Ux { {O.-ԍSee Appendix A,  1.727(g).U as such motions  d(#should be superfluous under the new format and content requirements for initial pleadings. BellSouth's  d(#suggestion that the Commission consider motions to dismiss is inapposite to our decision to eliminate  d(#motions to make a complaint "definite and certain." The rationale for eliminating motions to make  d(#zcomplaints more "definite and certain" is that our newlyadopted stringent pleading requirements will  d(#ensure the filing of complaints that are "definite and certain." We do not intend to prohibit the filing of  d(#motions to dismiss a complaint for failure to state a claim or failure to comply with procedural requirements.  S- ` ` 2. Oppositions To Motions  S- ` ` a. The Notice   Sy- `230.` ` In the Notice, we stated our intent to expedite further formal complaint proceedings by  SS- d(#<modifying the rules regarding oppositions to motions.GyS{ {O#-ԍNotice at 20857.G We proposed to make failure to file an opposition  S+- d(#kto a motion possible grounds for granting the motion,Gz+2 { {O%-ԍNotice at 20857.G although the filing of oppositions to motions y#/W "+` z,-(-(ZZ"  S- d(#[ y#/W would remain permissive.G{{ {Oh-ԍNotice at 20857.G Additionally, we proposed to shorten the deadline for filing oppositions to  S-motions from ten to five business days.G|Z{ {O-ԍNotice at 20857.G  S- ` `  b.Comments  S8-  231.` ` GST, KMC, MFS, NYNEX, and SWBT support the proposal to make failure to file an  d(#opposition to a motion possible grounds for granting the motion, arguing that it is reasonable to require  S- d(#a party to articulate its reasons for opposing a motion.}{ yOt - v ԍXGST Comments at 21; KMC Comments at 21; MFS Comments at 21; NYNEX Comments at 15; SWBT Comments at 12.(#ƫ ACTA, however, opposes such a proposal,  d(#arguing that if the failure to file an opposition can be grounds for granting a motion, the filing of an  S- d(#opposition will not be permissive in any real sense.L~D{ yO|-ԍXACTA Comments at 8.(#L AT&T warned that failure to file an opposition to  Sp-a motion should not be an automatic basis for granting the motion.Tp{ yO-ԍXAT&T Comments at 14, n. 13.(#T  S - 232.` ` Many commenters, including AT&T, BellSouth, GTE, PTG, SWBT, and TRA, support  S - d(#the shortening of the period to file an opposition to a motion to five business days. d { yO- v ԍXAT&T Comments at 17; BellSouth Comments at 19; GTE Comments at 15; PTG Comments at 29; SWBT Comments at 12; TRA Comments at 25.(# GTE suggests that  d(#the rules provide a procedure to seek an extension of time to oppose a motion when circumstances warrant  S - d(#it.L { yO-ԍXGTE Comments at 15.(#L PTG suggests that motions be served by facsimile to give parties more time to respond.L L { yO-ԍXPTG Comments at 29.(#L CBT  d(#kopposes the shortening of time, arguing that more time is needed to respond to complex motions, and  SX-suggests instead that the time for filing be reduced to ten calendar days rather than five business days.LX{ yO-ԍXCBT Comments at 15.(#L  S- ` `  c.Discussion  S-  `233.` ` A party's failure to file an opposition to a motion is possible grounds for granting such  S- d(#motion.Ul{ {O$-ԍSee Appendix A,  1.727(e).U We note that the commenters misconstrue the meaning of the statement that it is "permissive"  d(#to file an opposition to a motion. This statement merely means that the Commission does not require a  d(#=party to take affirmative steps to oppose a motion against it. This rule does not, however, alleviate any  d(#party's burden to represent fully its own interests before the Commission. Any party that chooses not to"a,-(-(ZZ"  d(#=file an opposition to a motion runs the risk that the motion will be granted without consideration of that  d(#=party's views. Because the Commission is prohibited from acting in an arbitrary and capricious manner,  d(#staff will not grant unopposed motions that are frivolous, inconsistent with the Commission's rules, or that may create unnecessary delay.  S8-  A234.` ` The deadline to file an opposition to a motion is five business days, with the time running  S- d(#from the date service is effective.U{ {Ox-ԍSee Appendix A,  1.727(e).U Reduction of the number of days a party has to respond to a motion  d(#will speed up the motions process. We disagree with CBT's suggestion to use ten calendar days rather  d(#than five business days to determine filing due dates because we find that a reduction to ten calendar days  d(#will not save sufficient time in light of the statutory deadlines in the Act. Five business days will provide  d(#the opposing party with seven calendar days to prepare, file and serve an opposition, with exceptions for  d(#when a holiday falls in the five business day period. Ten business days would provide the opposing party  d(#Lwith fourteen calendar days to prepare, file and serve an opposition, with exceptions for when a holiday  S - d(#falls in the ten business day period. In contrast to this, CBT's proposed ten calendar days would provide  S - d(#the opposing party with ten to thirteen calendar days, depending on the day of the week the motion is  d(#served and filed and the existence of holidays. In response to PTG's suggestion that motions be served  d(#zby facsimile, we note that this proceeding adopts rules requiring service of motions by handdelivery,  SX-overnight delivery, or facsimile transmission followed by mail delivery.]XZ{ {OR-ԍXSee Appendix A,  1.735(f).(#]  S- ` ` 3. Format, Content, and Specifications of Motions and Orders  S- ` `  a.The Notice  S-  Si- 3235.` ` To ease the burden on Commission staff in drafting decisional documents within short  SA- d(#time frames, the Notice proposed to require all pleadings seeking Commission orders to contain proposed  S- d(#findings of fact and conclusions of law with supporting legal analysis.O{ {O-ԍXNotice at 20840.(#O The Notice also proposed that  d(#all parties submit with their procedural or discovery motions and oppositions to such motions, proposed  d(#=orders, in both hard copy and disk, that incorporate the legal and factual bases for granting the requested  S- d(#=relief.O~{ {O-ԍXNotice at 20840.(#O The Notice proposed that the computer disk submissions be formatted in WordPerfect 5.1, the  S- d(#Zwordprocessing system currently used by the Commission.O{ {O/!-ԍXNotice at 20840.(#O Furthermore, we proposed to require parties  SW- d(#=to conform the format of any proposed order to that of a reported FCC order.OW{ {O#-ԍXNotice at 20840.(#O Such proposals would  d(#Lreduce the burden on Commission staff in drafting orders and letter rulings by enabling the staff to either"/b4 ,-(-(ZZ"  d(#incorporate relevant portions of the parties' submissions into the required orders or use the parties'  S-submissions in their entirety.U{ {O@-ԍXNotice at 20840.(#U  S- ` `  b.Comments  S8- P236.` ` ACTA and BellSouth agree with the proposal to require all pleadings seeking Commission  S- d(#orders to contain proposed findings of fact and conclusions of law with supporting legal analysis.fZ{ yO -ԍXACTA Comments at 4; BellSouth Comments at 12.(#f  d(#ACTA states that the added cost to the parties of such submissions would be offset by the value of such  S- d(#filing in expediting the resolution of cases.L{ yOJ -ԍXACTA Comments at 4.(#L On the other hand, MCI, PTG, and CBT argue that such  d(#inclusions would only be appropriate for certain pleadings, such as briefs or motions for summary  d(#judgment, because parties may be unprepared to make such conclusions prior to conducting discovery and  SH -reviewing opposing pleadings.sH z{ yOb-ԍXMCI Comments at 16; PTG Comments at 11; CBT Comments at 9.(#s  S - }237.` ` Commenters generally did not oppose the proposals to require parties making or opposing  d(#yprocedural or discovery motions to submit proposed orders, in both hard copy and disk, that conform to  S - d(#the format of reported FCC orders.i { {OR-ԍXSee, e.g., BellSouth Comments at 12.(#i CBT additionally suggests that parties be allowed to submit  S - d(#\proposed orders in formats other than WordPerfect 5.1.K { yO-ԍXCBT Comments at 9.(#K MCI opposes requiring parties to submit  d(#\proposed orders with their motions and oppositions proposal, arguing that such a rule will be largely  d(#inapplicable because most motions will be discovery motions, which are resolved by informal letter orders  S- d(#that are not in the format of Commission orders.L, { yO-ԍXMCI Comments at 16.(#L NAD argues that this proposal will be too burdensome  S-for consumers with disabilities.H { yO<-ԍXNAD Reply at 5.(#H  S- ` `  c.Discussion  S@- 238.` ` After consideration of the comments received, we modify the rule proposed and will  d(#require only those pleadings seeking dispositive orders to contain proposed findings of fact and  S- d(#conclusions of law with supporting legal analysis.ZL { {O$-ԍSee Appendix A,  1.727(b)Z We define a dispositive order as an order that finally"c,-(-(ZZR"  S- d(#resolves one or more claims in a complaint.{ yOh- v ԍXAn example of a dispositive order is an order granting a motion for summary judgment. For an order to be considered dispositive, it is not necessary that it be a final appealable order by the Commission.(# We conclude that this requirement is justified in  d(#ythese limited circumstances because it will help to ensure that issues and arguments are better framed and  d(#presented to the Commission. We agree with MCI, PTG, and CBT that such a requirement would not be  d(#.appropriate for interlocutory motions, such as those seeking discovery or extensions of time. Requiring  d(#complete support for dispositive motions will decrease substantially the number of unnecessary motions  d(#filed with the Commission because parties will be reluctant to file motions for which they have no factual  d(#or legal basis. This requirement will also give Commission staff the option of incorporating the proposed  d(#findings of fact and conclusions of law with supporting legal analysis into orders, thereby easing the burden of drafting orders.  Sp-  Q239.` ` To further facilitate the drafting of orders and letter rulings, we adopt our proposals to  d(#require parties to submit with their procedural or discovery motions and oppositions to such motions,  d(#=proposed orders, in both hard copy and disk, that incorporate the legal and factual bases for granting the  S - d(#requested relief.` { {O-ԍSee Appendix A,  1.727(c), (d).` Although some commenters argue that such a requirement may often be inapplicable  d(#to discovery and too burdensome for persons with disabilities, we conclude that the benefits of such a rule  S - d(#jjustify it. { yO- v ԍXThe rules adopted in this proceeding will not apply to complaints filed pursuant to Section 255 of the Act.  {M-See Section 255 NOI.(# The Commission anticipates addressing a large number of complaints on an expedited basis.  d(#In light of the Commission's limited resources, it will be of great assistance to Commission staff to have  d(#the relief sought or opposed by motion, and the basis therefore, set out clearly and concisely in a proposed  d(#order format. Having such a proposed order, in hard copy and on disk, will assist in the timely release  d(#of orders or letter rulings on motions. Requiring a party to articulate the relief sought in an order may  d(#also produce more clearly focused arguments. We also conclude that this requirement does not overly  d(#yburden parties, who merely have to transfer a portion of the text of their motions or oppositions into the  d(#format of an order. Finally, if submission of such a draft order does place a large burden on a particular party, the staff retains the discretion to waive this requirement on a casebycase basis.  S- 240.` ` We modify our proposed rule concerning the submission of proposed orders on disk.m { {O-ԍSee Appendix A,  1.734(d).m  d(#We require that computer disk submissions be formatted in the Commission's designated "wordprocessing  d(# program," rather than specifically "WordPerfect 5.1," because the Commission may decide to utilize  d(#different software in the future. We also decline to adopt CBT's proposal to permit parties to submit  d(#=documents in alternative wordprocessing formats. Because of conversion difficulties, parties will not be  d(#permitted to submit documents in any wordprocessing format not used by the Commission. The staff has  d(#discretion to grant waivers of this requirement to parties upon a showing that such wordprocessing program is unavailable to them. "d,-(-(ZZ="Ԍ S-9 ` ` 4. Amendments To Complaints  S- ` `  a.The Notice   Sa-  }241.` ` We stated in the Notice that compliance with deadlines in the Act requires that a 9complaint  S;- d(#Lbe fully developed prior to filing.M;{ {O-ԍNotice at 20858.M In furtherance of this goal, we proposed to prohibit the amendment  d(#of complaints except for changes necessary under 47 C.F.R.  1.720(g), which requires that information  S- d(#and supporting authority be current and updated as necessary in a timely manner.MZ{ {O -ԍNotice at 20858.M This would preclude  S-a complainant from introducing new issues late in the  development of the case.M{ {OO -ԍNotice at 20858.M  Ss- ` `  b.Comments  S# - A242.` ` BellSouth, PTG, and SWBT support prohibiting amendments to complaints because such  d(#ya bar will encourage compliance with the proposed prefiling requirements and result in a fully developed  S - d(#complaint that conforms to format and content requirements.{ ~{ yO-ԍXBellSouth Comments at 19; PTG Comments at 30; SWBT Comments at 12.(#{ Several commenters, however, oppose the  d(#prohibition. ACTA, GTE, ICG, MCI, and TRA suggest allowing complaints to be amended for good  S - d(#cause, e.g. if the complainant could not have reasonably ascertained certain facts at the time of filing of  S]- d(#the complaint.]{ yO -ԍXACTA Comments at 8; GTE Comments at 15; ICG Comments at 22; TRA Comments at 25.(#ƈ MCI expresses concern that such a prohibition might reward monopoly carriers who  S5- d(#?withhold information.]5{ yOs-ԍXMCI Comments at 23; MCI Reply at 10.(#] CBT and PTG suggest that any amended complaint be treated as a new  S -complaint to restart the statutory resolution deadline.` . { yO-ԍXCBT Comments at 15.; PTG Comments at 30(#`  S- ` `  c.Discussion  Sm- 243.` ` The Act requires expedited resolution of certain complaints. An amendment to a  d(#ycomplaint subject to a statutory deadline on a showing of good cause would require the resolution of that  d(#claim in a shorter period than provided for in the statutory deadline. We believe that the cost of  d(#expediting complaint resolutions more than Congress anticipated would outweigh any benefit to be had  d(#yfrom allowing such amendments. Further, we are not persuaded by the arguments of ACTA, GTE, ICG,  d(#TRA, and MCI that prohibiting amendments to complaints will unduly prejudice complainants to the  d(#benefit of defendants. We also decline to adopt the suggestion of CBT and PTG that, instead of  d(#.prohibiting amendments to complaints, we treat amended complaints as new complaints and restart any  d(#.statutory deadline on the date of the "new complaint." We are not persuaded that our "treatment" of an  d(#amended complaint as a new complaint would comply with the statutory deadline requirements. We note"e ,-(-(ZZ"  d(#that a complainant is not prohibited from filing a separate formal complaint if it discovers a new claim  d(#<at some later point in the complaint process. In addition, where appropriate, the staff may consolidate two  d(#or more complaints to adjudicate all claims arising out of the same transaction or occurrence in one  S- d(#proceeding.v{ {O-ԍXSee supra "CrossComplaints and Counterclaims" section.(#v Thus, we adopt a rule generally prohibiting all amendments to complaints._Z{ {O-ԍXSee Appendix A,  1.727(h). (#_ We note that  d(#this prohibition on amendments in no way relieves the parties of their obligation under section 1.720(g)  d(#of the Commission's rules to maintain the accuracy and completeness of all information and supporting  S- d(#authority furnished to the Commission in a pending proceeding.?X{ yO - v ԍX47 C.F.R.  1.720(g). These rules draw a clear distinction between adding new counts or arguments to a  v complaint through an amendment and updating previously furnished information to ensure its completeness and accuracy.(#? In addition, we note that complainants  d(#.always have the option of filing their complaints in federal court if they conclude that the Commission's  d(#rules will not afford them the pleading opportunities they need. The Commission's rules have long  d(#included a fact pleading requirement designed to ensure that a party has sufficient knowledge of its claims  Sp-before filing its complaint.p { {O- v yԍXSee, Amendment of Rules governing Procedures to be Followed Where Formal Complaints are Filed Against  {O-Common Carriers, Report and Order, 3 FCC Rcd. 1806 (1988).(#  S - ` ` 5. Additional Suggestions From Commenters  S - ` `  a.The Notice   S -244.` ` In the Notice, we sought alternative proposals to modify the rules regarding motions.G h { {O-ԍNotice at 20858.G   S3- ` `  b.Comments  S- 245.` ` BellSouth suggests that any request for an interlocutory ruling be deemed a voluntary  S- d(#waiver of any applicable statutory deadline shorter than five months.R { yOU-ԍBellSouth Reply Comments at 2, 4.R BellSouth reasons that, given the  d(#Commission's limited resources, such a rule is the only way to discourage the filing of timeconsuming motions that will preclude Commission staff from meeting the statutory deadlines.  S-246.` ` AT&T and ICG suggest requiring parties to give advance notice of motions to be filed.Y { yOE#-ԍAT&T Comments at 14; ICG Comments at 22.Y  S- 247.` ` PTG suggests that the Commission make a commitment to decide all motions within thirty  S-days of filing, rather than waiting until the final order is issued.G{ yO]'-ԍPTG Comments at 2829.G"f ,-(-(ZZ"Ԍ S-ԙ ` `  c.Discussion  S- Q248.` ` We decline to adopt BellSouth's suggestion that a request for an interlocutory ruling be  d(#ydeemed a waiver of the applicability of any statutory deadline shorter than five months. As discussed in  S`- d(#the "Damages" section,[`{ {O-ԍXSee supra "Damages" section.(#[ the parties to a formal complaint proceeding do not have the authority to waive  S8- d(#statutory deadlines, with the exception of the Section 271(d)(6)(B) ninetyday deadline.8Z{ yO2- v ԍXSection 271(d)(6)(B) states that "[u]nless the parties otherwise agree, the Commission shall act on such complaint within 90 days." 47 U.S.C.  271(d)(6)(B).(# Even if the  d(#parties did have such authority, a rule that allowed a party to waive a statutory deadline by filing any type  d(#of interlocutory motion would provide a means for such party to manipulate the deadline and, thereby, eviscerate the intent of the Act to provide expedited resolution for certain complaints.  Sp-  a249.` ` We decline to adopt a rule requiring parties to provide notice of their intent to file a  d(#=motion because we find that such a requirement would not further the timely resolution of motions. We  d(#\do require parties to certify in any motions to compel discovery that good faith efforts to resolve the  S - d(#discovery dispute were undertaken prior to the filing of the motion.U { {OJ-ԍSee Appendix A,  1.727(b).U That rule will provide early notice  d(#kof a party's intent to file such a motion. Other types of motions do not slow down formal complaint  d(#proceedings significantly because, unlike discovery disputes, they generally do not need to be resolved  d(#to enable parties to support their claims in briefs. Furthermore, the delivery of all motions will be  d(#expedited by our requirement that parties serve all motions by hand delivery, overnight delivery, or facsimile transmission followed by mail delivery.  S-  250.` ` We decline to adopt a rule requiring the Commission to rule on all motions within thirty  d(#Ldays. The intent of this rulemaking is to speed up resolution of formal complaints and, to the extent the  d(#[early disposition of a pending motion would further such intent, the Commission will rule on motions as  d(# expeditiously as possible. We do not, however, see the benefit of constraining Commission staff by imposing a requirement that all motions be resolved within thirty days.  S- N.` ` Confidential or Proprietary Information and Materials   S- 251.` ` In 1993, the Commission revised its rules to require a party asserting the confidentiality  d(#[of any materials subject to a discovery request to mark clearly the relevant portions as being proprietary  SP- d(#information. If the proprietary designation is challenged, that party bears the burden of demonstrating,  d(#by a preponderance of the evidence, that the material falls under the standards for nondisclosure  S-enunciated in the Freedom of Information Act ("FOIA").XD{ {O"-ԍXSee 47 C.F.R.  1.731.(#X  S-X` ` 1. The Notice (#  Sa- }252.` ` Because the format and content proposals may require parties to exchange information and  d(#materials with their initial pleadings, the Commission proposed to allow parties to designate as confidential"9g,-(-(ZZ "  d(#yor proprietary any materials generated in the course of a formal complaint, and not limit such designation  S- d(#to materials produced in response to discovery requests.S{ {O@-ԍNotice at 20858.S We sought comment on this proposal as well  d(#[as on whether additional procedures were needed in light of the shortened complaint resolution deadlines  S-in the Act and our proposals in the Notice to eliminate certain pleading and discovery opportunities.SZ{ {O-ԍNotice at 20858.S  S:-X` ` 2. Comments (#  S- C253.` ` All of the parties who commented agree that the proposal will encourage parties to  S- d(#jexchange information without fear of public dissemination.{ {ON -ԍXSee, e.g., BellSouth Comments at 20; CompTel Comments at 11.(#Ƈ While it supports the Commission's goals,  d(#ACTA notes that the potential for abuse exists because parties may excessively and unnecessarily label  Sr- d(#Ldocuments and information as confidential or proprietary.Lr~{ yO-ԍXACTA Comments at 9.(#L MCI requests that the Commission clarify  d(#[that information considered confidential due to its proprietary, sensitive or competitive nature cannot be  S" -withheld from production on that ground.O" { yO-ԍXMCI Comments at 2324.(#O  S - ` ` 3. Discussion (#`  S - 254.` ` We conclude that parties shall be allowed to designate as confidential or proprietary any  SZ- d(#materials generated in the course of a formal complaint proceeding.]Z{ {O-ԍXSee Appendix A,  1.731(a).(#] The commenters support imposing  d(#this requirement. We find that, because all parties may have information that is both relevant to a dispute  d(#and competitively sensitive, parties must be assured of protection for their confidential or proprietary  d(#information if we want to avoid the time consuming process of resolving disputes over the treatment of  d(#documents and information sought to be exchanged, regardless of whether the information is produced  d(#-in response to discovery requests or not. We disagree with ACTA's contention that this requirement might  d(#be more subject to abuse than the prior requirement limiting confidential or proprietary designations to  d(#\materials produced in response to discovery requests. We emphasize that designating information or  d(#materials as confidential or proprietary will not prevent the information or materials from being produced,  d(#Ltherefore, parties will have little to gain by falsely claiming that materials are confidential or proprietary.  d(#Furthermore, if a proprietary designation is challenged, the party claiming confidentiality will continue  d(#to bear the burden of demonstrating, by a preponderance of the evidence, that the material designated as proprietary falls under the FOIA's standards for nondisclosure.  S*- 255.` ` The modification of the rule providing for designation of material disclosed in the course  d(#of a formal complaint proceedings is merely an extension of the previous rule, which allowed for the  d(#=designation of materials that were disclosed in response to discovery as confidential and proprietary. In  d(#current practice, parties that reference facts in or attach materials to briefs that have been designated as"h0 ,-(-(ZZ<"  d(#yconfidential or proprietary serve two copies on opposing parties, a public copy that has had confidential  d(#ymaterials redacted and is clearly marked "Public Copy" and a confidential copy that contains the material  d(#that was redacted from the public copy and is clearly marked "Confidential Copy." In addition, the filing  d(#party files the public copy with the Office of the Secretary and files the confidential copy directly with  d(#zthe Commission staff attorney that is handling the matter. This practice will not change. In addition,  d(#where a complainant references facts in or attaches materials to its complaint that have been designated  d(#as confidential or proprietary, the procedure is substantially the same. A confidential copy of the  d(#zcomplaint must be filed under seal directly with the Branch Chief on which it is required to serve two  S-copies of the complaint.{ {O( -ԍXSee infra, "Service, Personal Service of Formal Complaints on Defendants" Section.(#Ƒ  Sp- O.` ` Other Required Submissions  S - ` ` 1. Joint Statement of Stipulated Facts (#`  S -XX` ` X a.XThe Notice (#  S -  S -  256.` ` The Notice proposed to require parties to submit a joint statement of stipulated facts and  S[- d(#key legal issues five days after the answer is filed.X[Z{ {OU-ԍXNotice at 2085859.(#X We noted that the "rocket docket" rules in the  d(#United States District Court for the Eastern District of Virginia require parties to submit written  S - d(#Mstipulations of all uncontested facts prior to trial.qX { yO- v ԍXRule 13 of the Rules of the Eastern District of Virginia requires that, prior to the pretrial conference,  v counsel meet to exchange witness and exhibit lists and to create written stipulations of all uncontested facts to be submitted at the pretrial conference. E.D. Va. R. 13. (#q We stated our belief that requiring the parties to  d(#ysubmit a joint statement of stipulated facts and key legal issues at this stage might promote agreement on  d(#a significant number of the disputed facts and legal issues, as well as help the Commission to determine  S-whether or to what extent discovery is necessary.X { {O?-ԍXNotice at 2085859.(#X  SC-X` `  b.Comments (#  S- 257.` ` Most parties support this proposal.{ {O1 -ԍXSee, e.g., AT&T Comments at 19; GTE Comments at 16; TRA Comments at 25.(#ƒ Many commenters, however, suggest that the joint  S- d(#Lstatement be submitted later in the process to give parties more time to meet and negotiate.0 { {O"-ԍXSee, e.g., AT&T Comments at 19; CBT Reply at 7; Cable Entities Reply at 9; Nextlink Comments at 7.(#Ƴ U S West  S- d(#additionally suggests requiring a joint statement of facts in dispute.Q { yO%-ԍXU S West Comments at 12.(#Q Bechtel & Cole suggest requiring"iR ,-(-(ZZ"  S- d(#=a joint statement that includes an outline of factual claims and legal arguments,V{ yOh-ԍXBechtel & Cole Comments at 4.(#V and BellSouth suggests  S- d(#permitting parties to file unilateral statements if the parties cannot reach agreement in time.RX{ yO-ԍXBellSouth Comments at 20.(#R PTG  d(#opposes requiring a filing of a joint statement of facts because it believes that parties would never stipulate  S- d(#=to facts.L{ yO-ԍXPTG Comments at 30.(#L CompTel also opposes the proposal, arguing that nothing will be gained because parties will  S`-maintain the same positions taken in their factbased complaints or answers.P`x{ yOx -ԍXCompTel Comments at 11.(#P  S-XX` `  c.Discussion (#`  S-  258.` ` We conclude that parties shall be required to submit a joint statement of stipulated facts  S- d(#and key legal issues.]{ {O@-ԍXSee Appendix A,  1.732(h).(#] We find that the drafting of such a statement, including the discussions between  d(# the parties that are necessary to the drafting of such a document, will promote settlement among the  d(#yparties or, at the very least, narrow the factual and legal issues the Commission will need to resolve. The  d(#jjoint statement will further assist the Commission in discerning exactly what the parties believe to be the  d(#most important issues. We disagree with PTG's argument that the proposal should be rejected because  d(#parties will be unable to stipulate to any facts. We find it highly improbable that parties will be unable  d(#to stipulate to any facts whatsoever. We further conclude, after consideration of U S West's proposal, that  d(#[parties shall be required to file a joint statement of disputed facts because such a document will pinpoint  d(#Lthe exact facts in dispute. Thus, even where parties are unable to agree on a single fact, that can be made  d(#clear to the staff through the joint statement because it will include disputed facts. A clear and  d(#unequivocal identification of the issues on which the parties cannot agree will be especially beneficial to  S- d(#Commission staff when it is resolving the need for requested discovery at an initial status conference.{ {O- v ԍXSee supra "Discovery, Permissible Requests for Discovery" and "Status Conferences, The Initial Status Conference" sections.(#  d(#[We also disagree with CompTel's argument that parties will simply maintain the same positions taken in  d(#their complaints and answers. We find that compelling parties to meet after submission of the complaint,  d(#answer, and any necessary reply will encourage parties to negotiate their positions, resulting in agreement  d(#on some issues and, at a minimum, clarification of the areas in which they disagree. Indeed, we have  d(#occasionally required parties to submit stipulations of fact in past complaints, and have found that the parties often are able to reduce significantly the legal and factual issues in dispute.  S- ~259.` ` Because several commenters expressed concerns about the timing of the joint statement  d(#Mof stipulated facts, disputed facts and key legal issues, we have extended the time for the filing of the  d(#statement. Such joint statement shall be submitted to the Commission by no later than two business days  S(- d(#]prior to the initial status conference.]( { {O&-ԍXSee Appendix A,  1.732(h).(#] We conclude that it would provide less of a benefit to the"(j ,-(-(ZZ"  d(#zcomplaint proceeding if we extended the filing date of the joint statement any further. We have timed  d(#the filing of the joint statement to coincide with our requirements for interrogatory requests and the "meet  S- d(#kand confer" conference that must take place prior to the initial status conference.z{ {O-ԍXSee Appendix A,  1.729; 1.733(b).(#z We find that it is  d(#yimportant to require the parties to discuss the factual and legal issues at this particular stage. Parties will  d(#jhave just reviewed the opposing parties' initial pleadings, documentation, and interrogatories but will not  d(#yet have participated in the more formal initial status conference. Compelling parties to disclose their  d(#positions on all issues in an informal manner, prior to the initial status conference, may be more  d(#productive in terms of settling or narrowing the issues than if the same discussion took place after the  d(#initial status conference. The parties may feel obliged to take firm positions on the issues in dispute after  d(#the initial status conference has occurred. Furthermore, we emphasize that the staff has discretion to grant additional time to submit the joint statement where necessary or appropriate.  S -  3260.` ` We reject BellSouth's suggestion to allow the filing of unilateral statements. The joint  d(#statement is beneficial in large part because it is a single document and does not require the Commission  d(#to compare two documents to determine on which facts, each articulated slightly differently in the separate  d(#documents, the parties agree and disagree. The other significant benefit arises from requiring the parties  d(#to meet and discuss all relevant facts and fully articulate their disagreements. Neither of these benefits  d(#would be obtained by allowing the parties to file unilateral documents, which would most likely be highly  d(#repetitive of the facts laid out in the complaint, answer and any necessary reply. Although Bechtel & Cole  d(#suggests that the joint statement include an outline of factual claims and legal arguments, we conclude that the requirement we adopt here effectively encompasses this suggestion.  S-9X` ` 2. Briefs (#  S@-XX` `  a.The Notice(#`  S-  S-  261.` ` The Notice sought comment on changes to our current briefing process. First, we 9sought  d(#\comment on prohibiting the filing of briefs in cases in which discovery is not conducted and requiring  d(#parties to include proposed findings of fact, conclusions of law and legal analysis with their complaints  S{- d(#.and answers.U{Z{ {Ou-ԍXNotice at 20859.(#U We sought comment on whether parties could reasonably prepare proposed findings of  d(#fact, conclusions of law and legal analysis before reviewing the responses to their pleadings and statements  S+- d(#of stipulated facts.U+{ {O-ԍXNotice at 20859.(#U Second, we sought comment on continuing to allow parties to file briefs, but  S- d(#=permitting the Commission staff to limit the scope of such briefs.U~{ {O!"-ԍXNotice at 20859.(#U This option would add some delay  d(#>to the process but would enable the parties to review both sides of the case before briefing their legal arguments to the Commission.  Sc-  A262.` ` We also sought comment on whether the staff should be permitted to set the timetable for  d(#zcompletion of any briefs to give the staff maximum flexibility and control in order to meet the various";k,-(-(ZZ "  S- d(#[statutory resolution deadlines.U{ {Oh-ԍXNotice at 20859.(#U We also asked parties to identify reasonable timetables for completion  S- d(#.of such briefs.UZ{ {O-ԍXNotice at 20859.(#U The Notice proposed to limit initial briefs to twentyfive pages and reply briefs to ten  S-pages in all cases.{ {O>- v [ԍXNotice at 20860. The current rule permits parties to file initial briefs of up to fifty pages in length and reply briefs of up to thirty pages in length. 47 C.F.R.  1.732.(#  Sb-`XX` `  b.Comments (#`  S- 263.` ` Bell Atlantic and NYNEX support the proposal to prohibit briefs in cases in which  S- d(#[`discovery is not conducted.kF{ yO -ԍXBell Atlantic Comments at 4; NYNEX Comments at 16.(#k Bell Atlantic argues that under the prefiling procedures, parties will have  d(#sufficient notice of the nature and basis of the complaint to argue the legal issues fully in the complaint  S- d(#and answer.U{ yO-ԍXBell Atlantic Comments at 4.(#U NYNEX states that, if the Commission adopts its proposals to require the complainant to  Sr- d(#.include all of the legal and factual support in the initial filing, subsequent briefs would be superfluous.Nrf { yOx-ԍXNYNEX Comments at 16.(#N  d(#Both Bell Atlantic and NYNEX agree that, while briefs will probably be unnecessary in most cases in  d(#which discovery is not conducted, parties should be able to ask, at the initial status conference, for  S - d(#Lpermission to file briefs on certain narrowlytailored issues.n { yO-ԍXBell Atlantic Comments at 4; NYNEX Comments at 1617.(#n Most of the commenters feel that parties  d(#must be allowed to file briefs because parties may lack the requisite information to file findings of fact  d(#and conclusions of law in their complaints and answers. For example, GST, MCI, PTG, Sprint, and U  d(# S West argue that parties cannot be expected to submit findings of fact, conclusions of law, and legal  SZ- d(#analysis prior to reviewing their opponents' pleadings.Z { yO- v ԍXGST Comments at 23; MCI Comments at 24; PTG Comments at 3132; Sprint Comments at 9; U S West Comments at 12.(#Ʋ AT&T argues that briefs are necessary to  S2-complete the record.L2{ yO-ԍXAT&T Reply at 910.(#L  S- n264.` ` AT&T, Bell Atlantic, GST, KMC, MFS, GTE, MCI, and SWBT support the proposal to  S- d(#allow the staff to limit the scope of briefs.n{ yO#- v ԍXAT&T Comments at 18; Bell Atlantic Comments at 4; GST Comments at 23; KMC Comments at 23; MFS Comments at 2223; GTE Comments at 16; MCI Comments at 25; SWBT Comments at 13.(# GTE states that permitting parties to file briefs but limiting  d(#the subjects of those briefs will expedite the complaint process while allowing each party to establish a"l,-(-(ZZ"  S- d(#complete record.L{ yOh-ԍXGTE Comments at 16.(#L MCI argues that the initial status conference will enable the Commission to tailor the  S- d(#/briefing process to fit the needs of each individual case.LX{ yO-ԍXMCI Comments at 25.(#L ACTA, ICG, and PTG, however, oppose  d(#[permitting staff to limit the scope of briefs, arguing that parties must be permitted to argue their cases as  S- d(#they see fit and on the issues they deem relevant.x{ yO-ԍXACTA Comments at 9; ICG Comments at 24; and PTG Comments at 33.(#x CBT supports allowing the staff to limit the scope  d(#>of briefs to disputed issues only, but argues that imposing any further limitations might prejudge the  S8-outcome of the case.L8x{ yOP -ԍXCBT Comments at 16.(#L  S-  o265.` ` The commenters support the proposal to reduce the time in which briefs must be filed.  S- d(#Several parties suggested specific timetables, { yOh- v zԍXFor example, AT&T suggested that initial briefs be filed within eightyfive days after a complaint is filed,  v and reply briefs should be filed within twenty days of initial briefs. In the case of Section 271 complaints,  v initial briefs should be filed within fortyfive days after the complaint is filed and reply briefs should be filed within ten days of initial briefs. AT&T Comments at 1718.(# while others were comfortable with allowing the  S-Commission to set the timetable at the initial status conference. { {O(-ԍXSee e.g. BellSouth Comments at 20; CompTel Comments at 11; MCI Comments at 25.(#Ơ  Sp-  SH -  266.` ` Most commenters support the proposal to reduce brief page limits to twentyfive pages  S - d(#Lfor initial briefs and ten pages for reply briefs. { {OB-ԍXSee e.g., AT&T Comments at 18; GTE Comments at 16; TRA Comments at 25.(#Ɨ Several commenters, such as AT&T and PTG, request  d(#that the staff be able to set flexible page limits or that the parties be permitted to file for leave to file  S -longer briefs.a { yO-ԍXAT&T Comments at 18; PTG Comments at 34.(#a ACTA, ICG, and the cable entities argue that a twentyfive page limit is insufficient. { yO-ԍXACTA Comments at 9; ICG Comments at 24; the Cable Entities Reply at 10.(#ƀ  S -  S -XX` `  c.Discussion (#`  S0- A 267.` ` The format and content rules adopted in this proceeding require that complaints, answers,  d(#Kand any necessary replies contain complete legal analysis, full documentary support, and proposed findings  S- d(#of fact, conclusions of law at the time of filing.4{ {O#- v \ԍXSee Appendix A,  1.721(a)(6); 1.724(c); 1.726(c). See also infra, "Format and Content Requirements; Support and Documentation of Pleadings" Section.(# It has been our experience that parties have used the  d(#?briefing opportunity to file documents that merely restate the arguments already contained in the  d(#complaint, answer, and reply in cases in which discovery is not conducted. In those cases where discovery  d(#is conducted and new material facts are introduced into the case as a result of such discovery, briefs are"hm,-(-(ZZ"  d(#necessary to provide the parties the opportunity to revise or further support their existing analysis in light  d(#kof the new information disclosed. Eliminating briefs where discovery is not conducted, however, will  d(#avoid wasting the Commission's resources reviewing documents that are of little utility, as well as provide  d(#parties with incentive to submit complete and fully documented complaints, answers, and replies initially.  d(#lThus, we conclude that parties shall be generally prohibited from filing briefs in cases in which no  S8- d(#discovery is conducted.]8{ {O-ԍXSee Appendix A,  1.732(c).(#] The commenters who oppose this proposal are concerned that parties might  d(#lack the information necessary to file findings of fact and conclusions of law in their complaints and  d(#answers, or that briefs are needed to complete the record. As noted by Bell Atlantic and NYNEX,  d(#however, under the new prefiling activities and format and content requirements, complainants and  d(#defendants alike should have sufficient information with which to prepare and file proposed findings of  d(#.fact and conclusions of law in their complaints, answers, and necessary replies. We emphasize that this  d(#rule is not a complete prohibition on the filing briefs in cases in which discovery is not conducted. The  S - d(#Commission may request briefs where briefing would be helpful or is necessary.] Z{ {O-ԍXSee Appendix A,  1.732(a).(#] Further, where a party  d(#believes that briefing is essential to fully present its case, it may request such briefing and explain to the  S - d(#yCommission why briefing is necessary in that particular case.] { {O\-ԍXSee Appendix A,  1.732(a).(#] We note that parties may still file briefs  S -as a matter of right in cases in which discovery is conducted.] ~{ {O-ԍXSee Appendix A,  1.732(d).(#]  SX-  P 268.` ` In those cases in which briefs are permitted, each party is required to attach all documents  S0- d(#upon which it intends to rely to its briefs.]0{ {O-ԍXSee Appendix A,  1.732(b).(#] Parties are permitted to attach to their briefs documents that  d(#were previously identified, and affidavits of persons previously identified, in their information  d(#ydesignations, along with a full explanation in the brief of the material's relevance to the issues and matters  S- d(#in dispute.]{ {O-ԍXSee Appendix A,  1.732(b).(#] Such materials need not have been attached to the complaint, answer, or necessary reply.]4 { {O-ԍXSee Appendix A,  1.732(b).(#]  y#/W   Sh-  3 269.` ` In those cases in which briefs are permitted, such briefs are required to include all legal  d(#[and factual claims and defenses previously set forth in the complaint, answer or any other prior pleading  S- d(#ysubmitted in the proceeding that the parties wish the Commission to consider in rendering its decision.] { {O~"-ԍXSee Appendix A,  1.732(b).(#]  S- d(#Claims and defenses previously made but not reflected in the briefs shall be deemed abandoned.]X { {O$-ԍXSee Appendix A,  1.732(b).(#] Where,  d(#however, the staff limits the scope of the briefs in a manner that does not permit parties to include claims  d(#previously raised, the failure to include claims previously raised will not be deemed to be an abandonment"n,-(-(ZZ"  S- d(#=of such claims.Y{ {Oh-ԍXSee infra this Discussion.(#Y Although the Notice did not specifically propose to require briefs to include all claims  d(#previously set forth in the proceeding, we find that this requirement will maximize the utility of briefs.  d(#LAuthorized briefs are a means to facilitate the staff's ability to identify readily all legal and factual claims  d(#and defenses made by the parties, along with full citations to the law and the evidentiary record. This  d(#requirement should minimize the need for the staff to sift through multiple pleadings submitted by the  d(#parties in an effort to identify and address each of their respective claims. In addition, this requirement  d(#]will prevent staff from having to rule on claims of questionable merit that were identified in initial pleadings, but that the parties do not intend to support or rely on in their briefs.  S- 2 270.` ` The Commission may limit the scope of any authorized briefs where appropriate, and set  Sr- d(#timetables for the filing of such briefs.\rZ{ {Ol -ԍXSee Appendix A,  1.732(b)(#\ Most of the commenters support these requirements, because  d(#they understand that the Commission needs such limitations and flexibility to accomplish its goal of  d(#{meeting the statutory deadlines provided for in the Act and expediting the processing of all formal  d(#complaints. ACTA, CBT, ICG, and PTG argue that the staff should not limit the scope of briefs because  d(#parties should be permitted to brief the issues that the parties themselves deem relevant. These  d(#=commenters ignore, however, that parties are given the opportunity to file proposed findings of fact and  d(#conclusions of law and a complete legal analysis on the issues they deem relevant with their complaint,  d(#kanswer and any necessary reply. To the extent that discovery discloses new material facts, briefs are  d(#allowed as a matter of right. The parties also have several opportunities to explain to the staff why  d(#particular issues should be briefed. The staff's decision regarding the scope and timing of briefs will be  d(#based on the content of the parties' initial pleadings and their joint statement, as well as on information  d(#garnered from discussions with the parties at the initial status conference and any other status conferences  d(#held. Through these vehicles, parties have an opportunity to identify issues they feel should be briefed  d(#and to explain any special circumstances that may warrant a shorter or longer filing time for briefs.  d(#Limiting the scope of briefs, when appropriate, will help avoid unnecessary or redundant pleadings that  d(#do not facilitate the decisionmaking process. The Commission's discretion to set timetables on a casebycase basis for the completion of briefs will help to tailor schedules to the needs of individual complaints.  S-  271.` ` The page limits for allowed briefs shall be twentyfive pages for initial briefs and ten  Sz- d(#?pages for reply briefs.]z{ {O-ԍXSee Appendix A,  1.732(e).(#] The statutory deadlines imposed by the Act place great burdens on the  d(#Commission to evaluate briefs and prepare recommended decisions within short timeframes. We find that  d(#reducing the page limits for initial briefs and reply briefs to twentyfive and ten `pages, respectively, should  d(#yield more focused and concise legal and factual arguments, as well as discourage the filing of briefs  d(#containing unnecessary and redundant information. We adopt the suggestion of several commenters to  d(#jpermit parties to request leave to file longer briefs. This `provision should alleviate the concern of certain  d(#commenters that the page limits may be insufficient in some cases. Parties shall be granted waivers of these page limits for good cause shown. ":o~,-(-(ZZ "Ԍ S-9X` ` 3. Commenters' Additional Suggestions (#  S-XX` `  a.The Notice(#`  S-  Sa- 272.` ` The Notice asked commenters to identify alternative procedures that would 9facilitate the  S;-preparation and submission of clear and concise briefs within the time constraints imposed by the Act.O;{ {O-ԍXNotice at 20860.(#O  S-XX` `  b.Comments (#`  S-  273.` ` AT&T, ICG, MCI, SWBT, and U S West suggest that the briefing process should mirror  d(#/that used in federal district court, in which the complainant files a single initial brief, followed by the  SK - d(#ydefendant's opposition brief, followed by the complainant's reply brief.K Z{ yOE - v ԍXAT&T Reply at 10; ICG Comments at 25; MCI Comments at 26; SWBT Reply at 6; U S West Comments at 13.(#ƨ They argue that simultaneous  d(#briefing forces a defendant to reply to a position not yet articulated, and does not give a complainant an  d(#opportunity to reply to a defendant's reply brief, while sequential briefing permits parties to meet each  S -other's arguments directly.W { yO%-ԍXU S West Comments at 13.(#W  S -XX` `  c.Discussion (#`  S3-  274.` ` We decline to adopt the suggestions of AT&T, ICG, MCI, SWBT, and U S West to  d(#jrequire a sequential briefing process. Sequential briefing consists of three stages: the complainant's initial  d(#brief, the defendant's opposition brief, and the complainant's reply brief. Each party must be provided  d(#with sufficient time to respond to the brief filed in the preceding stage. We conclude that simultaneous  d(#kbriefing, which can be accomplished in two stages (initial brief and reply brief) is more appropriate in  d(#klight of the time constraints imposed by the Act. While sequential briefing is appropriate in a notice d(#pleading context, in which the parties may lack information regarding the positions of opposing parties,  d(#the benefits to be gained by sequential briefing under the Commission's factpleading rules are minimal.  d(#Under the requirements imposed in this proceeding, parties must submit factpleadings and a joint  d(#!statement of disputed and undisputed facts and key legal issues, as well as attend an early status  d(# conference, where the scope of the briefing will be discussed and may be limited. We find that these  d(#requirements will ensure that parties are fully aware of their opponents' positions on all key factual and  d(#legal issues by the briefing stage. Simultaneous briefing should not result in parties being prejudiced in any way.  S- y#/W  P.` ` Sanctions  S- A275.` ` The Notice proposed rules that will place greater burdens on complainants and defendants  d(#jto be more diligent when presenting or defending against allegations of misconduct in violation of the Act  d(#\or the Commission's rules. Such diligence must be enforced in order to meet the complaint resolution deadlines contained in the Act and attain the goal of generally improving the formal complaint process.  S -" pB,-(-(ZZt""Ԍ S- X` ` 1. The Notice (#  S- }276.` ` In the Notice, we outlined the need for sanctions which would provide sufficient incentives  S- d(#to ensure compliance with the new rules.J{ {O-ԍNotice at 2086061.J We asked interested parties to provide us with their proposals  Sc- d(#for appropriate sanctions.JcZ{ {O]-ԍNotice at 2086061.J We provided several examples of specific sanctions for certain anticipated  d(#rules violations, including: (1) summary dismissal of a complaint for a complainant's failure to satisfy  d(#format and content requirements; (2) summary ruling or other judgment in favor of the complainant for  d(#a defendant's failure to respond fully and with specificity to a complainant's allegations; and (3) the  d(#imposition of monetary fines under the Act's forfeiture provisions for failure to file pleadings in  S- d(#accordance with our rules.J{ {O' -ԍNotice at 2086061.J We asked parties to comment on these and other alternatives that might help  Ss-to ensure full compliance with the expedited complaint procedures proposed in the Notice.Js~{ {O-ԍNotice at 2086061.J  SM -  S% -X` ` 2. Comments (#  S - 277.` ` Most of the parties who commented generally support the proposed sanctions. Most state  d(#that failure to satisfy the form and content requirements should result in summary dismissal of the  S - d(#complaint without prejudice. { {O5-ԍXSee e.g., Bechtel and Cole Comments at 2; CBT Comments at 17; MFS Comments at 24.(#Ɯ GST, GTE, KMC, MFS and SWBT argue that, in most cases, the  d(#imposition of monetary forfeitures would be preferable to summary grant or dismissal, which they contend  d(#should be used only for: (1) failure by complainants to set forth allegations with specificity; (2) failure  d(#by defendants to respond to the complaint; or (3) failure by either party to certify that they engaged in  S- d(#=good faith settlement attempts.{ yO'- v !ԍXGST Comments at 24; GTE Comments at 16; KMC Comments at 24; MFS Comments at 24; SWBT Comments at 14.(#Ʃ CBT, GST, KMC, and MFS suggest issuing a notice of deficiency or  S- d(#show cause order prior to imposing a sanction. { yOW-ԍXCBT Comments at 17; GST Comments at 13; KMC Comments at 13; MFS Comments at 13.(#ƈ MCI suggests that a defendant should be penalized for  d(#its failure to cooperate in the prefiling stages of a complaint proceeding by permitting the complainant  d(#to file a complaint without sufficient facts or documentation. MCI also suggests that a complainant should  d(#be penalized for its failure to cooperate in the prefiling stages by permitting general denials where the  S- d(#defendant lacks necessary information.M { yOG#-ԍXMCI Comments at 78.(#M U S West argues that, because parties seldom violate the  d(#jCommission's rules, the Commission should make quick and decisive rulings in discovery conflicts rather  S- d(#{than emphasize sanctions.Q{ yO&-ԍXU S West Comments at 17.(#Q Communications Venture Services, Inc. ("CVS") and SWBT suggest"q,-(-(ZZ3"  S- d(#yimposing sanctions on attorneys as well as clients.`{ yOh-ԍXCVS Comments at 3; SWBT Comments at 14.(#` ACTA states that the Commission should draw an  d(#adverse inference as to material facts to sanction discovery abuses or failure to comply with discovery  S-rulings.LX{ yO-ԍXACTA Comments at 6.(#L  S`-X` ` 3. Discussion (#  S-  P278.` ` We conclude that no rule modifications are necessary with regard to sanctions at this time.  d(#We have at our disposal a wide range of sanctions to address violations or abuses of our formal complaint  d(#rules, including summary grant or dismissal of a complaint (in whole or in part), the drawing of adverse  S- d(#inferences as to material facts, monetary forfeitures, admonishment rulings, and show cause proceedings.{ {OH -ԍXSee e.g., Sections 4(i), 503(b), and 312(b) of the Act, 47 U.S.C.  154(i), 503(b), 312(b).(#Ƨ  Sp- d(#Because sanctionable behavior may entail a wide range of conduct by complainants and defendant carriers,  d(#the Commission has considerable discretion to tailor sanctions to the individual circumstances of a  d(#particular violation. Sanctions for a failure to meet pleading requirements should be directed at the nature  d(#of the failure. For example, a complainant that fails to properly support a statement of material fact may  d(#have such statement treated as an unproven assertion. Sanctions for discovery abuses should provide  d(#sufficient incentives for parties to view full and early disclosure as preferable to any potential benefits from dilatory tactics.  S0- XQ.` ` Other MattershhC(#  S-  S-  279.` ` The Notice sought comment on the meaning of the term "act on" in Section 271(d)(6)(B)  d(#of the Act pertaining to complaints concerning failures by BOCs to meet conditions required for approval  S- d(#yto provide inregion interLATA services.O{ {O-ԍXNotice at 20861.(#O In addition, the Commission stated in the Sections 260, 274,  Sl- d(#275 First Report and Order and the Sections 260, 274, 275 Second Report and Order that certain issues  d(#concerning possible evidentiary standards for complaints alleging violations of Sections 260, 274, and 275  S-would be addressed in the Formal Complaints rulemaking proceeding.4{ {O- v ԍXSee Sections 260, 274, 275 First Report and Order at para. 3; Sections 260, 274, 275 Second Report and  {O-Order at para. 2.(#  S-X` ` 1. Section 271 (#  S~-XX` `  a.The Notice (#  S/- 280.` ` Section 271(d)(6)(B) of the Act provides that the Commission shall "act on" complaints  d(#alleging certain violations of the section within ninety days of the date filed, unless otherwise agreed to  S- d(#by the parties.U{ yO&-ԍX47 U.S.C.  271(d)(6)(B).(#U This is in contrast to other complaint provisions added by the 1996 Act which mandate"r ,-(-(ZZL"  S- d(#M"final" action by the Commission within prescribed time periods. { yOh- v ԍXFor example, Section 260 requires that a "final determination" regarding complaints involving material  v financial harm to providers of telemessaging services be made within 120 days of filing and Section 275  v requires that a "final determination" regarding complaints involving material financial harm to providers of alarm monitoring services be made within 120 days of filing. (# We tentatively concluded in the  S- d(#^Notice that "act on" as used in Section 271(d)(6)(B) may be satisfied, where appropriate, by a  d(#Ldetermination of the Common Carrier Bureau whether a BOC has ceased to meet the conditions required  S- d(#/for approval to provide in-region interLATA services,{ {O-ԍXSee 47 U.S.C.  271 (d)(6)(B); BOC InRegion NPRM, para. 97.(#Ɛ and need not require final action by the full  Sb- d(#Commission.ObB{ {OD -ԍXNotice at 20861.(#O We sought comment on this tentative conclusion and on the appropriate procedure or  d(#mechanism for early notice to the Commission of the parties' agreement to extend or waive the ninetyday  S-resolution deadline.R{ {O-ԍXNotice at 2086162.(#R  S-X X` ` X b.XComments (#  Sr- 281.` ` Commenters disagree on the meaning of "act on" in Section 271(d)(6)(B). BellSouth,  d(#[CompTel, GST, KMC, MFS, and MCI state that a Common Carrier Bureau decision constitutes "acting  d(#on" within the meaning of Section 271(d)(6)(B) because the abbreviated deadline for resolution is a  d(#.statutory mandate for prompt relief, which would not be fulfilled by waiting for a decision by the entire  S - d(#Commission. f { yO- v .ԍXBellSouth Comments at 21; CompTel Comments at 12; GST Comments at 24; KMC Comments at 24; MFS Comments at 24; MCI Reply at 3.(# In addition, MCI argues that a Common Carrier Bureau decision is sufficient because the  d(#\right to decide cases under Section 271(d)(6)(B) is not specifically reserved to the Commission under  S - d(#=Section 0.291 of the Commission's rules.H { yO-ԍXMCI Reply at 3.(#H CVS, NYNEX, ICG, PTG, and SWBT, however, argue that  d(#Section 271(d)(6)(B) requires a Commission decision because it would be contrary to Congressional intent  S2- d(#to deny parties the immediate right of judicial review.2N { yO - v MԍXCVS Comments at 3; NYNEX Comments at 1718; ICG Comments at 26; PTG Comments at 35; SWBT Comments at 1415.(#ư PTG argues that the Commission must decide  d(#[Section 271(d)(6)(B) cases because, under Section 0.291, the Commission has not delegated its authority  d(#to designate for hearing any formal complaints which present "novel questions of fact, law or policy[,]"  d(#nor to "impose, reduce, or cancel forfeitures pursuant to Section 203 or Section 503(b) . . . in amounts  S-of more than $80,000."L{ yO#-ԍXPTG Comments at 35.(#L  SB- 282.` ` Regarding the notification of waiver of the Section 271(d)(6)(B) ninetyday deadline,  d(#BellSouth suggests that the complainant be required to indicate its willingness to waive the ninetyday  d(#{resolution deadline in the formal complaint intake form proposed by the Commission to aid in the"s6,-(-(ZZR"  S- d(#preparation and filing of formal complaints.R{ yOh-ԍXBellSouth Comments at 21.(#R GST, KMC, and MFS suggest that such agreement take  d(#>place during "meet and confer" conferences, which would occur prior to the initial status conferences  S-pursuant to other proposals in the Notice.zX{ yO-ԍXGST Comments at 25; KMC Comments at 25; MFS Comments at 24.(#z  Sb-XX` ` X c.XDiscussion (#  S- Q283.` ` Notwithstanding our tentative conclusion in the Notice that a decision by the Common  d(#.Carrier Bureau on the merits of the complaint satisfies the "act on" requirement in Section 271(d)(6)(B),  d(#.we conclude that we need not address this issue in this Report and Order. We recognize the importance  d(#\that Congress assigned to the resolution of complaints alleging violations of the competitive checklist  d(#Lrequirements as reflected in the ninetyday "act on" requirement. We fully intend to act promptly on all  d(#lmatters pertaining to those requirements to assure that full effect is given to the competitive goals underlying Section 271 of the Act.  S - o284.` ` To facilitate our handling of Section 271(d)(6)(B) complaints, we adopt a rule requiring  d(#parties to indicate whether they are willing to waive the ninetyday deadline in their initial filings to the  d(#Commission or, at the very latest, by the date of the initial status conference. Parties will have the  d(#opportunity to reach an agreement about waiver of the Section 271(d)(6)(B) ninetyday deadline during  d(#the prefiling activities. A complainant should indicate whether or not it is willing to waive the ninetyday  d(#kdeadline in the formal complaint intake form accompanying the complaint. The defendant carrier will  d(#have opportunity to respond to the complainant's request for waiver either in its answer or at some earlier  d(#date. Parties will have an additional opportunity to discuss the waiver of the ninetyday deadline in their  S- d(#"meet and confer" held prior to the initial status conference.^{ {O-ԍSee supra "Status Conferences" section.^ Because meeting a resolution deadline of  d(# ninety days will require both strong commitment and meticulous preparation at the very start of the  d(#Kcomplaint process, from the parties and from the Commission, a request by the parties to waive the ninety d(#\day deadline will be not considered after the initial status conference. Permitting parties to waive the  d(#ninetyday deadline at any point in the complaint process could result in the wasteful expenditure of time  d(#yand resources by the staff and the parties. In addition, we note that even if the parties agree to waive the  d(#ninetyday deadline in a Section 271(d)(6)B) case, it is our intent to resolve such cases as expeditiously  d(#as possible. Thus, parties should not relax their diligence in meeting our format and content requirements to the fullest extent possible as a consequence of having agreed to waive the ninetyday deadline.  S-bX` ` 2. Sections 260, 274 and 275 of the Act (#  S-   285.` ` In the Sections 260, 274, 275 First Report and Order and the Sections 260, 274, 275  S- d(#Second Report and Order, we deferred to the Formal Complaints rulemaking the bissue of what specific  Sh- d(#acts or omissions might be sufficient to state a prima facie claim for relief under Sections 260, 274, and  SB- d(# 275.Bz{ {O\&- v ԍXSee Sections 260, 274, 275 First Report and Order at para. 3; Sections 260, 274, 275 Second Report and  {O&'-Order at para. 2.(# In that same proceeding, we noted that the complainant has the burden of establishing that a"Bt,-(-(ZZ "  d(#[carrier has violated the Act or a Commission rule or order and that burden generally does not shift at any  S- d(#time to the defendant carrier.p{ {O@-ԍXSee Section 260, 274, 275 NPRM at para. 79.(#p We also deferred to the Formal Complaints rulemaking the issue of  d(#lwhether shifting the burden of proof from the complainant to the defendant in complaints alleging  S-violations of Sections 260, 274, and 275 would advance the procompetitive goals of the Act.Z{ {O- v ԍXSee Sections 260, 274, 275 First Report and Order at para. 3; Sections 260, 274, 275 Second Report and  {OL-Order at para. 2.(#  S8-:` `  a.` Prima facie Claim (#  S-XX` ` X X i.XhhCThe Sections 260, 274, 275 NPRM (#h  S-  286.` ` In the Sections 260, 274, 275 NPRM, we asked parties to comment on what prima :facie  d(#showing should be required of a complainant who alleges that an incumbent LEC has violated Sections  SL - d(#260 or 275, or that a BOC has violated Section 274.uL { {O-ԍXSee Section 260, 274, 275 NPRM at paras. 79, 82.(#u Commenters were asked to describe what specific  S$ -acts or omissions would constitute a prima facie claim for relief under those sections of the Act.u$ H{ {O -ԍXSee Section 260, 274, 275 NPRM at paras. 79, 82.(#u  S -XX` ` X X ii.XhhCComments (#h  S -  287.` ` Commenters did not address in this rulemaking the issue of what acts or omissions might  S^- d(#jconstitute a prima facie claim in complaints alleging violation of Sections 260, 274, and 275. In response  S8- d(#to the Sections 260, 274, 275 NPRM, however, many parties commented on this issue. Several  S- d(#lcommenters contend that the same standard for a prima facie case should apply to all complaints,  d(#]including complaints alleging violations of Sections 260, 274, or 275; that is, a complainant would  S- d(#establish a prima facie case by alleging facts that, if true, would constitute a violation of the Act.{ {O>- v ԍXSee e.g., AICC Comments to Section 260, 274, 275 NPRM at 2829; SWBT Comments to Section 260, 274,  {O-275 NPRM at 23; USTA Comments to Section 260, 274, 275 NPRM at 7.(#  S- d(#NSeveral parties, however, suggest specific standards for stating a prima facie claim for relief under  d(#zSections 260, 274, and 275. ATSI states that a complainant alleging a violation of Section 260 should  SP- d(#be allowed to establish a prima facie case by any showing of denied or delayed access, or any showing  d(#of cost or quality differentials between the incumbent's own telemessaging operations and those offered  S- d(#by the complainant.p6 { {O!-ԍXATSI Comments to Section 260, 274, 275 NPRM at 3.(#p ATSI further suggests that the Commission establish certain safeguards to prevent  d(#anti-competitive conduct, and declare that facts demonstrating a violation of these safeguards should be  S- d(#sufficient to state a prima facie case of unlawfulness.t { {O%-ԍXATSI Comments to Section 260, 274, 275 NPRM at 1213.(#t According to ATSI, because Section 260 was not"uZ ,-(-(ZZ"  d(#Nintended to "mimic a legal proceeding" complainants should not have to undertake costly or time S-consuming preparatory work prior to filing a complaint.t{ {O@-ԍXATSI Comments to Section 260, 274, 275 NPRM at 8, 10.(#t  S-  288.` ` A number of commenters oppose ATSI's proposals. U S West argues that a Section 260  d(#complaint is a legal proceeding in which both the complainant's and defendant's rights should be  S8- d(#respected.u 8Z{ {O2-ԍXU S West Comments to Section 260, 274, 275 NPRM at 18.(#u BellSouth maintains that a prima facie case should include specific allegations of fact  S- d(#\showing that a defendant carrier has engaged in prohibited discrimination or crosssubsidization.{ { {O -ԍXBellSouth Reply Comments to Section 260, 274, 275 NPRM at 9.(#{ A  d(#/number of other commenters argue that ATSI's proposals, if adopted, would open the floodgates for  S-unsubstantiated complaints against the incumbent LECs and their affiliates. ~{ {O - v ԍXUSTA Reply to Section 260, 274, 275 NPRM at 4; Yellow Pages Publishers Association Comments to  {O-Section 260, 274, 275 NPRM at 11.(#  Sr-   289.` ` NYNEX states that, in order to establish a prima facie case pursuant to Section 274, the  d(#complaint would have to contain a description of the complainant and its interest; be sworn and notarized  d(#yand state with particularity the facts on which the complaint is based, distinguishing between facts based  d(#on personal knowledge and facts based on information and belief; provide a verifiable source of statements  d(#based on information and belief; be accompanied by supporting documentation; and identify materials the  d(#complainant has been unable to obtain after due inquiry which it asserts are in the possession of the BOC  S -or its separate affiliate.r  { {O-ԍXNYNEX Comments to Section 260, 274, 275 NPRM at 30.(#r  S4- ` ` X Xiii.hhCDiscussion (#  S-  _!290.` ` We decline to adopt a rule prescribing specific acts or omissions that would be prima facie  d(#Lunlawful under Sections 260, 274, and 275. Instead, we will review Section 260, 274, or 275 complaints  d(#.on a casebycase basis to resolve compliance issues. We believe that, beyond the specific requirements  d(#.of the Act and the Commission's implementing rules and orders, it would be impracticable to attempt to  d(#.delineate specific acts or omissions that would constitute violations of Sections 260, 274 and 275. Acts  d(#[or omissions that might raise the specter of violations under Sections 260, 274 and 275 are likely to vary  d(#widely. Moreover, it is possible that a particular act or omission deemed unlawful in one context may  d(#be perfectly reasonable in another. Therefore we will continue our existing practice of requiring that, in  S- d(#the context of a Section 208 complaint proceeding, a prima facie showing must include allegations of fact, which if true, would establish that a BOC has violated the Act or any implementing rule or order. "Xvl ,-(-(ZZ"Ԍ S-XX` ` X b.XShifting the Burden of Proof to Defendant Carriers (#  S-XX` ` X X in Complaints Alleging Violations of Sections(#  S-XX` ` X X 260, 274 and 275 of the Act (#  S`-XX` ` X X i.XhhCThe Section 260, 274, 275 NPRM (#h  S-  "291.` ` In the Sections 260, 274, 275 NPRM, we noted that in a formal complaint proceeding the  d(#ycomplainant generally has the burden of establishing, by a preponderance of the evidence, that a common  S- d(#carrier has violated the Act or a Commission rule or order._ \{ {O+ - v /ԍXSee generally Amendment of Rules Governing Procedures to be Followed When Formal Complaints Are  {O - v Filed Against Common Carriers, CC Docket No. 9226, Report and Order, 8 FCC Rcd 2614 (1993); 47 C.F.R.  1.7211.735.(#_ Ordinarily, this burden of proof does not,  S- d(#at any time in the proceeding, shift to the defendant carrier.{ yO' - v /ԍXIn the case of complaints alleging violations of Section 202(a) of the Act, however, once a complainant  v >alleging a violation establishes that the services are like and that discrimination exists between them, the  v burden shifts to the defendant carrier to show that the discrimination is justified and, therefore, not  {O- v unreasonable within the meaning of section 202(a). See, e.g., MCI Telecommunications Corp v. FCC, 917  v PF.2d 30, 39 (D.C. Cir. 1990). In any complaint proceeding initiated under Section 208 of the  v yCommunications Act, the Commission, and the staff pursuant to delegated authority, may exercise discretion  v Mto require a defendant carrier to come forward with relevant information or evidence determined to be in  {O- v /the sole possession or control of the carrier. See, e.g., General Services Administration v. AT&T, 2 FCC  v Rcd 3574, 3576 n.31 (1987). In such cases, however, the burden of persuasion remains with the complainant.(# We sought comment in the Sections 260,  Su- d(#274, 275 NPRM on whether, for purposes of complaints arising under Sections 260, 274, 275, shifting the  d(#ultimate burden of proof from the complainant to the defendant would advance the procompetitive goals  S' -of the Act.' { {OO- v yԍXSee Section 260, 274, 275 NPRM at paras. 79, 82. We note that this same issue arose in the BOC InRegion  {O- v NPRM. BOC InRegion NPRM at para. 102. The BOC InRegion Order concluded that the burden of  {O- v .production with respect to an issue should shift to the BOC after the complainant has demonstrated a prima  {O- v facie case that a defendant BOC has ceased to meet the conditions for its approval to provide interLATA  {Ow-services under Section 271(d)(3). See BOC InRegion Order at para. 345.(#  S -XX` ` X X ii.XhhCComments (#h  S -  #292.` ` Commenters did not address in this rulemaking the issue of shifting the burden of proof  d(#from the complainant to the defendant BOC or incumbent LEC in complaints alleging violations of  d(#Sections 260, 274, and 275. A number of parties, however, commented on this issue in response to the  S- d(#Sections 260, 274, 275 NPRM. The BOCs oppose shifting the burden of proof to the defendant carrier  S- d(#=after a complainant establishes a prima facie case, arguing that such a practice would force defendants to  S- d(#}prove a negative; e.g., lack of undue delay, unavailability of requested services, or technical  S- d(#ximpossibility.#B{ {O%- v =ԍXSee e.g., Bell Atlantic Reply to Section 260, 274, 275 NPRM at 1314; NYNEX Reply to Section 260, 274,  {OI&-275 NPRM at 22; US West Reply to Section 260, 274, 275 NPRM at 1819.(## The BOCs assert that the Administrative Procedures Act ("APA") requires that the burden"w,-(-(ZZ"  S- d(#jof persuasion in complaint cases remain on the complainant throughoutw{ {Oh-ԍXBellSouth Comments to Section 260, 274, 275 NPRM at 27; (#w and that shifting the burden of  S- d(#proof in the manner proposed would encourage the filing of frivolous complaints.mZ{ {O-ԍXPTG Comments Section 260, 274, 275 NPRM at 27.(#m SWBT and U S West  d(# object to shifting the burden of proof in Section 274 cases, claiming that, because Section 274 has no  d(#kstatutory resolution deadline and complainants have the option of filing their claims in federal district  d(#[court, burden shifting would promote "forum shopping" by parties wishing to litigate their claims before  S8- d(#the Commission under more relaxed standards.8{ {O - v \ԍXSWBT Comments to Section 260, 274, 275 NPRM at 24; U S West Comments to Section 260, 274, 275  {O -NPRM at 2223. (# In addition, U S West argues that shifting the burden  S- d(#[in Section 274 cases would be particularly inappropriate because Section 274 involves First Amendment  S- d(#>(private and commercial speech) issues.yH{ {O -ԍXU S West Comments to Section 260, 274, 275 NPRM at 2223 .(#y BellSouth and PTG state that a defendant would bear the  d(#burden of producing evidence only if it asserted an affirmative defense, such as the reasonableness of its  S- d(#actions.v{ {O-ԍXBellSouth Comments to Section 260, 274, 275 NPRM at 28.(#v Ameritech and PTG concede that, at most, a defendant might be expected to bear the burden  Sp- d(#jof production, but not of persuasion.pl { {O|- v ԍXAmeritech Comments to Section 260, 274, 275 NPRM at 3334; PTG Comments to Section 260, 274, 275  {OF-NPRM at 26.(# NYNEX proposes that, rather than shifting the burden of proof  SH - d(#to a defendant after a complainant has established a prima facie case, a defendant should be required to  d(#zprovide: (1) a sworn and notarized response containing an admission or denial of all allegations in the  d(#complaint; (2) a summary of the facts on which the response is based, distinguishing between facts based  d(#zon personal knowledge and facts based on information and belief; (3) a verifiable source of statements  d(#zbased on information and belief; (4) its defenses; and (5) supporting documentation if available or if it  S -can be reasonably acquired within the time allowed for response.r { {O-ԍXNYNEX Comments to Section 260, 274, 275 NPRM at 31.(#r  S2- $293.` ` ATSI, AT&T, AICC, MCI, and VoiceTel all support shifting the burden of proof to  S - d(#kdefendants once the complainant has established a prima facie case. These commenters maintain that  d(#burden shifting is appropriate in Section 260, 274 and 275 cases because of short resolution deadlines and  d(#jthe fact that the relevant information will generally be in the possession or control of the defendant BOC  S- d(#=or incumbent LEC.^Z { {O!- v [ԍXATSI Comments to Section 260, 274, 275 NPRM at 10; AT&T Comments to Section 260, 274, 275 NPRM  {OX"- v at 24; AICC Comments to Section 260, 274, 275 NPRM at 911; MCI Comments to Section 260, 274, 275  {O"#-NPRM at 89; VoiceTel Comments Section 260, 274, 275 NPRM at 14.(#ƙ AICC states that the BOCs' argument that the APA prohibits shifting the burden  d(#of proof to a defendant is inapplicable to Section 275, because the applicable section of the APA, Section  d(#j556, only pertains to certain hearings and rulemakings required by Sections 553 and 554, respectively, of  S- d(#the APA.n{ {O<'-ԍXAICC Reply to Section 260, 274, 275 NPRM at 13.(#n AICC adds that the Commission should follow its tentative conclusion in the BOC InRegion"x,-(-(ZZq"  S- d(#NPRM and not adopt a presumption of reasonableness favoring an incumbent LEC or its alarm monitoring  S-affiliate when reviewing complaints alleging violations of Section 275.w{ {OB-ԍXAICC Comments to Section 260, 274, 275 NPRM at 30.(#w   S-XX` ` X X ii.XhhCDiscussion (#h  S:-  %294.` `  We decline to adopt a rule that would shift the burden of proof to defendant BOCs or  d(#incumbent LECs in expedited complaint proceedings pursuant to Sections 260, 274 and 275 of the Act.  d(#=We do not agree with the arguments of many commenters that shifting the burden of proof in such cases  S- d(#is necessary to advance the procompetitive goals of the 1996 Act. Nor do we agree that a rule is required  d(#to formally shift the burden of production to a defendant carrier after a complainant has demonstrated a  Sr- d(#!prima facie case of a violation of Section 260, 274, or 275. The rules adopted in this proceeding,  d(#particularly those pertaining to prefiling activities and the form and content of pleadings, are designed  d(#jspecifically to require both complainants and defendants to exercise diligence in presenting and defending  d(#kagainst alleged violations of Sections 260, 274 and 275, as well as other sections of the Act. The new  d(#zrules require full identification of relevant documents and information in the possession, or within the  d(#=control, of both the complainant and defendant carrier, along with prompt production or exchange of the  d(#information the parties intend to rely on in presenting and defending against claims of unlawfulness under  S\-provisions of the Act and the Commission's rules and orders.\Z{ {OV-ԍXx#X\  P6G;P#See supra paras. 7276, 78; see also Appendix A,  1.721, 1.724, 1.726.(#ƺ  S -  B&295.` ` In addition, the staff retains in all cases the discretion to effectively shift the burden of  S- d(#production in particular cases by directing defendant carriers to produce relevant information deemed to  S- d(#ybe within their exclusive possession or control.{ {OH-ԍX#X\  P6G;P#See supra paras. 106107; see also Appendix A,  1.729.(#Ʀ We note that this discretion is conferred under Section  d(#208 of the Act which authorizes the Commission to investigate complaints "by such means and in such  Sl- d(#manner as it shall deem proper."vl~{ yO-ԍX#X\  P6G;P#47 U.S.C.  208(a).(#v Moreover, even in the absence of such action by the staff, it will be  SD- d(#[incumbent upon a defendant carrier to respond fully to any prima facie showing made by a complainant,  d(#with full legal and evidentiary support. A defendant that fails to provide such a response runs the risk of an adverse ruling or an adverse inference on a material fact.  S-  '296.` ` We note that our decision not to adopt a rule to formally shift the burden of production  S~- d(#to a defendant carrier after a complainant has demonstrated a prima facie violation of Section 260, 274,  SX- d(#>or 275 is in contrast to our decision regarding Section 271(d)(6)(B) complaints in the BOC InRegion  S2- d(#Order. There, we concluded that the burden of production with respect to an issue will shift to the  S - d(#ydefendant BOC after a complainant has made a prima facie showing that the BOC has ceased to meet the  S- d(#conditions for its approval to provide interLATA services under Section 271(d)(3).t{ {O$-ԍXBOC InRegion Order, 11 FCC Rcd. at 2190_, para. 345.(#t The specificity and  d(#/nature of the competitive checklist requirements that would form the basis of a Section 271(d)(6)(B)  d(#complaint justify a rule requiring a defendant BOC to come forward with evidence of continued  d(#Mcompliance with Section 271(d)(3). It would be difficult, however, to attempt to anticipate all of the"ny,-(-(ZZ"  xvarious factual circumstances that could form the basis of Section 260, 274, or 275 complaints. A rule  xkthat would automatically shift the burden of production in all cases would be prejudicial or otherwise  xLunreasonably burdensome on defendant carriers. As discussed in the preceding paragraph, the new rules  xgive Commission staff ample authority to effectively shift the burden of production in cases where it is necessary to promote the full and fair resolution of the matters in dispute.  S- ` ax(297.` ` Finally, we conclude, as we did in our BOC InRegion Order,{ {Ox-ԍX#X\  P6G;P#See BOC InRegion Order, 11 FCC Rcd at 21905.(#Ɠ that we should not  xemploy a presumption of reasonableness in favor of incumbent LECs in complaint actions under Sections  x260 and 275, regardless of whether the incumbent LEC is regulated as a dominant or nondominant  S- xlcarrier. As we pointed out in the BOC InRegion Order, the "presumption of lawfulness given to  xnon-dominant carrier rates and practices is employed in the context of complaints alleging violations of  xSections 201(b) and 202(a) of the Act, where the complainant must demonstrate that the defendant's rates  S$ - xand practices are "'unjust and unreasonable.'" $ Z{ {O-ԍX#X\  P6G;P#See BOC InRegion Order, 11 FCC Rcd at 21905, at para. 351.(#Ƴ Sections 260 and 275 contain unqualified prohibitions  xon discrimination by incumbent LECs and do not require considerations of reasonableness as is the case under Sections 201(b) and 202(a).  S - IV. CONCLUSION TP  S4- x)298.In this Report and Order, we amend our rules governing the filing of formal complaints to implement  xcertain complaint provisions added or amended by the 1996 Act, as well as to facilitate the full and fair  xresolution of all complaints filed against common carriers before the Commission. These rules of practice  d(#=and procedure will promote competition in all telecommunications markets by providing a forum for the  d(#prompt resolution of complaints of unreasonable, discriminatory, or otherwise unlawful conduct by telecommunications carriers.  d(#  S-   9- V. PROCEDURAL MATTERS א\  S- A.` ` Petitions for Reconsideration and Ex Parte Presentations    S- *299.` ` Parties must file any petitions for reconsideration of this Report and Order within 9thirty  d(#days from publication in the Federal Register. Parties may file oppositions to the petitions for reconsideration pursuant to Section 1.106(g) of the rules.  S-  ~+300.` ` To file a petition for reconsideration in this proceeding, parties must file an original and  d(#ten copies of all petitions and oppositions. Petitions and oppositions should be sent to the Office of the  d(#Secretary, Federal Communications Commission, Washington, D.C. 20554. If parties want each  d(#Commissioner to have a personal copy of their documents, an original plus fourteen copies must be filed.  d(#In addition, participants should submit two additional copies directly to the Common Carrier Bureau,  d(#Enforcement Division, Room 6008, 2025 M Street, N.W., Washington, D.C. 20554. The petitions and  d(#oppositions will be available for public inspection during regular business hours in the Dockets Reference  d(#Room (Room 230) of the Federal Communications Commission, 1919 M Street, N.W., Washington, D.C."!z ,-(-(ZZF#"  d(#20554. Copies of the petition and any subsequently filed documents in this matter may be obtained from ITS, Inc., 2100 M Street, N.W., Suite 140, Washington, D.C. 20037, (202) 8573800.  S- ,301.` ` Petitions for reconsideration must comply with Section 1.429 and all other applicable  S`- d(#ksections of the Commission's rules.!\`{ {O- v ԍXSee 47 C.F.R.  1.49, 1.106. We require, however, that a summary be included with all comments,  v although a summary that does not exceed three pages will not count toward the page limits. The summary  {OZ-may be paginated separately from the rest of the pleading (e.g., as "i, ii"). id.(#Ƨ Petitions also must clearly identify the specific portion of this  S8- d(#>Report and Order for which relief is sought. If a portion of a party's arguments does not fall under a  S- d(#\particular topic listed in the outline of this Report and Order, such arguments should be included in a clearly labelled section at the beginning or end of the filing.  S-  B.` ` Paperwork Reduction Act Analysis  SL - -302.` ` The decision herein has been analyzed with respect to the Paperwork Reduction Act of  d(#k1995, Pub. L. 10413, and the Office of Management and Budget ("OMB") has approved some of its  d(#requirements in OMB No. 30600411. Some of the proposals have been modified or added, however, and  d(#therefore some of the information collection requirements in this item are contingent upon approval by the OMB.  S\- C.` ` Final Regulatory Flexibility Analysis  S - P.303.` ` As required by the Regulatory Flexibility Act ("RFA"),"Z { {O- v ԍXSee 5 U.S.C.  603. The RFA, 5 U.S.C.  601 et seq., has been amended by the Contract With America  v Advancement Act of 1996, Pub. L. No. 104121, 110 Stat. 847 (1996) ("CWAAA"), Title II of the CWAA is the Small Business Regulatory Enforcement Fairness Act of 1996 ("SBREFA").(#ƀ an Initial Regulatory Flexibility  S- d(#Analysis ("IRFA") was incorporated in the Implementation of the Telecommunications Act of 1996,  d(#Amendment of Rules Governing Procedures to be Followed When Formal Complaints Are Filed Against  S- d(#Common Carriers, Notice of Proposed Rulemaking.P#\{ {OD- v ԍX Implementation of the Telecommunications Act of 1996, Amendment of Rules Governing Procedures to be  {O- v Followed When Formal Complaints Are Filed Against Common Carriers, Notice of Proposed Rulemaking, 11 FCC Rcd 20823 (1996).(#P The Commission sought written public comment  Sp- d(#on the Notice, including comment on the IRFA. The comments received were not specific to the IRFA,  d(#but are discussed below to the extent they raise concerns or make suggestions relevant to this analysis.  S"-This present Final Regulatory Flexibility Analysis ("FRFA") conforms to the RFA.U$"2 { {O -ԍXSee 5 U.S.C.  604.(#U  S- z ` ` 1.  Need for and Objectives of the Implementation of the Telecommunications Act  z of 1996, Amendment of Rules Governing Procedures to be Followed When  S- z OFormal Complaints Are Filed Against Common Carriers, Report and Order, and the Rules Adopted Herein(#  S4- "4{ $,-(-(ZZ{"Ԍ S- /304.` ` The Commission is issuing this Report and Order to implement certain complaint  d(#provisions added or amended by the 1996 Act and to improve generally the speed and effectiveness of  d(#our formal complaint process. The 1996 Act added and, in some cases, amended, key complaint  d(#provisions that, because of their resolution deadlines, necessitate substantial modification of our current  d(#rules and policies for processing formal complaints filed against common carriers pursuant to Section 208  S:- d(#[of the Act.i%:{ {O-ԍXSee 47 U.S.C.  208, 260, 271, 275.(#i Some of the requirements adopted in this Report and Order may have a significant impact  d(#Non a substantial number of small businesses as defined by Section 601(3) of the RFA. Generally,  d(#amended rules will require or encourage complainants and defendants to engage in certain prefiling  d(#activities, change service requirements, modify the form of initial pleadings, shorten filing deadlines,  d(#eliminate certain pleading opportunities that do not appear useful or necessary, and modify the discovery process.  S$ - z ?` ` 2. Summary of Significant Issues raised by the Public Comments in Response  S -to the IRFA (#  S -  0305.` ` In the IRFA, the Commission found that the rules we proposed to adopt in this proceeding  d(#may have a significant impact on a substantial number of small businesses as defined by Section 601(3)  d(#of the RFA. The IRFA solicited comment on alternatives to our proposed rules that would minimize the  d(#jimpact on small entities consistent with the objectives of this proceeding. No comments were submitted  d(#[directly in response to the IRFA. However, as described below in Section 5, we have taken into account the comments submitted generally by small entities.  S- z a` ` 3.  Description and Estimate of the Number of Small Entities to Which the  Sl-Rules Adopted in the Report and Order in CC Docket No. 96238 Will Apply (#  S-  oa1306.` ` The RFA generally defines small entity as having the same meaning as the terms "small  S- d(#business," "small organization," and "small governmental jurisdictions."F&Z{ yO-ԍ5 U.S.C.  601(6).F In addition, the term "small  d(#business" has the same meaning as the term "small business concern" under the Small Business Act, 15  d(#U.S.C.  632, unless the Commission has developed one or more definitions that are appropriate to its  S}- d(#Lactivities.'}{ {O- v ԍXSee 5 U.S.C.  601(3) (incorporating by reference the definition of "small business concern" in 5 U.S.C.  632).(# Under the Small Business Act, a "small business concern" is one that: (1) is independently  d(#zowned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria  S-- d(#established by the Small Business Administration ("SBA").L(-D{ yO"-ԍX15 U.S.C.  632.(#L Moreover, the SBA has defined a small  d(#<business for Standard Industrial Classification ("SIC") categories 4812 ("Radiotelephone Communications")  d(#and 4813 ("Telephone Communications, Except Radiotelephone") to be small entities when they have no  S- d(#.more than 1,500 employees.P){ yO)&-ԍX13 C.F.R.  121.201.(#P We first discuss the estimated number of potential complainants, which  d(#may include entities that are not telephone companies. Next we discuss generally the estimated number"|d ),-(-(ZZ"  d(#of potential defendants, which would be included in the total number of small telephone companies falling  d(#within the SBA's definitions of small business concerns and small businesses. Then, we discuss the  d(#number of small businesses within the SIC subcategories, and attempt to refine further those estimates to correspond with the categories of telephone companies that are commonly used under our rules.  S8- Q2307.` ` Consistent with our prior practice, we shall continue to exclude small incumbent LECs  d(#from the definition of "small entity" and "small business concerns" for the purpose of this FRFA. We do  d(#this because the small incumbent LECs subject to these rules are either dominant in their field of  S- d(#operations or are not independently owned and operated,*{ {O( -ԍXLocal Competition First Report and Order at paras. 132830, 1342.(#ƒ they are excluded from the definition of "small  d(#entity" and "small business concerns." Out of an abundance of caution, however, for regulatory flexibility  d(#analysis purposes, we will consider small incumbent LECs within this analysis and use the term "small  d(#incumbent LECs" to refer to any incumbent LECs that arguably might be defined by SBA as "small  S -business concerns."H+ Z{ {O-ԍXId.(#H  S -` ` X a.Potential Complainants (#  S - 3308.` ` Section 208(a) provides that formal complaints against a common carrier may be filed by  SX- d(#"[a]ny person, any body politic or municipal organization."O,X{ yO-ԍX47 U.S.C.  208(a).(#O Beyond this definition, the FCC has no  d(#control or information regarding the filing frequency of complaints, nor identities of parties that will file  d(#complaints. The filing of complaints depends entirely upon the complainant's perception that it possesses  d(#/a cause of action against a common carrier subject to the Act, as amended, and it is the complainant's  d(#=decision to file its complaint with the FCC. Therefore we are unable at this time to estimate the number of future complainants that would qualify as small business concerns under SBA's definition.  S@- 4309.` `  As noted, the RFA includes "small businesses," "small organizations" (nonprofits), and  d(#"small governmental jurisdictions." Nationwide, there are 4.44 million small business firms, according  S- d(#to SBA reporting data.-|{ yO - v /ԍX1992 Economic Census, U.S. Bureau of the Census, Table 6, (special tabulation of data under contract to Office of Advocacy of the U.S. Small Business Administration).(# A small organization is generally "any notforprofit enterprise which is  S- d(#independently owned and operated and is not dominant in its field."N.{ yO< -ԍX5 U.S.C.  601(4).(#N Nationwide, there are 275,801  S- d(#small organizations./d { yO"- v /ԍX1992 Economic Census, U.S. Bureau of the Census, Table 6, (special tabulation of data under contract to Office of Advocacy of the U.S. Small Business Administration).(# Last, "small governmental jurisdiction" generally means "governments of cities,  d(#counties, towns, townships, villages, school districts, or special districts, with a population of less than  SP-50,000."F0P { yO&-ԍ5 U.S.C.  601(5).F As of 1992, there were 85,006 such jurisdictions in the United States.1PL { yO-ԍXUS Department of Commerce, Bureau of the Census, "1992 Census of Governments."(#Ɖ"P}X1,-(-(ZZ"Ԍ S-ԙ` `  b. `  Potential Defendants (#  S- 5310.` ` Estimate of Potential Defendants that may be Classified as Small Businesses. Section  d(#208(a) provides for the filing of formal complaints for "anything done or omitted to be done by any  Sb- d(#common carrier subject to this Act[.]"O2bX{ yOZ-ԍX47 U.S.C.  208(a).(#O The FCC has no control as to the filing frequency of complaints  d(#because such filing depends entirely upon the complainant's perception that it possesses a cause of action  d(#against a common carrier subject to the Communications Act of 1934, as amended, and it is the  d(#Lcomplainant's decision to file its complaint with the FCC. This inability to predict the number of future  d(#defendants necessitates conducting this FRFA based on the number of potential small business defendants, which is the number of common carriers that qualify as small business concerns under SBA's definition.  SJ - 6311.` ` Total Number of Telephone Companies Affected. The decisions and rules adopted herein  d(#may have a significant effect on a substantial number of small telephone companies identified by the SBA.  d(#The United States Bureau of the Census ("Census Bureau") reports that, at the end of 1992, there were  S - d(#3,497 firms engaged in providing telephone service, as defined therein, for at least one year.<3 { {O\- v ԍXUnited States Department of Census, Bureau of the Census, 1992 Census of Transportation,  {O&-Communications, and Utilities: Establishment and Firm Size, at Firm Size 1123 (1995) ("1992 Census").(#< This  d(#number contains a variety of different categories of carriers, including local exchange carriers,  d(#\interexchange carriers, competitive access providers, cellular carriers, mobile service carriers, operator  d(#Kservice providers, pay telephone operators, PCS providers, covered SMR providers, and resellers. It seems  d(#lcertain that some of those 3,497 telephone service firms may not qualify as small entities or small  S - d(#incumbent LECs because they are not "independently owned and operated."R4 D{ yO-ԍX15 U.S.C.  632(a)(1).(#R For example, a PCS  d(#provider that is affiliated with an interexchange carrier having more than 1,500 employees would not meet  d(#the definition of a small business. It seems reasonable to conclude, therefore, that no more than 3,497  d(#ztelephone service firms are small entity telephone service firms or small incumbent LECs that may be  d(#Maffected by this Order. We estimate below the potential defendants affected by this order by service category.  S- ~7312.` ` Wireline Carriers and Service Providers. The SBA has developed a definition of small  d(#entities for telecommunications companies other than radiotelephone (wireless) companies (Telephone  d(#Communications, Except Radiotelephone). The Census Bureau reports that there were 2,321 such  S~- d(#Mtelephone companies in operation for at least one year at the end of 1992.r5~{ {O!-ԍX1992 Census, supra, at Firm Size 1123.(#r According to the SBA's  d(#definition, a small business telephone company other than a radiotelephone company is one employing  S.- d(#no more than 1,500 persons.6.f { yO4%-ԍX13 C.F.R.  121.201, Standard Industrial Classification (SIC) Code 4812.(#Ƅ Of the 2,321 nonradiotelephone companies listed by the Census Bureau,  d(#[2,295 companies (or, all but twentysix) were reported to have no more than 1,000 employees. Thus, at  d(#jleast 2,295 nonradiotelephone companies might qualify as small incumbent LECs or small entities based"~ 6,-(-(ZZL"  d(#on these employment statistics. However, because it seems certain that some of these carriers are not  d(#independently owned and operated, this figure necessarily overstates the actual number of non d(#radiotelephone companies that would qualify as "small business concerns" under the SBA's definition.  d(#]Consequently, we estimate using this methodology that there are no more than 2,295 small entity  d(#telephone communications companies (other than radiotelephone companies) that may be affected by the  S8-actions taken in this Report and Order.  S- B8313.` ` NonLEC wireline carriers. We next estimate more precisely the number of nonLEC  d(#wireline carriers, including interexchange carriers ("IXCs"), competitive access providers ("CAPs"),  d(#iOperator Service Providers ("OSPs"), Pay Telephone Operators, and resellers that may be affected by these  d(#rules. Because neither the Commission nor the SBA has developed definitions for small entities  d(#specifically applicable to these wireline service types, the closest applicable definition under the SBA rules  d(#for all these service types is for telephone communications companies other than radiotelephone (wireless)  d(#companies. However, the TRS data provides an alternative source of information regarding the number  d(#of IXCs, CAPs, OSPs, Pay Telephone Operators, and resellers nationwide. According to our most recent  d(#data: 130 companies reported that they are engaged in the provision of interexchange services; fiftyseven  d(#companies reported that they are engaged in the provision of competitive access services; twentyfive  d(#.companies reported that they are engaged in the provision of operator services; 271 companies reported  d(#that they are engaged in the provision of pay telephone services; and 260 companies reported that they  S - d(#jare engaged in the resale of telephone services and thirty reported being "other" toll carriers.7 { {Ot-ԍXTRS Worksheet, at Tbl. 1 (Number of Carriers Reporting by Type of Carrier and Type of Revenue).(#ƪ Although  d(#yit seems certain that some of these carriers are not independently owned and operated, or have more than  d(#1,500 employees, we are unable at this time to estimate with greater precision the number of IXCs, CAPs,  d(#OSPs, Pay Telephone Operators, and resellers that would qualify as small business concerns under SBA's  Sl- d(#\definition. Firms filing TRS Worksheets are asked to select a single category that best describes their  d(#=operation. As a result, some long distance carriers describe themselves as resellers, some as OSPs, some  d(#.as "other," and some simply as IXCs. Consequently, we estimate that there are no more than 130 small  d(#Zentity IXCs; fiftyseven small entity CAPs; twentyfive small entity OSPs; 271 small entity pay telephone  d(#service providers; and 260 small entity providers of resale telephone service; and thirty "other" toll carriers  S-that might be affected by the actions and rules adopted in this Report and Order.  SV- 9314.` ` Local Exchange Carriers. Although neither the Commission nor the SBA has developed  d(#a definition of small providers of local exchange services, we have two methodologies available to us for  d(#making these estimates. The closest applicable definition under SBA rules is for telephone  d(#communications companies other than radiotelephone (wireless) companies (SIC 4813) (Telephone  S- d(#Communications, Except Radiotelephone) as previously detailed.b8Z{ {O -ԍXSee supra at para. 269.(#b Our alternative method for estimation  d(#utilizes the data that we collect annually in connection with the Telecommunications Relay Service  d(#("TRS"). This data provides us with the most reliable source of information of which we are aware  d(#jregarding the number of LECs nationwide. According to our most recent data, 1,347 companies reported  S - d(#that they were engaged in the provision of local exchange services.9^ { {O%- v ԍXFederal Communications Commission, CCB, Industry Analysis Division, Telecommunications Industry  {On&- v MRevenue: TRS Fund Worksheet Data, Tbl. 1 (Number of Carriers Reporting by Type of Carrier and Type  {O8'-of Revenue) (Dec. 1996) ("TRS Worksheet").(# Although it seems certain that some" 9,-(-(ZZ!"  d(#.of these carriers are not independently owned and operated, or have more than 1,500 employees, we are  d(#unable at this time to estimate with greater precision the number of incumbent LECs that would qualify  d(#as small business concerns under SBA's definition. Consequently, we estimate that there are no more than  d(#\1,347 small LECs (including small incumbent LECs) that may be affected by the actions taken in this  S`-Report and Order.  S- A:315.` ` Radiotelephone (Wireless) Carriers: The SBA has developed a definition of small entities  d(#for Wireless (Radiotelephone) Carriers. The Census Bureau reports that there were 1,176 such companies  S- d(#lin operation for at least one year at the end of 1992.r:{ {O, -ԍX1992 Census, supra, at Firm Size 1123.(#r According to the SBA's definition, a small  S- d(#Lbusiness radiotelephone company is one employing no more than 1,500 persons.b;Z{ yO -ԍX13 C.F.R.  121.201, (SIC Code 4812).(#b The Census Bureau  d(#also reported that 1,164 of those radiotelephone companies had no more than 1,000 employees. Thus,  d(#=even if all of the remaining twelve companies had more than 1,500 employees, there would still be 1,164  d(#radiotelephone companies that might qualify as small entities if they are independently owned and  d(#operated. Although it seems certain that some of these carriers are not independently owned and operated,  d(#and, we are unable to estimate with greater precision the number of radiotelephone carriers and service  d(#[providers that would both qualify as small business concerns under SBA's definition. Consequently, we  d(#estimate that there are no more than 1,164 small entity radiotelephone companies that might be affected  S\-by the actions and rules adopted in this Report and Order.  S -  ;316.` ` Cellular and Mobile Service Carriers: In an effort to further refine our calculation of the  d(#number of radiotelephone companies affected by the rules adopted herein, we consider the categories of  d(#radiotelephone carriers, Cellular Service Carriers and Mobile Service Carriers. Neither the Commission  d(#nor the SBA has developed a definition of small entities specifically applicable to Cellular Service Carriers  d(#and to Mobile Service Carriers. The closest applicable definition under SBA rules for both services is for  d(#telephone companies other than radiotelephone (wireless) companies. The most reliable source of  d(#kinformation regarding the number of Cellular Service Carriers and Mobile Service Carriers nationwide  d(#of which we are aware appears to be the data that we collect annually in connection with the TRS.  d(#/According to our most recent data, 792 companies reported that they are engaged in the provision of  S- d(#[cellular services and 138 companies reported that they are engaged in the provision of mobile services.<{ {O0-ԍXTRS Worksheet, at Tbl. 1 (Number of Carriers Reporting by Type of Carrier and Type of Revenue).(#ƪ  d(#LAlthough it seems certain that some of these carriers are not independently owned and operated, or have  d(#more than 1,500 employees, we are unable at this time to estimate with greater precision the number of  d(#yCellular Service Carriers and Mobile Service Carriers that would qualify as small business concerns under  d(#SBA's definition. Consequently, we estimate that there are no more than 792 small entity Cellular Service  d(#=Carriers and no more than 138 small entity Mobile Service Carriers that might be affected by the actions  S-and rules adopted in this Report and Order.  Sf-  Q<317.` ` Broadband PCS Licensees. In an effort to further refine our calculation of the number  d(#mof radiotelephone companies affected by the rules adopted herein, we consider the category of  d(# radiotelephone carriers, Broadband PCS Licensees. The broadband PCS spectrum is divided into six  d(#frequency blocks designated A through F. As set forth in 47 C.F.R. 24.720(b), the Commission has  d(#ydefined "small entity" in the auctions for Blocks C and F as a firm that had average gross revenues of less"!|<,-(-(ZZU#"  d(#than $40 million in the three previous calendar years. Our definition of a "small entity" in the context  S- d(#of broadband PCS auctions has been approved by SBA.={ {O@- v ԍXSee Implementation of Section 309(j) of the Communications Act Competitive Bidding, PP Docket No.93253, Fifth Report & Order, 9 FCC Rcd 5532, 558184 (1994).(# The Commission has auctioned broadband  d(#PCS licenses in Blocks A through F. We do not have sufficient data to determine how many small  d(#businesses bid successfully for licenses in Blocks A and B. There were 183 winning bidders that qualified  d(#as small entities in the Blocks C, D, E, and F auctions. Based on this information, we conclude that the  S8- d(#/number of broadband PCS licensees that might be affected by the decisions in this Report and Order  d(#includes, at a minimum, the 183 winning bidders that qualified as small entities in the Blocks C through F broadband PCS auctions.  S- z  `` ` 4.  Description of Projected Reporting, Recordkeeping and other Compliance  Sr-Requirements (#  S" - =318.` ` Below, we analyze the projected reporting, recordkeeping, and `other compliance  d(#requirements that may apply to small entities and small incumbent LECs, and we mention some of the  d(#skills needed to meet these new requirements. Overall, we anticipate that the impact of these rules will  d(#kbe beneficial to small businesses and other filers. By requiring better and more complete submissions  d(#yearlier in the process, these rules will reduce the need for discovery and other information filings, thereby significantly reducing the burden on small entities.  S - >319.` ` Formal Complaint Intake Form. Section 1.721 will require all complainants to complete  S- d(#and submit a Formal Complaint Intake Form with their complaints.p>"{ {O-ԍXSee Appendix A, Section 1.721(a)(12); Appendix B.(#p The intake form requirement is  d(#designed to help complainants avoid procedural and substantive defects that might affect the staff's ability  d(# to quickly process complaints and delay full responses by defendant carriers to otherwise legitimate  d(#complaints. In addition, the completed form will enable the staff and the defendant carriers to quickly  d(#identify the specific statutory provisions under which relief is being sought in the complaint. Because the  d(#proposed form would solicit information that would be already contained in the body of the formal  d(#complaint, no additional professional skills would be necessary to complete the form. No commenters  d(# propose alternatives to the Formal Complaint Intake Form that would both ease the burden of small businesses and accomplish the Commission's objectives.  ST- ?320.` ` PreFiling Activities. The amended rules will require a complainant to certify that it  d(#discussed the possibility of settlement with the defendant carrier's representative(s) prior to filing the  S- d(#[complaint.?{ {OZ!-ԍXSee Appendix A at  1.721(a)(8).(#ƀ Although this may delay slightly a complainant's filing of a formal complaint, we conclude  d(#[that this requirement will serve to settle or narrow disputes, or facilitate the compilation and exchange of  d(#"relevant documentation or other information prior to the filing of a formal complaint with the  S- d(#Commission. No commenters propose alternatives to the prefiling activities proposals in the Notice that would both ease the burden of small businesses and accomplish the Commission's objectives.  S - @321.` ` Service. The amended rules will require complainants to personally serve complaints  d(#directly on defendants or their registered agents for service of process, such that the defendant's time to" F?,-(-(ZZt""  S- d(#.answer will begin to run upon receipt of the complaint from the complainant.@{ {Oh-ԍXSee Appendix A at  1.724(a); 1.735(d).(# Parties will be required  d(#to serve all pleadings subsequent to the complaint by hand delivery, overnight delivery, or by facsimile  S-transmission followed by regular U.S. mail delivery.uAZ{ {O-ԍXSee Appendix A at  1.735(f).(#u  S`- _A322.` ` Pleadings and Discovery. The complaint, answer, and any authorized reply must include:  d(#(1) full statements of relevant, material facts with all such documents and affidavits that the party intends  d(#to rely on to support its claims or defenses; (2) the name and address of each individual likely to have  d(#discoverable information relevant to the disputed facts alleged in the pleadings, identifying the subjects  d(#of information; (3) a description by category and location of all documents in the possession, custody, or  d(#>control of the party that are relevant to the matters in dispute; (4) an inventory of all documents and  d(#affidavits produced or identified and of all individuals identified; (5) proposed findings of fact, conclusions  SJ - d(#Mof law, and legal analysis.BJ { {O-ԍXSee Appendix A,  1.721(a)(5)(6), (10)(11);  1.724(b)(c), (f)(g);  1.726(c)(e).(#ƪ Claims based on information and belief will only be accepted if they are  d(#made in good faith and the complainant states in an affidavit why the supporting facts could not be  S - d(#reasonably ascertained.gC ~{ {O-ԍXSee Appendix A,  1.721 (a)(5).(#g Amendments to complaints will be generally prohibited.iD { {O-ԍXSee Appendix A,  1.727(h).(#i The defendant must  S - d(#file its answer within twenty days after service of the complaint.cE { {O-ԍXSee Appendix A,  1.724(a).(#c General denials are prohibited.cF 4 { {O-ԍXSee Appendix A,  1.724(b).(#c  d(#Replies will only be permitted to respond to affirmative defenses and failure to reply to an affirmative  S - d(#defense will be considered an admission of the affirmative defense.iG { {O-ԍXSee Appendix A,  1.726(a) (b).(#i All motions to compel discovery  d(#must contain a certification that a good faith attempt to resolve the dispute was made prior to filing the  S2- d(#kmotion.cH2X { {O*-ԍXSee Appendix A,  1.727(b).(#c A party's failure to file an opposition to a motion may constitute grounds for granting the  S - d(#[motion.cI { {O -ԍXSee Appendix A,  1.727(e).(#c Oppositions to motions must be filed within five business days of the filing of the motion.]J |{ {O&"-ԍXSee Appendix A,  1.727(e).(#]  d(#/All pleadings that seek Commission orders, as well as the orders themselves, must contain proposed  d(#findings of fact and conclusions of law, with supporting legal analysis, and these submissions must be  d(#@submitted in both hard copy and on computer disks in "read only" mode and formatted in the  Sj- d(#Commission's wordprocessing program.iKj{ {O'-ԍXSee Appendix A,  1.727(c) (d).(#i The parties will be required to submit a joint statement of"jK,-(-(ZZ"  S- d(#kstipulated facts, disputed facts, and key legal issues two days prior to the initial status conference.cL{ {Oh-ԍXSee Appendix A,  1.732(h).(#c  d(#NBriefs will be generally prohibited in cases in which no discovery is conducted and staff will have  S-discretion to limit the scope and timing of any authorized briefs.iMZ{ {O-ԍXSee Appendix A,  1.732(b) (c).(#i  S`- B323.` ` Selfexecuting discovery is eliminated and all discovery requests shall be subject to staff  S8- d(#authorization.`N8{ {O -ԍXSee Appendix A,  1.729.(#` The complainant must file and serve ten written interrogatory requests concurrently with  d(#its complaint and the defendant must file and serve ten written interrogatory requests by the time it serves  S- d(#its answer.cO~{ {O -ԍXSee Appendix A,  1.729(a).(#c The complainant will be permitted to file and serve an additional five written interrogatory  d(#Mrequests within three calendar days following service of the answer, provided that such interrogatory  d(#{requests shall only be directed at specific factual allegations made by a defendant in support of its  Sp- d(#affirmative defenses.iPp{ {O -ԍXSee Appendix A,  1.729(a).(#i Additional "extraordinary" discovery in the form of requests for document  SH - d(#production, depositions and additional interrogatories will be generally prohibited.`QH { {O-ԍXSee Appendix A,  1.729.(#` The staff will  d(#zconsider the interrogatory requests propounded, issue rulings and direct the parties accordingly at the  d(#[initial status conference and retain discretion to limit the scope of permissible interrogatories and modify  d(#Lor otherwise relax the discovery procedures in particular cases (including possible document production,  S - d(#[depositions, and additional interrogatories).hR 4 { {O|-ԍXSee Appendix A,  1.729(d), (h).(#h Staff will have discretion to require the use of scanning or  S -other technology on an individual case basis where review of large numbers of documents is necessary.cS { {O-ԍXSee Appendix A,  1.729(g).(#c  S0- `C324.` ` Status Conferences. An initial status conference will take place ten business days after  S - d(#the filing of the answer unless otherwise ordered by the staff.cT X { {O-ԍXSee Appendix A,  1.733(a).(#c Prior to the initial status conference, the  d(#parties must meet and confer regarding: (1) settlement prospects; (2) discovery; (3) issues in dispute; (4)  d(#.schedules for pleadings; (5) joint statements of stipulated facts, disputed facts, and key legal issues; and  d(#M(6) in a Section 271(d)(6)(B) proceeding, whether the parties agree to waive the Section 271(d)(6)(B)  Sj- d(#zninetyday resolution deadline.cUj{ {O#-ԍXSee Appendix A,  1.733(b).(#c All proposals agreed to and disputes remaining after the "meet and  d(#confer" must be reduced to writing and submitted to the staff two business days prior to the initial status  S- d(#conference.oV|{ {O6'-ԍXSee Appendix A,  1.733(b).(#o Parties must submit a joint proposed order of the rulings made in a status conference within"V,-(-(ZZ"  S- d(#[twentyfour hours of the conference, unless otherwise directed by the staff.fW{ {Oh-ԍXSee Appendix A,  1.733(f)(1).(#f Alternatively, if an audio  d(#recording or a stenographer's transcription of a status conference is made, the parties must submit, within  d(#=three business days, unless otherwise directed by the staff, and in lieu of a joint proposed order, either a  S-transcript of such recording and a copy of the audio recording or a copy of the stenographer's transcript.fXZ{ {O-ԍXSee Appendix A,  1.733(f)(2).(#f  S8- D325.` ` These amended rules may place a greater burden on parties, including small business  d(#entities, to decide issues such as discovery within a short time frame. These rules, however, will enable  d(#the Commission to resolve many preliminary issues efficiently at the initial status conference and thereby  d(#/prevent the parties from wasting resources through delay. The Commission retains the discretion to reschedule the status conference to provide more time to parties who are not under statutory deadlines.  SH -  PE326.` ` Cease, Cease and Desist Orders and Other Forms of Interim Relief. We will not delineate  d(#specific legal and evidentiary standards for issuance of cease and cease and desist orders, but will consider  S -such requests on a casebycase basis.Y { {O-ԍXSee supra "Cease, Cease and Desist Orders, and Other Forms of Interim Relief" section.(#ƛ  S - _F327.` ` In the Notice, in conjunction with our proposal to establish legal and evidentiary standards  d(#for issuance of cease and cease and desist orders, we had noted that some courts consider the following  d(#Lfactors prior to issuing interim relief: (1) likelihood of success on the merits; (2) the threat of irreparable  d(#harm absent the injunction; (3) no substantial injury to other parties; and (4) the furtherance of the public  S - d(#[interest.'Z ~{ {O*- v kԍXNotice at 20849. See also, Virginia Petroleum Jobbers Association v. FPC, 259 F.2d 921, 925 (D.C. Cir.  {O-1958); WMATA v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).(#' Several commenters stated that a more relaxed standard should apply, especially for resellers  S- d(#[and small market entrants.[{ yO^-ԍXICG Comments at 1820; TRA Comments at 21; Cable Entities Reply at 14.(#Ɔ We conclude that it is more appropriate to consider requests for interim or  d(#|injunctive relief on a casebycase basis. It is impossible to anticipate all of the various factual  d(#>circumstances that could form the basis of a complaint. Similarly, the level and types of information necessary to sustain or defend against allegations of misconduct by carriers is likely to vary widely.  S- ~    G328.` ` Damages. The Commission may exercise discretion to process a complaint in separate  d(#liability and damages complaints on its own motion in cases that do not involve one or more of the  d(#istatutory resolution deadlines and may also encourage complainants to voluntarily separate their complaints  S- d(#into liability and damages complaints.\j { {O"-ԍXSee supra "Damages, Bifurcation by the Commission and the Supplemental Complaint Process" section.(#ƭ All complaints or supplemental complaints seeking an award of  d(#jdamages must contain either a detailed computation of damages, including supporting documentation and  SV- d(#materials, or an explanation why such computation is not included.i]V { {O%-ԍXSee Appendix A,  1.722(c).(#i The Commission may end its  d(#adjudication of damages with the determination of the sufficiency of the damages computation method". ],-(-(ZZ"  d(#submitted by the complainant, but retain jurisdiction over the proceeding to the extent that the parties are  S- d(#unable to agree on an exact amount of damages by applying the mandated computation method.c^{ {O@-ԍXSee Appendix A,  1.722(e).(#c Parties  d(#may request a fourteen day suspension of the damages proceedings, during which parties may attempt to  S- d(#negotiate a settlement or use ADR procedures.f_Z{ {O-ԍXSee Appendix A,  1.722(d)(3).(#f Staff will have discretion to require a defendant to either  d(#post a bond for or place in an escrow account the amount the Commission determines is likely to be  S8-awarded.f`8{ {O -ԍXSee Appendix A,  1.722(d)(2).(#f  S- ~H329.` ` CrossComplaints and Counterclaims. All counterclaims and crosscomplaints will be  S- d(#required to be filed in separate actions.`a~{ {O -ԍXSee Appendix A,  1.725.(#` No commenters propose alternatives to the proposals for cross S- d(#complaints and counterclaims in the Notice that would both ease the burden of small businesses and  d(#accomplish the Commission's objectives. Although this rule may require small businesses to litigate  d(#certain related claims as independent actions, the existence of statutory deadlines makes this necessary.  d(#Prohibiting the introduction of counterclaims and crosscomplaints late in the complaint proceeding will  d(#?prevent parties from losing such claims because they did not have sufficient time during which to substantiate their claims.  S - _I330.` ` Upon an appropriate showing of financial hardship or other public interest factors, format  S\- d(#and content requirements shall be waived.ub\{ {O -ԍXSee Appendix A,  1.721(d); 1.724(j); 1.726(f).(#u In addition, the staff will retain discretion to take into  d(#account the burden of most of these new requirements on a party that is a small business entity. Finally,  d(#/these rules apply only to Section 208 complaints that are filed with the Commission. Complainants  d(#wishing to assure themselves of the ability to utilize full discovery, for example, are not precluded from filing their complaints in federal district court.  Sl- z /` ` 5.  Steps Taken to Minimize Significant Economic Impact on Small Entities, and  SD-Significant Alternatives Considered (#  S- J331.` ` NAD proposes that consumers, especially pro se consumers with disabilities, be permitted  S- d(#Mto serve complaints by facsimile transmission or Internet.Hc{ yO!-ԍXNAD Reply at 5.(#H We have rejected NAD's proposal. We  d(#decline to authorize service by Internet at this time because we have received insufficient comments on  d(#Mthe issue, given the significance of permitting electronic filing or service of complaint pleadings. This  d(#issue may be addressed at a later date, following implementation of procedures pursuant to our rulemaking  S.- d(#regarding the electronic filing of documents in rulemaking proceedings.d.2 { {O&- v ԍXSee Electronic Filing of Documents in Rulemaking Proceedings, Notice of Proposed Rulemaking, 12 FCC Rcd 5150 (1997).(# We reject NAD's proposal to". d ,-(-(ZZ"  d(#permit service of complaints by facsimile transmission because we conclude that service of the complaint  d(#must be accomplished in the most reliable manner possible. Although we are permitting service of  d(#pleadings subsequent to the complaint to be by facsimile transmission, such service must be accompanied  d(#/by mailed hard copies in the event of faulty transmission. Because we are requiring the defendant to  d(#submit its answer within twenty days of receipt of the complaint by the complainant, any delay or uncertainty in the receipt of the complaint would unduly infringe on the defendant's due process rights.  S- K332.` ` Some commenters suggest alternatives to the rules adopted regarding format and content  S- d(#and discovery. The Notice had proposed that information and belief allegations be prohibited. ACTA,  d(#ATSI, Bechtel & Cole, KMC, MFS, and NAD propose that complainants be permitted to submit  d(#[allegations based on information and belief because some small complainants and small businesses would  SJ - d(#|be unable to obtain information in the possession of large defendants.eJ { yO - v >ԍXACTA Comments at 4; ATSI Comments at 10; Bechtel and Cole Comments at 2; KMC Comments at 7; MFS Comments at 6; NAD Reply at 3.(# We agreed with these  d(#Lcommenters and the rule we adopt will permit information and belief allegations if they are made in good  d(#0faith and the complainant states in an affidavit why the supporting facts could not be reasonably  S -ascertained.mf { {O-ԍXSee Appendix A,  1.721 (a)(5).(#m  S - L333.` ` ATSI proposes that different, less rigorous complaint procedures be implemented for  d(#complainants alleging violations of Section 260, pertaining to the provision of telemessaging service,  S2- d(#because many of those complainants would be fledgling small businesses.Lg2{ yO-ԍXATSI Comments at 9.(#L TRA proposes special  d(#=expedited procedures for resale carrier complainants, who may be dwarfed in size and resources by their  S- d(#underlying network service providers.KhB{ yO-ԍXTRA Comments at 8.(#K For the following reasons, we decline to adopt the proposals of  d(#ATSI and TRA to establish separate complaint procedures for small business complainants. First, we  d(#.conclude that having separate sets of procedures for certain types of complaints would create confusion  d(#for parties who might be unclear as to which rules to follow and might even lead to continuous and  d(#inadvertent violations of our procedural rules. Second, we conclude that separate complaint procedures  d(#kwould permit parties to exploit our rules by alleging certain violations in order to manipulate the time  d(# frame or level of evidentiary support required in a particular complaint. For example, a complainant  d(#.alleging that a BOC has violated certain provisions of the Act might be tempted to add an allegation that  d(#the BOC has also failed to meet a condition required for approval for provision of interLATA services  d(#Lin violation of Section 271, in order to take advantage of the ninetyday resolution deadline mandated by  SR- d(#Section 271(d)(6)(B)._iR{ {O"-ԍXSee 47 U.S.C.  271(d)(6)(B).(#_ Third, to the extent that certain commenters contend that subjecting all  d(#complaints to expedited procedures will unnecessarily work hardships on complainants and defendants in  S- d(#cases without statutory deadlines,cjd { {O&-ԍXSee, e.g., APCC Comments at 7.(#c we note that the Commission will retain considerable discretion to  d(#[accommodate the needs of parties in cases where no statutory deadline applies. Finally, separate sets of" j,-(-(ZZ["  d(#procedures would be administratively burdensome for the Commission. Not only would it be cumbersome  d(#to promulgate separate sets of procedures, but it would decrease staff efficiency to apply different procedural rules to different complaints.  S`- M334.` ` Several commenters object to the complete prohibition on discovery that was mentioned  S8- d(#in the Notice, on the grounds that small complainants might be unable to obtain information in the sole  S- d(#possession of large defendant carriers.k{ {Oz-ԍXSee, e.g., Bechtel and Cole Comments at 3; ICG Reply at 9; TRA Comments at 16; TCG Comments at 3.(#Ʀ We have taken these concerns into account in our rule which  d(#=permits parties to submit discovery requests to be ruled upon by the initial status conference. This rule  d(#]gives parties, including small businesses, an opportunity to make their cases for or against limited  d(#Ldiscovery early in the proceedings and also limits each party's ability to use discovery for delay or other  d(#Kpurposes unrelated to the merits of the dispute. This abbreviation of the discovery process and subsequent  d(#iexpedited complaint resolution is necessary to enable the Commission to foster the procompetitive policies  d(#Nof the 1996 Act by resolving promptly marketplace issues that could impede the development of competition in the telecommunications field.  S -  QN335.` ` Although these amended rules may place a greater burden on a small business entity to  d(#provide better legal and factual support early in the process, we conclude that it does not significantly alter  d(#the level of evidentiary and legal support that would be ultimately required of parties in formal complaint  d(#actions pursuant to the past rules. It may, however, make it more difficult for complainants, including  d(#small businesses, to gather the information needed to prevail on their complaints. Potentially higher initial  d(#costs may be somewhat offset by the prompt resolution of complaints and the avoidance of protracted and  d(#costly discovery proceedings and briefing requirements. It has been noted, for example, that the overall  d(#.litigation costs of "rocket docket" cases in the U.S. District Court for the Eastern District of Virginia are  Sj- d(#lower than the costs of cases that take longer to resolve.<l$jZ{ yOd- v ԍXIn rocket docket cases, the total litigation costs may be lower than in traditional federal litigation.  v |Furthermore, because a preliminary injunction and damages judgment can be obtained so quickly, a  {O- v complainant's market share can be preserved. George F. Pappas and Robert G. Sterne, Patent Litigation  {O-in the Eastern District of Virginia, 35 IDEA: J.L. & Tech. 361, 363 (1995). See also supra note 48.(#< Indeed, by requiring better and more complete  d(#submissions earlier in the process, these amended rules reduce the need for discovery and other  d(#information filings, thereby significantly reducing the burden on small business entities. Although the  d(#requirement for certification of attempted settlement of discovery disputes may delay slightly the filing  d(#of a motion to compel, we conclude that this requirement will serve to settle or narrow many discovery disputes.  SR- O336.` ` CBT suggests that parties be permitted to attend status conferences by telephone  S*- d(#conference call to decrease burdens and expenses for parties located outside of Washington, D.C.Lm*F{ yO"-ԍXCBT Comments at 13.(#L We agree and will permit parties to attend by telephone conference call.  S- P337.` ` No commenters propose alternatives to the damages proposals in the Notice that would  d(#both ease the burden of small businesses and accomplish the Commission's objectives. Although these  d(#jdamages rules may require small business entities to postpone litigation of damages issues, any increased  d(#costs will be somewhat offset by the prompt resolution of the liability issues in complaints and the"<m,-(-(ZZ "  d(#avoidance of protracted and costly discovery proceedings and briefing requirements in the initial  d(#jproceeding. Permitting parties with a settlement period during a damages phase can contribute to parties  d(#\reaching a mutually satisfactory solution. The bond and escrow account requirements would only be  d(#jimplemented in certain situations, based upon staff consideration of several factors, including the balance of hardships between the complainant and defendant. X(#  S- Q338.` ` As noted, upon an appropriate showing of financial hardship or other public interest  S- d(#factors, format and content requirements shall be waived.un{ {OP-ԍXSee Appendix A,  1.721(d); 1.724(j); 1.726(f).(#u APCC and NYNEX propose specific revenue  S- d(#ylevels that would qualify a party to be eligible for a good cause waiver.aoZ{ yO -ԍXAPCC Comments at 6; NYNEX Comments at 8.(#a GST, KMC, and MFS suggest  S- d(#having parties complete a "waiver" form which would contain a statement of financial hardship.sp{ yO" -ԍXGST Comments at 89; KMC Comments at 9; MFS Comments at 9.(#s We  d(#conclude that waiver requests shall be considered on a casebycasebasis and should not be limited to  SH - d(#financial hardship reasons.qH z{ yOb-ԍXWe note that Section 1.3 of our rules states that the rules of practice and procedure may be:(#  `XX` ` suspended, revoked, amended, or waived for good cause shown, in whole or in  `part, at any time by the Commission, subject to the provisions of the  `Administrative Procedure Act and the provisions of [Part One of the rules]. Any   `6provision of the rules may be waived by the Commission on its own motion or on petition if good cause therefor is shown.x`  yO-X47 C.F.R  1.3.(#ƞ Such discretion to grant waivers of the format and content requirements  d(#based on financial hardship and other public interest factors will ensure, pursuant to Section 208, that "any  d(#person" has the right to complain to the Commission about acts or omissions by a carrier that contravene  d(#the Act. For this reason, we do not agree with APCC or NYNEX that financial hardship should be  d(#determined solely based on set revenue or asset levels. The range of potential complainants under Section  d(#208 is broad and may include individuals, state commissions, municipalities, associations, and other  d(#>entities of all forms and sizes. Likewise, the size and makeup of defendant carriers will vary greatly.  d(#LThus we conclude that waiver determinations should be made on a casebycase basis. The Commission  d(#zshall make every effort to apply its discretion in a consistent and fair manner to strike an appropriate  d(#!balance between strict compliance with the rules and the needs of certain parties for more lenient  d(#requirements and timetables. APCC also suggests that a party that receives a good cause waiver should  S- d(#!also be granted relief from discovery limitations.LrJ { yOz!-ԍXAPCC Comments at 6.(#L We conclude that the Commission shall have  d(#discretion to waive or modify some or all of its rules as appropriate when a waiver is granted for good cause shown.  S- QR339.` ` MFS, GST, and USTA additionally suggest that the Commission promulgate model or  S- d(#form complaints or pleadings for pro se parties.ss{ yOB'-ԍXMFS Comments at 9; GST Comments at 24; USTA Comments at 4.(#s We find that Section 1.721(b) of the rules contains a"js,-(-(ZZ"  d(#suggested format for formal complaints that is clear and explicit and that no further form complaints or  S- d(#jmodel pleadings for pro se complainants are necessary.Pt{ yO@-ԍX47 C.F.R.  1.721(b)(#P Furthermore, the Enforcement Division of the  d(#Common Carrier Bureau currently provides, via the Internet, direct mailings, and public reference room  d(#1access, a fact sheet designed to instruct consumers on how to file a formal complaint with the  d(#=Commission. Finally, we conclude that the range of subjects that could conceivably be contained within  S:-a pleading is too broad for a model pleading form to be of much utility to pro se parties.  S- 3S340.` ` Overall, we conclude that there will be a significant positive economic impact on small  d(#.entity carriers that, as a result of this rulemaking, will find their complaints resolved expeditiously. The  d(#=establishment of these rules of practice and procedure shall, by providing a forum for prompt resolution  d(#{of complaints of unreasonable, discriminatory, or otherwise unlawful conduct by BOCs and other telecommunications carriers, will foster robust competition in all telecommunications markets.  S -<` ` 6. Report to Congress  S - T341.` ` The Commission will send a copy of the Amendment of Rules Governing Procedures to  S - d(#ybe Followed When Formal Complaints Are Filed Against Common Carriers, Report and Order, including  S`- d(#this FRFA, <in a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement  S8- d(#Fairness Act of 1996, see 5 U.S.C.  801 (a)(1)(A). A summary of this Report and Order and this FRFA  S- d(#!will also be published in the Federal Register, see 5 U.S.C.  604(b), and will be sent to the Chief Counsel for Advocacy of the Small Business Administration.  S-8 V. ORDERING CLAUSES Đ\\  SL- `U342.` ` Accordingly, IT IS ORDERED that pursuant to Sections 1, 4, 201205, 208, 260, 271,  d(#M274, and 275 of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154, 201205, 208, 260, 271, 274, and 275, the policies, rules, and requirements set forth herein ARE ADOPTED.  S-  nV343.` ` IT IS FURTHER ORDERED that 47 C.F.R. Parts 0 and 1, ARE AMENDED as set forth in Appendix A, effective thirty days after publication of the text thereof in the Federal Register.  S4- W344.` ` IT IS FURTHER ORDERED that the Commission's Office of Public affiars SHALL  S - d(#SEND a copy of this Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the  d(#Small Business Administration in accordance with paragraph 603(a) of the Regulatory Flexibility Act, Pub.  S-L. No. 96354, 94 Stat. 1164, 5 U.S.C.  601, et seq. (1981). "Xt,-(-(ZZ"Ԍ S- # X345.` ` The Report and Order IS ADOPTED, and the requirements contained herein will become  d(#effective 70 days after publication of a summary in the Federal Register. The collection of information  d(#contained within is contingent upon approval by OMB. Notice of that approval and availability of the FCC Form 485, Formal Complaint Intake Form, will be published in the Federal Register. ` `  FEDERAL COMMUNICATIONS COMMISSION ` `    SJ - ` `  Magalie Roman Salas ` `  Secretary "" t,-(-(ZZ "  S-  ` APPENDIX A ă  S- AMENDMENT OF FORMAL COMPLAINT RULES AND PROCEDURES :CC DOCKET NO. 96238   S8-5WTEXT OF RULE CHANGES Đ\   \Parts 0 and 1 of Title 47 of the Code of Federal Regulations are amended as follows:  Sp- PART 0 COMMISSION ORGANIZATION  S - I. A. 1. a.(1)(a) i) a)Y I. A. 1. a.(1)(a) i) a)1.The authority citation for Part 0 continues to read as follows: AUTHORITY: Sec. 5, 48 Stat. 1068, as amended, 47 U.S.C. 155, 225, unless otherwise noted.  S -2.Section 0.291 is amended by revising paragraph (d) to read as follows:  S0- Section 0.291 Authority delegated. qn* * * * *  S- \(d)` ` Authority to designate for hearing. The Chief, Common Carrier Bureau shall not have  d(#=authority to designate for hearing any formal complaints which present novel questions of law or policy  d(#which cannot be resolved under outstanding precedents or guidelines. The Chief, Common Carrier Bureau  d(#=shall not have authority to designate for hearing any applications except applications for facilities where  d(#the issues presented relate solely to whether the applicant has complied with outstanding precedents and guidelines. nq* * * * *  Sd- PART 1 PRACTICE AND PROCEDURE  S -3.The authority citation for Part 1 continues to read as follows: AUTHORITY: 47 U.S.C. 151, 154, 303, and 309(j) unless otherwise noted.  St#- v ?4.Section 1.47 is amended by revising paragraphs (b) and (d), and adding new paragraph (h) to read as follows:  S&- Section 1.47 Service of documents and proof of service. (# nq* * * * * "(t,))ZZ0*"Ԍ S- (b)` ` Where any person is required to serve any document filed with the Commission, service  S-shall be made by that person or by his representative on or before the day on which the document is filed . s* * * * * S- ~\(d)` ` Except in formal complaint proceedings against common carriers under  1.720 1.736  d(#\of the rules, documents may be served upon a party, his attorney, or other duly constituted agent by  Sp-delivering a copy or by mailing a copy to the last known address. See 47 C.F.R.  1.736. nq* * * * *  S - (h)` ` Every common carrier subject to the Communications Act of 1934, as amended, shall  d(#[designate an agent in the District of Columbia, and may designate additional agents if it so chooses, upon  d(#whom service of all notices, process, orders, decisions, and requirements of the Commission may be made  d(#?for and on behalf of said carrier in any proceeding before the Commission. Such designation shall  d(#include, for both the carrier and its designated agents, a name, business address, telephone or voicemail  d(#ynumber, facsimile number, and, if available, Internet email address. The carrier shall additionally list any  d(#other names by which it is known or under which it does business, and, if the carrier is an affiliated  d(#company, the parent, holding, or management company. Such information shall filed with the Formal  d(#Complaints and Investigations Branch of the Common Carrier Bureau. Carriers must notify the  S- d(#.Commission within one week of any changes in their information. A paper copy of this designation list  d(#>shall be maintained in the Office of the Secretary of the Commission. Service of any notice, process,  d(#orders, decisions or requirements of the Commission may be made upon such carrier by leaving a copy  d(#thereof with such designated agent at his office or usual place of residence. If a carrier fails to designate  d(#jsuch an agent, service of any notice or other process in any proceeding before the Commission, or of any  d(#.order, decision, or requirement of the Commission, may be made by posting such notice, process, order, requirement, or decision in the Office of the Secretary of the Commission."$%t,-(-(ZZ&"Ԍ S- v |5.Section 1.720 is amended by revising the introductory paragraph and paragraph (h) and adding paragraph (j) to read as follows:  S`- Section 1.720 General pleading requirements. (#  v Formal complaint proceedings are generally resolved on a written record consisting of a complaint,  d(#!answer, and joint statement of stipulated facts, disputed facts and key legal issues, along with all  d(#associated affidavits, exhibits and other attachments. Commission proceedings may also require or permit  d(#[other written submissions such as briefs, written interrogatories, and other supplementary documents or  d(#[pleadings. All written submissions, both substantively and procedurally, must conform to the following standards: s* * * * * S-  \(h)` ` Specific reference shall be made to any tariff provision relied on in support of a claim or  d(#defense. Copies of relevant tariffs or relevant portions of tariffs that are referred to or relied upon in a complaint, answer, or other pleading shall be appended to such complaint, answer, or other pleading. s* * * * *  S- (j)` ` Pleadings shall identify the name, address, telephone number, and facsimile transmission  d(#number for either the filing party's attorney or, where a party is not represented by an attorney, the filing party.  S- v 6.Section 1.721 is amended by revising subparagraphs (a)(5), (a)(6), (a)(7), (a)(8), adding paragraphs  d(#(a)(9), (a)(10), (a)(10)(i), (a)(10)(ii), (a)(10)(iii), (a)(11), (a)(12), (a)(13), (a)(14), and adding paragraphs (c) and (d) to read as follows:  S!- Section 1.721 Format and content.  Sp#- \\(a) * * *  S %- o(5)` ` A complete statement of facts which, if proven true, would constitute such a violation.  d(#All material facts must be supported, pursuant to the requirements of 1.720(c) of the rules and"&t,-(-(ZZn("  d(#.subparagraph (11) of this section, by relevant affidavits and documentation, including copies of relevant  d(#written agreements, offers, counteroffers, denials, or other related correspondence. The statement of facts  d(#shall include a detailed explanation of the manner and time period in which a defendant has allegedly  d(#>violated the Act, Commission order, or Commission rule in question, including a full identification or  d(#description of the communications, transmissions, services, or other carrier conduct complained of and the  d(#=nature of any injury allegedly sustained by the complainant. Assertions based on information and belief  d(#are expressly prohibited unless made in good faith and accompanied by an affidavit explaining the basis  d(#for the plaintiff's belief and why the complainant could not reasonably ascertain the facts from the defendant or any other source;  S0-  2(6)` ` Proposed findings of fact, conclusions of law, and legal analysis relevant to the claims and arguments set forth in the complaint;  S- `(7)` ` The relief sought, including recovery of damages and the amount of damages claimed, if known;  S- ~(8)` ` Certification that the complainant has, in good faith, discussed or attempted to discuss,  d(#lthe possibility of settlement with each defendant prior to the filing of the formal complaint. Such  d(#certification shall include a statement that, prior to the filing of the complaint, the complainant mailed  d(#ja certified letter outlining the allegations that form the basis of the complaint it anticipated filing with the  d(#Commission to the defendant carrier that invited a response within a reasonable period of time and a brief  d(#summary of all additional steps taken to resolve the dispute prior to the filing of the formal complaint.  d(#.If no additional steps were taken, such certificate shall state the reason(s) why the complainant believed such steps would be fruitless;  Sp#- (9)` ` Whether a separate action has been filed with the Commission, any court, or other  d(#government agency that is based on the same claim or same set of facts, in whole or in part, or whether" %t,-(-(ZZ&"  d(#the complaint seeks prospective relief identical to the relief proposed or at issue in a noticeandcomment proceeding that is concurrently before the Commission;  S`-(10)` ` An information designation containing:  S- (i)` ` The name, address, and position of each individual believed to have firsthand knowledge  d(#of the facts alleged with particularity in the complaint, along with a description of the facts within any such individual's knowledge;  S - 2(ii)` ` A description of all documents, data compilations and tangible things in the complainant's  d(#.possession, custody, or control, that are relevant to the facts alleged with particularity in the complaint.  d(#Such description shall include for each document: (A) the date it was prepared, mailed, transmitted, or  d(#Notherwise disseminated; (B) the author, preparer, or other source; (C) the recipient(s) or intended  d(#recipient(s); (D) its physical location; and (E) a description of its relevance to the matters contained in the complaint; and  S@- (iii)` ` A complete description of the manner in which the complainant identified all persons with  d(#information and designated all documents, data compilations and tangible things as being relevant to the  d(#.dispute, including, but not limited to, identifying the individual(s) that conducted the information search  d(#!and the criteria used to identify such persons, documents, data compilations, tangible things, and information;  S- D(11)` ` Copies of all affidavits, documents, data compilations and tangible things in the  d(#complainant's possession, custody, or control, upon which the complainant relies or intends to rely to support the facts alleged and legal arguments made in the complaint;  S!-(12)` ` A completed Formal Complaint Intake Form;  Sp#-(13)` ` Verification of the filing payment required under 47 C.F.R.  1.1105(1)(c) or (d); and  S %-(14)` ` A certificate of service. nq* * * * * "&t,-(-(ZZn("Ԍ S- (c)` ` Where the complaint is filed pursuant to 47 U.S.C.  271(d)(6)(B), the complainant shall  d(#clearly indicate whether or not it is willing to waive the ninetyday resolution deadline contained within 47 U.S.C.  271(d)(6)(B), in accordance with the requirements of  1.736 of the rules.  S-  A(d)` ` The complainant may petition the staff, pursuant to  1.3 of the rules, for a waiver of any of the requirements of this section. Such waiver may be granted for good cause shown.  Sp-7.Section 1.722 is amended to read as follows:  S - Section 1.722 Damages.  S -  (a)` ` In a case where recovery of damages is sought, the complaint shall contain a clear and  d(#Lunequivocal request for damages and appropriate allegations in support of such claim in accordance with the requirements of subpart (c) of this section.  S- (b)` ` Damages will not be awarded upon a complaint unless specifically requested. Damages  d(#may be awarded, however, upon a supplemental complaint that complies fully with the requirement of  d(#subpart (c) of this section, based upon a finding of liability by the Commission in the original proceeding.  S-Provided that:  S- (1)` ` If recovery of damages is first sought by supplemental complaint, such supplemental  d(#[complaint must be filed within, and recovery is limited to, the statutory limitations contained in  415 of the Communications Act;  S- `(2)` ` If recovery of damages is clearly and unequivocally requested in the original complaint,  d(#by identification of the claim giving rise to the damages and a general statement of the nature of the injury suffered, such claim for damages shall relate back to the filing date of the original formal complaint if:  S!- o(i)` ` The complainant clearly states in the original complaint that it chooses to have liability and prospective relief issues resolved prior to the consideration of damages issues; and"t#t,-(-(ZZ$"Ԍ S- (ii)` ` The complainant files its supplemental complaint for damages within sixty days after  d(#.public notice (as defined in  1.4(b) of the Commission's rules) of a decision on the merits of the original complaint.  S- 5(3)` ` Where a complainant voluntarily elects to seek the recovery of damages upon a  d(#]supplemental complaint in accordance with the requirements of subpart (b)(2) of this section, the  d(#MCommission will resolve the liability complaint within any applicable complaint resolution deadlines  d(#contained in the Act and defer adjudication of the damages complaint until after the liability complaint has been resolved.  S -  B(c)` ` In all cases in which recovery of damages is sought, it shall be the responsibility of the  d(#complainant to include, within either the complaint or the supplemental complaint for damages filed in accordance with subpart (b) of this section, either:  S-  A(1)` ` A computation of each and every category of damages for which recovery is sought, along  d(#with an identification of all relevant documents and materials or such other evidence to be used by the complainant to determine the amount of such damages; or  S-(2)` ` An explanation of:  SP-  (i)` ` The information not in the possession of the complaining party that is necessary to develop a detailed computation of damages;  S-(ii)` ` Why such information is unavailable to the complaining party;  S`- (iii)` ` The factual basis the complainant has for believing that such evidence of damages exists; and  S!-  (iv)` ` A detailed outline of the methodology that would be used to create a computation of damages with such evidence.  S %- 5(d)` ` Where a complainant voluntarily elects to seek the recovery of damages upon a  d(#-supplemental complaint in accordance with the requirements of subpart (b)(2) of this section, the following"&t,-(-(ZZn("  S- d(#procedures may apply in the event that the Commission determines that the defendant is liable based upon its review of the original complaint:  Sd-  (1)` ` Issues concerning the amount, if any, of damages may be either designated by the Bureau  d(#[for hearing before, or, if the parties agree, submitted for mediation to, a Commission Administrative Law Judge. Such Administrative Law Judge shall be chosen in the following manner:  St-(i)` ` By agreement of the parties and the Chief Administrative Law Judge; or  S$ - (ii)` ` In the absence of such agreement, the Chief Administrative Law Judge shall designate the Administrative Law Judge.  S -  (2)` ` The Commission may, in its discretion, order the defendant either to post a bond for, or  d(#!deposit into an interest bearing escrow account, a sum equal to the amount of damages which the  d(#Commission finds, upon preliminary investigation, is likely to be ordered after the issue of damages is  d(#-fully litigated, or some lesser sum which may be appropriate, provided the Commission finds that the grant of this relief is favored on balance upon consideration of the following factors:  S-(i)` ` The complainant's potential irreparable injury in the absence of such deposit;  S-(ii)` ` The extent to which damages can be accurately calculated;  ST-(iii)` ` The balance of the hardships between the complainant and the defendant; and  S- B(iv)` ` Whether public interest considerations favor the posting of the bond or ordering of the deposit.  Sd- }(3)` ` The Commission may, in its discretion, suspend ongoing damages proceedings for fourteen  d(#days, to provide the parties with a time within which to pursue settlement negotiations and/or alternative dispute resolution procedures.  St#- (e)` ` The Commission may, in its discretion, end adjudication of damages with a determination  d(#of the sufficiency of a damages computation method or formula. No such method or formula shall contain  d(#a provision to offset any claim of the defendant against the complainant. The parties shall negotiate in"&t,-(-(ZZn("  d(#=good faith to reach an agreement on the exact amount of damages pursuant to the Commissionmandated  d(#method or formula. Within thirty days of the release date of the damages order, parties shall submit jointly to the Commission either:  S-(1)` ` A statement detailing the parties' agreement as to the amount of damages;  S-  Q(2)` ` A statement that the parties are continuing to negotiate in good faith and a request that the parties be given an extension of time to continue negotiations; or  S - (3) ` ` A statement detailing the bases for the continuing dispute and the reasons why no agreement can be reached.  S - v 8.Section 1.724 is amended by revising paragraphs (a), (b), and (c) and adding new paragraphs (f), (f)(1), (f)(2), (f)(3), (g), (h), (i), and (j) to read as follows:  S- Section 1.724 Answers.  S-  (a)` ` Any carrier upon which a copy of a formal complaint is served shall answer such  d(#{complaint in the manner prescribed under this section within twenty days of service of the formal complaint by the complainant, unless otherwise directed by the Commission.  S- #(b)` ` The answer shall advise the complainant and the Commission fully and completely of the  d(#nature of any defense, and shall respond specifically to all material allegations of the complaint. Every  d(#effort shall be made to narrow the issues in the answer. The defendant shall state concisely its defenses  d(#to each claim asserted and shall admit or deny the averments on which the complainant relies and state  d(#in detail the basis for admitting or denying such averment. General denials are prohibited. If the  d(#defendant is without knowledge or information sufficient to form a belief as to the truth of an averment,  d(#zthe defendant shall so state and this has the effect of a denial. When a defendant intends in good faith  d(#yto deny only part of an averment, the defendant shall specify so much of it as is true and shall deny only  S %- d(#the remainder. The defendant may deny the allegations of the complaint as specific denials of either designated averments or paragraphs."&t,-(-(ZZn("Ԍ S- (c)` ` The answer shall contain proposed findings of fact, conclusions of law, and legal analysis relevant to the claims and arguments set forth in the answer. qn * * * * *  S-\\(f)` ` The answer shall include an information designation containing:  S- (1)` ` The name, address, and position of each individual believed to have firsthand knowledge  d(#jof the facts alleged with particularity in the answer, along with a description of the facts within any such individual's knowledge;  S - ~(2)` ` A description of all documents, data compilations and tangible things in the defendant's  d(#possession, custody, or control, that are relevant to the facts alleged with particularity in the answer. Such  d(#description shall include for each document: (i) the date it was prepared, mailed, transmitted, or otherwise  d(#disseminated; (ii) the author, preparer, or other source; (iii) the recipient(s) or intended recipient(s); (iv) its physical location; and (v) a description of its relevance to the matters in dispute.  S@- (3)` ` A complete description of the manner in which the defendant identified all persons with  d(#information and designated all documents, data compilations and tangible things as being relevant to the  d(#.dispute, including, but not limited to, identifying the individual(s) that conducted the information search  d(#!and the criteria used to identify such persons, documents, data compilations, tangible things, and information;  S- A(g)` ` The answer shall attach copies of all affidavits, documents, data compilations and tangible  d(#things in the defendant's possession, custody, or control, upon which the defendant relies or intends to rely to support the facts alleged and legal arguments made in the answer.  S!- (h)` ` The answer shall contain certification that the defendant has, in good faith, discussed or  d(#attempted to discuss, the possibility of settlement with the complainant prior to the filing of the formal  d(#jcomplaint. Such certification shall include a brief summary of all steps taken to resolve the dispute prior" %t,-(-(ZZ&"  d(#to the filing of the formal complaint. If no such steps were taken, such certificate shall state the reason(s) why the defendant believed such steps would be fruitless;  S`- 3(i)` ` Where the complaint is filed pursuant to 47 U.S.C.  271(d)(6)(B), the defendant shall  d(#clearly indicate its willingness to waive the 90day resolution deadline contained within 47 U.S.C.  271(d)(6)(B), in accordance with the requirements of  1.736 of the rules.  Sp-  (j)` ` The defendant may petition the staff, pursuant to  1.3 of the rules, for a waiver of any of the requirements of this section. Such waiver may be granted for good cause shown.  S -9.Section 1.725 is amended to read as follows:  S - Section 1.725 Crosscomplaints and counterclaims.  v 0Crosscomplaints seeking any relief within the jurisdiction of the Commission against any carrier  d(#that is a party (complainant or defendant) to that proceeding are expressly prohibited. Any claim that  d(#might otherwise meet the requirements of a crosscomplaint may be filed as a separate complaint in  d(#accordance with  1.7201.736 of the rules. For purposes of this subpart, the term "crosscomplaint" shall include counterclaims.  S- 10.Section 1.726 is amended to read as follows:  SP- Section 1.726 Replies.  S- (a)` ` Within three days after service of an answer containing affirmative defenses presented in  d(#/accordance with the requirements of  1.724(e) of the rules, a complainant may file and serve a reply  d(#zcontaining statements of relevant, material facts that shall be responsive to only those specific factual  d(#zallegations made by the defendant in support of its affirmative defenses. Replies which contain other allegations or arguments will not be accepted or considered by the Commission.  Sp#-  P(b)` ` Failure to reply to an affirmative defense shall be deemed an admission of such affirmative  d(#=defense and of any facts supporting such affirmative defense that are not specifically contradicted in the complaint."&t,-(-(ZZn("Ԍ S- (c)` ` The reply shall contain proposed findings of fact, conclusions of law, and legal analysis relevant to the claims and arguments set forth in the reply.  S`-(d)` ` The reply shall include an information designation containing:  S- (1)` ` The name, address and position of each individual believed to have firsthand knowledge  d(#about the facts alleged with particularity in the reply, along with a description of the facts within any such individual's knowledge.  S - 2(2)` ` A description of all documents, data compilations and tangible things in the complainant's  d(#jpossession, custody, or control that are relevant to the facts alleged with particularity in the reply. Such  d(#description shall include for each document (i) the date prepared, mailed, transmitted, or otherwise  d(#disseminated; (ii) the author, preparer, or other source; (iii) the recipient(s) or intended recipient(s); (iv) its physical location; and (v) a description of its relevance to the matters in dispute.  S- (3)` ` A complete description of the manner in which the complainant identified all persons with  d(#information and designated all documents, data compilations and tangible things as being relevant to the  d(#.dispute, including, but not limited to, identifying the individual(s) that conducted the information search  d(#!and the criteria used to identify such persons, documents, data compilations, tangible things, and information;  S- (e)` ` The reply shall attach copies of all affidavits, documents, data compilations and tangible  d(#[things in the complainant's possession, custody, or control upon which the complainant relies or intends to rely to support the facts alleged and legal arguments made in the reply.  S -  A(f)` ` The complainant may petition the staff, pursuant to  1.3 of the rules, for a waiver of any of the requirements of this section. Such waiver may be granted for good cause shown."!t,-(-(ZZ(#"Ԍ S- v p 11.Section 1.727 is amended by revising paragraphs (b), (c), (d), and (e) and adding new paragraphs (g) and (h) to read as follows:  S`- Section 1. 727 Motions. s* * * * *  S- Q\(b)` ` All dispositive motions shall contain proposed findings of fact and conclusions of plaw,  d(#<with supporting legal analysis, relevant to the contents of the pleading. Motions to compel discovery must  d(#contain a certification by the moving party that a good faith attempt to resolve the dispute was made prior  d(#.to filing the motion. All facts relied upon in motions must be supported by documentation or affidavits  d(#pursuant to the requirements of  1.720(c) of the rules, except for those facts of which official notice may be taken.  S- (c)` ` The moving party shall provide a proposed order for adoption, which appropriately  d(#yincorporates the basis therefor, including proposed findings of fact and conclusions of law relevant to the  d(#.pleading. The proposed order shall be clearly marked as a "Proposed Order." The proposed order shall  d(#be submitted both as a hard copy and on computer disk in accordance with the requirements of  1.734(d)  d(#of the rules. Where appropriate, the proposed order format should conform to that of a reported FCC order.  S- }\(d)` ` Oppositions to any motion shall be accompanied by a proposed order for adoption, which  d(#[appropriately incorporates the basis therefor, including proposed findings of fact and conclusions of law  d(# relevant to the pleading. The proposed order shall be clearly captioned as a "Proposed Order." The  d(#proposed order shall be submitted both as a hard copy and on computer disk in accordance with the  d(#requirements of  1.734(d) of the rules. Where appropriate, the proposed order format should conform to that of a reported FCC order.  S %-  (e)` ` Oppositions to motions may be filed and served within five business days after the motion  d(#is filed and served and not after. Oppositions shall be limited to the specific issues and allegations"&t,-(-(ZZn("  d(#contained in such motion; when a motion is incorporated in an answer to a complaint, the opposition to  d(#such motion shall not address any issues presented in the answer that are not also specifically raised in the motion. Failure to oppose any motion may constitute grounds for granting of the motion. nq* * * * *  S-  \(g)` ` Motions seeking an order that the allegations in the complaint be made more definite and  Sp-certain are prohibited.  S - o(h)` ` Amendments or supplements to complaints to add new claims or requests for relief are  d(#?prohibited. Parties are responsible, however, for the continuing accuracy and completeness of all  d(#information and supporting authority furnished in a pending complaint proceeding as required under  1.720(g) of the rules.  S- 12.Section 1.729 is amended to read as follows:  S- Section 1.729 Discovery  S@- P(a)` ` A complainant may file with the Commission and serve on a defendant, concurrently with  d(#jits complaint, a request for up to ten written interrogatories. A defendant may file with the Commission  d(#and serve on a complainant, during the period starting with the service of the complaint and ending with  d(#the service of its answer, a request for up to ten written interrogatories. A complainant may file with the  d(#Commission and serve on a defendant, within three calendar days of service of the defendant's answer,  d(#a request for up to five written interrogatories. Subparts of any interrogatory will be counted as separate  d(#interrogatories for purposes of compliance with this limit. Requests for interrogatories filed and served  d(#pursuant to this procedure may be used to seek discovery of any nonprivileged matter that is relevant to  d(#the material facts in dispute in the pending proceeding, provided, however, that requests for interrogatories  d(#filed and served by a complainant after service of the defendant's answer shall be limited in scope to  d(#Lspecific factual allegations made by the defendant in support of its affirmative defenses. This procedure" %t,-(-(ZZ&"  d(#may not be employed for the purpose of delay, harassment or obtaining information that is beyond the scope of permissible inquiry related to the material facts in dispute in the pending proceeding.  S`- (b)` ` Requests for interrogatories filed and served pursuant to subpart (a) of this rule shall  d(#contain a listing of the interrogatories requested and an explanation of why the information sought in each interrogatory is both necessary to the resolution of the dispute and not available from any other source.  Sp- (c)` ` A responding party shall file with the Commission and serve on the propounding party  d(#jany opposition and objections to the requests for interrogatories as follows: (1) by the defendant, within  d(#=ten calendar days of service of the requests for interrogatories served simultaneously with the complaint  d(#and within five calendar days of the requests for interrogatories served following service of the answer;  d(#L(2) by the complainant, within five calendar days of service of the requests for interrogatories; and (3) in  d(#no event less than three calendar days prior to the initial status conference as provided for in  1.733(a) of the rules.  S@- (d)` ` Commission staff will consider the requests for interrogatories, properly filed and served  d(#<pursuant to subpart (a) of this section, along with any objections or oppositions thereto, properly filed and  d(#Nserved pursuant to subpart (b) of this section, at the initial status conference, as provided for in   d(#1.733(a)(5) of the rules, and at that time determine the interrogatories, if any, to which parties shall  S-respond, and set the schedule of such response.  S-  (e)` ` The interrogatories ordered to be answered pursuant to subpart (d) of this section are to  d(#be answered separately and fully in writing under oath or affirmation by the party served, or if such party  d(#Lis a public or private corporation or partnership or association, by any officer or agent who shall furnish  d(#such information as is available to the party. The answers shall be signed by the person making them. The answers shall be filed with the Commission and served on the propounding party.  S %- (f)` ` A propounding party asserting that a responding party has provided an inadequate or  d(#insufficient response to Commissionordered discovery request may file a motion to compel within ten"&t,-(-(ZZn("  d(#days of the service of such response, or as otherwise directed by Commission staff, pursuant to the requirements of  1.727 of the rules.  S`- p(g)` ` The Commission may, in its discretion, require parties to provide documents to the  d(#Commission in a scanned or other electronic format that provides (1) indexing by useful identifying  d(#information about the documents; and (2) technology that allows staff to annotate the index so as to make the format an efficient means of reviewing the documents.  S - (h)` ` The Commission may allow additional discovery, including, but not limited to, document  d(#Lproduction, depositions and/or additional interrogatories. In its discretion, the Commission may modify  d(#"the scope, means and scheduling of discovery in light of the needs of a particular case and the requirements of applicable statutory deadlines.  S- 13.Section 1.730 is deleted.  S- 14.Section 1.731 is amended by revising the section heading and paragraph (a) to read as follows:  S@- Section 1.731 Confidentiality of information produced or exchanged by the parties.  S- P(a)` ` Any materials generated in the course of a formal complaint proceeding may be designated  d(#as proprietary by that party if the party believes in good faith that the materials fall within an exemption  d(#to disclosure contained in the Freedom of Information Act (FOIA), 5 U.S.C.  552(b)(1) through (9). Any  d(#party asserting confidentiality for such materials shall so indicate by clearly marking each page, or portion  d(#kthereof, for which a proprietary designation is claimed. If a proprietary designation is challenged, the  d(#party claiming confidentiality shall have the burden of demonstrating, by a preponderance of the evidence,  d(#that the material designated as proprietary falls under the standards for nondisclosure enunciated in the FOIA. s* * * * *  S %- v 15.Section 1.732 is amended by revising paragraphs (a), (b), (c), (d), (f), and adding new paragraph (h) to read as follows:"&t,-(-(ZZn("Ԍ S- Section 1.732 Other required written submissions.  S- 3(a)` ` The Commission may, in its discretion, or upon a party's motion showing good cause,  d(#\require the parties to file briefs summarizing the facts and issues presented in the pleadings and other record evidence.  S- (b)` ` Unless otherwise directed by the Commission, all briefs shall include all legal and factual  d(#yclaims and defenses previously set forth in the complaint, answer, or any other pleading submitted in the  d(#proceeding. Claims and defenses previously made but not reflected in the briefs will be deemed  d(#abandoned. The Commission may, in its discretion, limit the scope of any briefs to certain subjects or  d(#issues. A party shall attach to its brief copies of all documents, data compilations, tangible things, and  d(#affidavits upon which such party relies or intends to rely to support the facts alleged and legal arguments  d(#made in its brief and such brief shall contain a full explanation of how each attachment is relevant to the  d(#issues and matters in dispute. All such attachments to a brief shall be documents, data compilations or  d(#tangible things, or affidavits made by persons, that were identified by any party in its information  d(#Mdesignations filed pursuant to Sections 1.721 (a)(10)(i), (10)(ii), 1.724 (f)(1), (f)(2), and 1.726 (d)(1),  d(#y(d)(2). Any other supporting documentation or affidavits that is attached to a brief must be accompanied  d(#=by a full explanation of the relevance of such materials and why such materials were not identified in the  d(#yinformation designations. These briefs shall contain the proposed findings of fact and conclusions of law  d(#Nwhich the filing party is urging the Commission to adopt, with specific citation to the record, and supporting relevant authority and analysis.  S -  $(c)` ` In cases in which discovery is not conducted, absent an order by the Commission that  d(#\briefs be filed, parties may not submit briefs. If the Commission does authorize the filing of briefs in  d(#jcases in which discovery is not conducted, briefs shall be filed concurrently by both the complainant and  d(#defendant at such time as designated by the Commission staff and in accordance with the provisions of this section."&t,-(-(ZZn("Ԍ S-  B(d)` ` In cases in which discovery is conducted, briefs shall be filed concurrently by both the complainant and defendant at such time designated by the Commission staff. s* * * * *  S-  3(f)` ` Initial briefs shall be no longer than twentyfive pages. Reply briefs shall be no longer  d(#=than ten pages. Either on its own motion or upon proper motion by a party, the Commission staff may establish other page limits for briefs. s* * * * * S -  A\(h)` ` The parties shall submit a joint statement of stipulated facts, disputed facts, and key legal  d(#yissues no later than two business days prior to the initial status conference, scheduled in accordance with the provisions of section 1.733(a) of these rules.  S- v ! 16.Section 1.733 is amended by revising paragraphs (a), (a)(2), (a)(4), (a)(5), (a)(6), (b), (c), (d), and (e) and adding new paragraphs (f), (g), and (h) to read as follows:  S- Section 1.733 Status conference.  S- (a)` ` In any complaint proceeding, the Commission may, in its discretion, direct the attorneys  d(#|and/or the parties to appear before it for a status conference. Unless otherwise ordered by the  d(#Commission, an initial status conference shall take place, at the time and place designated by the  d(#=Commission staff, within ten business days after date the answer is due to be filed. A status conference may include discussion of: s* * * * *  S!-(2)` ` The necessity for or desirability of additional pleadings or evidentiary submissions; s* * * * *  S %-(4)` ` Settlement of all or some of the matters in controversy by agreement of the parties;  S&-(5)` ` Whether discovery is necessary and, if so, the scope, type and schedule for such discovery;"&t,-(-(ZZn("Ԍ S-  (6)` ` The schedule for the remainder of the case and the dates for any further status conferences; and s* * * * *  S-(b)` ` Parties shall meet and confer prior to the initial status conference to discuss (1)(#(# S- z 4settlement prospects; (2) discovery; (3) issues in dispute; (4) schedules for pleadings; (5) joint statement  d(#jof stipulated facts, disputed facts, and key legal issues; and (6) in a 47 U.S.C.  271(d)(6)(B) proceeding,  d(#jwhether the parties agree to waive the 47 U.S.C.  271(d)(6)(B) 90day resolution deadline. Parties shall  d(#submit a joint statement of all proposals agreed to and disputes remaining as a result of such meeting to Commission staff at least two business days prior to the scheduled initial status conference.  S0-  (c)` ` In addition to the initial status conference referenced in paragraph (a) of this section, any party may also request that a conference be held at any time after the complaint has been filed.  S- Q(d)` ` During a status conference, the Commission staff may issue oral rulings pertaining to a  S@- d(#Lvariety of interlocutory matters relevant to the conduct of a formal complaint proceeding including, inter  S-alia, procedural matters, discovery, and the submission of briefs or other evidentiary materials.  S-  n(e)` ` Parties may make, upon written notice to the Commission and all attending parties at least  d(#three business days prior to the status conference, an audio recording of the Commission staff's summary  d(#of its oral rulings. Alternatively, upon agreement among all attending parties and written notice to the  d(#Commission at least three business days prior to the status conference, the parties may make an audio  d(#recording of, or use a stenographer to transcribe, the oral presentations and exchanges between and among  d(#the participating parties, insofar as such communications are "ontherecord" as determined by the  d(#Commission staff, as well as the Commission staff's summary of its oral rulings. A complete transcript  d(#kof any audio recording or stenographic transcription shall be filed with the Commission as part of the  d(#.record, pursuant to the provisions of subpart (f)(2) of this section. The parties shall make all necessary"(%t,-(-(ZZ&"  d(#arrangements for the use of a stenographer and the cost of transcription, absent agreement to the contrary, will be shared equally by all parties that agree to make the record of the status conference.  S`-(f)` ` The parties in attendance, unless otherwise directed, shall either:  S- (1)` ` Submit a joint proposed order memorializing the oral rulings made during the conference  d(#to the Commission by 5:30 pm, Eastern Time, on the business day following the date of the status  d(#conference, or as otherwise directed by Commission staff. In the event the parties in attendance cannot  d(#\reach agreement as to the rulings that were made, the joint proposed order shall include the rulings on  d(#\which the parties agree, and each party's alternative proposed rulings for those rulings on which they  d(#cannot agree. Commission staff will review and make revisions, if necessary, prior to signing and filing  d(#the submission as part of the record. The proposed order shall be submitted both as hard copy and on computer disk in accordance with the requirements of  1.734(d) of the rules; or  S-  (2)` ` Pursuant to the requirements of subpart (e) of this section, submit to the Commission by  d(#5:30 pm., Eastern Time, on the third business day following the status conference or as otherwise directed by Commission staff either:  S-(i)` ` A transcript of the audio recording of the Commission staff's summary of its oral rulings;  SP- (ii)` ` A transcript of the audio recording of the oral presentations and exchanges between and  d(#among the participating parties, insofar as such communications are "ontherecord" as determined by the Commission staff, and the Commission staff's summary of its oral rulings; or  S`- (iii)` ` A stenographic transcript of the oral presentations and exchanges between and among the  d(#<participating parties, insofar as such communications are "ontherecord" as determined by the Commission staff, and the Commission staff's summary of its oral rulings.  Sp#-  ~(g)` ` Status conferences will be scheduled by the Commission staff at such time and place as it may designate to be conducted in person or by telephone conference call." %t,-(-(ZZ&"Ԍ S-  A(h)` ` The failure of any attorney or party, following reasonable notice, to appear at a scheduled  d(#conference will be deemed a waiver by that party and will not preclude the Commission staff from conferring with those parties and/or counsel present.  S- v p17.Section 1.734 is amended by revising paragraph (c) and adding new paragraph (d) to read as follows:  Sp- Section 1.734 Specifications as to pleadings, briefs, and other documents; subscription. s* * * * *  S -  \\(c)` ` The original of all pleadings and other submissions filed by any party shall be psigned by  d(#jthe party, or by the party's attorney. The signing party shall include in the document his or her address,  d(#telephone number, facsimile number and the date on which the document was signed. Copies should be  d(#=conformed to the original. Unless specifically required by rule or statute, pleadings need not be verified.  d(#The signature of an attorney or party shall be a certificate that the attorney or party has read the pleading,  d(#motion, or other paper; that to the best of his or her knowledge, information, and belief formed after  d(#reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument  d(#for the extension, modification, or reversal of existing law; and that it is not interposed solely for purposes of delay or for any other improper purpose.  S-  (d)` ` All proposed orders shall be submitted both as hard copies and on computer disk formatted  d(#to be compatible with the Commission's computer system and using the Commission's current  d(#wordprocessing software. Each disk should be submitted in "read only" mode. Each disk should be  d(#clearly labelled with the party's name, proceeding, type of pleading, and date of submission. Each disk  d(#should be accompanied by a cover letter. Parties who have submitted copies of tariffs or reports with their  d(#{hard copies need not include such tariffs or reports on the disk. Upon showing of good cause, the Commission may waive the requirements of this paragraph." %t,-(-(ZZ&"Ԍ S-18.Section 1.735 is amended by revising paragraphs (b), (d) and (e) to read as follows:  S- Section 1.735 Copies; service; separate filings against multiple defendants.  S`- s* * * * * S- \(b)` ` The complainant shall file an original copy of the complaint, accompanied by the correct  S-fee, in accordance with Part I, subpart G (see 47 CFR 1.1105(1)(c)(d)) and, on the same day:  St-(1)` ` File three copies of the complaint with the Office of the Commission Secretary;  S$ - o(2)` ` If the complaint is filed against a carrier concerning matters within the responsibility of  S - d(#the Common Carrier Bureau (see 47 C.F.R  0.291), serve two copies on the Chief, Formal Complaints and Investigations Branch, Enforcement Division, Common Carrier Bureau;  S8- (3)` ` If the complaint is filed against a wireless telecommunications carrier concerning matters  S- d(#Lwithin the responsibility of the Wireless Telecommunications Bureau (see 47 C.F.R.  0.331), serve two  d(#copies on the Chief, Compliance and Litigation Branch, Enforcement and Consumer Information Division, Wireless Telecommunications Bureau;  S- o(4)` ` If the complaint is filed against a carrier concerning matters within the responsibility of  S- d(#the International Bureau (see 47 C.F.R.  0.261), serve a copy on the Chief, Telecommunications Division,  d(#International Bureau, and serve two copies on the Chief, Formal Complaints and Investigations Branch, Enforcement Division, Common Carrier Bureau; and  S- (5)` ` If a complaint is addressed against multiple defendants, pay a separate fee, in accordance  Sp- d(#>with Part I, subpart G (see 47 CFR 1.1105(1)(c)(d)), and file three copies of the complaint with the Office of the Commission Secretary for each additional defendant. Op * * * * *  S#- (d)` ` The complainant shall serve the complaint by hand delivery on one of the named  d(#defendant's registered agents for service of process on the same date that the complaint is filed with the Commission in accordance with the requirements of subpart (b) of this section."&t,-(-(ZZn("Ԍ S- 2(e)` ` Upon receipt of the complaint by the Commission, the Commission shall promptly send,  d(#jby facsimile transmission to each defendant named in the complaint, notice of the filing of the complaint.  d(#The Commission shall send, by regular U.S. mail delivery, to each defendant named in the complaint, a  d(#Mcopy of the complaint. The Commission shall additionally send, by regular U.S. mail to all parties, a  d(#schedule detailing the date the answer will be due and the date, time and location of the initial status conference.  S - (f)` ` All subsequent pleadings and briefs filed in any formal complaint proceeding, as well as  S - d(#Lall letters, documents or other written submissions, shall be served by the filing party on the attorney of  d(#record for each party to the proceeding, or, where a party is not represented by an attorney, each party  d(#to the proceeding either by hand delivery, overnight delivery, or by facsimile transmission followed by  d(#regular U.S. mail delivery, together with a proof of such service in accordance with the requirements of  1.47(g) of the rules. Service is deemed effective as follows:  S@-  (1)` ` Service by hand delivery that is delivered to the office of the recipient by 5:30 pm, local  d(#time of the recipient, on a business day will be deemed served that day. Service by hand delivery that  d(#=is delivered to the office of the recipient after 5:30 pm, local time of the recipient, on a business day will be deemed served on the following business day;  S- ~(2)` ` Service by overnight delivery will be deemed served the business day following the day  d(#it is accepted for overnight delivery by a reputable overnight delivery service such as, or comparable to, the US Postal Service Express Mail, United Parcel Service or Federal Express; or  S -  #(3)` ` Service by facsimile transmission that is fully transmitted to the office of the recipient by  d(#{5:30 pm, local time of the recipient, on a business day will be deemed served that day. Service by  d(#facsimile transmission that is fully transmitted to the office of the recipient after 5:30 pm, local time of the recipient, on a business day will be deemed served on the following business day. s* * * * *"&t,-(-(ZZn("Ԍ S-19.Section 1.736 is added to read as follows:  S- Section 1.736 Complaints filed pursuant to 47 U.S.C.  271(d)(6)(B).  S`- (a)` ` Where a complaint is filed pursuant to 47 U.S.C.  271(d)(6)(B), parties shall indicate  d(#whether they are willing to waive the ninetyday resolution deadline contained in 47 U.S.C.  271(d)(6)(B) in the following manner:  Sp-  n(1)` ` The complainant shall so indicate in both the complaint itself and in the Formal Complaint Intake Form, and the defendant shall so indicate in its answer; or  S - (2)` ` The parties shall indicate their agreement to waive the ninetyday resolution deadline to the Commission staff at the initial status conference, to be held in accordance with  1.733 of the rules.  S0- (b)` ` Requests for waiver of the ninetyday resolution deadline for complaints filed pursuant  d(#-to 47 U.S.C.  271(d)(6)(B) will not be entertained by the Commission staff subsequent to the initial status conference, absent a showing by the complainant and defendant that such waiver is in the public interest.  S@- v 020.Section 1.1105 is amended by revising the first entry (1)(c), redesignating the second entry (1)(c) as (1)(e), redesignating (1)(d) as (1)(f), redesignating (1)(e) as (1)(g), and adding (1)(d) to read as follows:  S- ,` Section 1.1105Schedule of charges for applications and other filings in the common  SP-carrier services.   XX` ` X XXhhCXqXXppXPayment(#  S-XX` ` X XXhhCXqXFee XppXtype(#  S-ActionXX` ` X FCC Form No.hhCamountcodeXppAddress(#p \1. * * *  S -c. Formal Complaints ` Corr. & 159qX150XppXCIZX  )Federal (#   S -and Pole Attachment ` XhhCXqXXppXX  )Communications(#   S!-Complaints, except those` XhhCXqXXppXX  )Commission,(#   S"-relating to wireless ` XhhCXqXXppXX  )Common Carrier(#   Sp#-telecommunications services,` XhhCXqXXppXEnforcement,P.O. Box(#  SH$-Filing Fee.` ` X XXhhCXqXXppXX  )358120, Pittsburgh,(#    XX` ` X XXhhCXqXXppXX  )PA 152515120.(#   S&-d. Formal Complaints ` Corr. & 159qX150XppXCIZX  )Federal (# "&t,-(-(ZZn("Ԍ S-relating to wireless ` XhhCXqXXppXX  )Communications(#   S-telecommunications  hhCXqXXppXX  )Commission,(#   S-services, including cellular ` XhhCXqXXppXX  )Wireless(#   S-telephone, paging, personal`  XhhCXqXXppXX  )Telecommunications (#   S`-communications services, and ` XhhCXqXXppXBureau, P.O.Box(#  S8-other commercial mobile radio hhCXqXXppXX  )358128, Pittsburgh, (#   S-services, Filing Fee. XXhhCXqXXppXX  )PA 152515120.(#  s* * * * *"t,-(-(ZZ'"  S-Բ+L   APPENDIX B  T-=D# &m PE37&P#Approved by OMB   3060XXXX  Expires XX/XX/XX  Est. Avg. Burden: 30 min. (#\  T-` `   S- / FORMAL COMPLAINT INTAKE FORM FCC FORM 485 ă 1.Case Name ________________________________________________________________ 2. Complainant's Name, Address, Phone and Facsimile Number, email address (if applicable): ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________  d(# 3. Complaint alleges violation of the following provisions of the Communications Act of 1934, as amended:____________________________________________________________________ 4. Complaint is subject to the following statutory resolution deadlines: ____________________ ______________________________________________________________________________ Answer (Y)es, (N)o or N/A to the following:  T- ____X5. Complaint conforms to the specifications prescribed by 47 CFR 1.49, 1.734.(#  T-____X6. Complaint complies with the pleading requirements of 47 CFR  1.720.(#  T-Ԭ____X7. Complaint conforms to the format and content requirements of 47 CFR 1.721:(#  Ty- X____X` ` a. Complaint contains a complete statement of facts, including a detailed explanation of   ]the manner in which the defendant is alleged to have violated the provisions of the Communications Act of 1934, as amended, or Commission rules or Commission orders.(#`  T- X____X` ` b. Relevant documentation and/or affidavits are attached, including agreements, offers, counteroffers, denials, or other relevant documentation.(#`  T-X____X` ` c. If damages are sought, contains specified amount and nature of damages claimed.(#`  T- X____X` ` d. Contains certification that complainant mailed a certified letter outlining the allegations   that form the basis of the complaint it anticipated filing with the Commission to the   defendant carrier that invited a response within a reasonable period of time and has, in  good faith, discussed or attempted to discuss, the possibility of settlement with each defendant prior to the filing of the formal complaint.(#`  T!-  X____X` ` e. Suit has been filed with the Commission, in another court, or government agency on   =the basis of the same cause of action or the same set of facts, in whole or in part. If yes, please explain: ____________________________________(#` ` ` ________________________________________________________________  T!%-  X____X` ` f. Seeks prospective relief identical to the relief proposed or at issue in a noticeand 1comment proceeding that is concurrently before the Commission. If yes, please"%t,-(-(ZZ*" explain:_____________________________________________________________________________________________________________________________(#`  T-X____X` ` g. Includes an information designation that contains:(#`  T- z XX` ` _____X (1) A description by category and location, of all documents, data compilations  z 1and tangible things in the complainant's possession, custody, or control that are relevant to the facts alleged with particularity in the complaint; and (#  T- z XX` ` ____X (2) The name, address, and position of each individual believed to have firsthand  z ^knowledge of the facts alleged with particularity in the complaint, along with a description of the facts within any such individual's knowledge.(#  Tp- X____X` ` h. Attached are copies of all documents, data compilations and tangible things in the  complainant's possession, custody, or control, upon which the complainant relies or intends to rely to support the facts alleged and legal arguments made in the complaint.(#`  T -X____X` ` i. Certificate of service is attached.(#`  T -  X____X` ` j. Copy of payment of $150.00 filing fee, in accordance with 47 CFR  1.1105(1)(c), is  T -attached.(#`  T - v ____X8. If complaint is filed pursuant to 47 U.S.C.  271(d)(6)(B), complainant requests waiver of the ninety day complaint resolution deadline.(#  T0- v J____X9. All reported FCC orders relied upon have been properly cited in accordance with 47 CFR  1.14.(#  T- v ____X10. Copy of complaint has been served on defendant's registered agent for service in accordance with 47 CFR  l.47(b), (d), (h) and 47 CFR  1.735(d).(#  T- v ____X11. If more than ten pages, the complaint contains a table of contents as specified in 47 CFR  1.49(b).(#  T@- v ____X12. The correct number of copies, required by 47 CFR  1.51(c), if applicable, and 47 CFR  1.735(b) have been filed.(#  T-____X13. Complaint has been properly signed and verified in accordance with 47 CFR  1.52.(#  T- v ____X14. If complaint is by multiple complainants, it conforms with the requirements of 47 CFR  1.723(a).(#  Tx- v ____X15. If complaint involves multiple grounds, it complies with the requirements of 47 CFR 1.723(b).(#  T(-____X16. If complaint is directed against multiple defendants, it complies with the requirements of 47 CFR  1.735(a)(b).(#  T- Notice: Sections 206 to 209 of the Communications Act of 1934, as amended, provide the statutory framework for rules for resolving formal complaints filed against common carriers. Section 208(a) authorizes complaints by any person "complaining of anything done or omitted to be done by any common carrier" subject to the provisions of the Act. Complainant must submit a completed FCC form 485 with any formal complaint to indicate that the complaint satisfies the procedural and substantive requirements under the Act and our rules. The information will be used to determine the sufficiency of the complaint and to resolve the merits of the dispute between the parties. We have estimated that each response to this collection of information will take, on average, 30 minutes. Our estimate includes the time to read the instructions, look through existing records, gather and maintain required data, and actually complete and review the form or response. If you have any comments on this estimate, or how we can improve the collection and reduce the burden it causes you, please write the Federal Communications Commission, AMDPERM, Paperwork Reduction Project (30600411), Washington, D.C. 20554. We will also accept your comments via the Internet if you send them to jboley@fcc.gov. PLEASE DO NOT SEND COMPLETED FORMS TO THIS ADDRESS. "(t,))ZZ-"ԌRemember You are not required to respond to a collection of information sponsored by the Federal government, and the government may not conduct or sponsor this collection, unless it displays a currently valid OMB control number or if we fail to provide you with this notice. This collection has been assigned an OMB control number of 3060XXXX). THE FOREGOING NOTICE IS REQUIRED BY THE PRIVACY ACT OF 1974, P.L. 93579, DECEMBER 31, 1994, 5 U.S.C. 552a(E)(3), AND THE PAPERWORK REDUCTION ACT OF  T-1995, P.L. 10413, OCTOBER 1, 1995, 44 U.S.C. 3507.pp "t,-(-(ZZ"  S-#&a\  P6G; &P#_ APPENDIX C ă  S- N LIST OF COMMENTERS (CC DOCKET NO. 96238) ă  S`-  American Public Communications Council America's Carriers Telecommunications Association Ameritech Association of Telemessaging Services International AT&T Bechtel & Cole, Chartered Bell Atlantic BellSouth Cincinnati Bell Telephone Company Communications and Energy Dispute Resolution Associates Communications Venture Services, Inc. and Richard C. Bartel Competitive Telecommunications Association GST Telecom, Inc. GTE ICG Telecom Group KMC Telecom Group MCI MFS Communications Company Nextlink Communications LLC NYNEX Pacific Telesis Group Southwestern Bell Sprint Teleport Communications Group Telecommunications Resellers Association United States Telephone Association U S West "(t,))ZZ?"  S-_ APPENDIX D ă  S-  LIST OF REPLY COMMENTERS (CC DOCKET NO. 96238) ă Ameritech AT&T Bechtel & Cole, Chartered BellSouth Cincinnati Bell Telephone Company GTE ICG Telecom Group Joint Reply: Bell Atlantic and NYNEX Joint Reply: Jones Intercable, Inc., Centennial Cellular Corp., Texas Cable and Telecommunications Association, Cable Television Association of Georgia, South Carolina Cable Television Association, Tennessee Cable Telecommunications Association MCI National Association of the Deaf Pacific Telesis Group Southwestern Bell Sprint Telecommunications Resellers Association United States Telephone Association