| (a) Request for arbitration.
(1) Any party to negotiations concerning a request
for interconnection, services or network elements in accordance with
the Federal Telecommunications Act of 1996 (FTA) §251 may request
arbitration by the commission by filing with the commission a petition
for arbitration. The petitioner must send a copy of the petition and
any documentation to the negotiating party with whom agreement cannot
be reached the date the petition is filed with the commission.
(2) The petition must be received by the commission
during the period from the 135th to the 160th day after the date the
negotiating party received the request for negotiation. The commission
will perform a sufficiency review of the petition. To the extent that
a petition is determined to be insufficient, the commission will file
a notice of insufficiency within five working days of receipt of the
petition. In the absence of a notice of insufficiency, the petition
will be presumed sufficient.
(3) Where a petition for arbitration is found insufficient,
the presiding officer may consider dismissal without prejudice in
accordance with §21.67 of this title (relating to Dismissal of
a Proceeding) and order the petitioner to refile.
(4) A petition that is procedurally sufficient must
be filed with the commission by the 160th day after the date on which
petitioner requested negotiation.
(5) In addition to the requirements of form specified
in §21.33 of this title (relating to Formal Requisites of Pleadings
and Documents to be Filed with the Commission) the petition for arbitration
must include:
(A) the name, address, telephone number, facsimile
number, and email address of each party to the negotiations and the
party's designated representative;
(B) a description of the parties' efforts to resolve
their differences by negotiation, including the dates of the request
for negotiation and the projected timeline for compliance under FTA
deadlines;
(C) a Decision Point List (DPL) that includes a list
of any unresolved issues and the position of each party on each issue;
(D) the proposed contract language from each party,
as applicable, for each unresolved issue;
(E) all contract language agreed upon by the parties;
(F) if the arbitration request concerns a request for
interconnection under §26.272 of this title (relating to Interconnection),
the material required by §26.272(g) of this title;
(G) the current version of the interconnection agreement
being negotiated by the parties, if any, containing both the agreed
language and the disputed language of both parties; and
(H) a certificate of service that complies with the
requirements of §21.35 of this title (relating to Service of
Pleadings and Documents).
(b) Response. Any non-petitioning party to the negotiation
must respond to the request for arbitration by filing the response
with the commission and serving a copy on each party to the negotiation.
In accordance with FTA §252(b)(3) the response must be filed
within 25 days after the commission received the request for arbitration.
The response must indicate any disagreement with the matters contained
in the petition for arbitration, including a detailed response to
the DPL and alternative proposed contract language, and may provide
additional information the party wishes to present.
(c) Selection and replacement of presiding officer.
(1) Upon receipt of a complete petition for arbitration,
the commission may delegate authority to a presiding officer to hear
the arbitration. The parties will be notified of the commission-designated
presiding officer or whether the commission will hear the arbitration
directly by electronic mail or in writing. The presiding officer and
designated commission staff will act as an arbitration team. The presiding
officer may be advised on legal and technical issues by members of
the arbitration team. The commission staff members included in the
arbitration team will be identified to the parties.
(2) If at any time a presiding officer is unable to
continue presiding over a case, a substitute presiding officer will
be appointed who will perform any remaining functions without the
necessity of repeating any previous proceedings. The substitute presiding
officer will read the record of the proceedings that occurred prior
to their appointment before issuing an arbitration award or other
decision.
(d) Participation. Only parties to the negotiation
may participate as parties in the arbitration hearing. The presiding
officer may allow interested persons to file a statement of position
to be considered in the proceeding.
(e) Prehearing conference; challenges. As soon as is
practicable after selection, the presiding officer will schedule a
prehearing conference with the parties to the arbitration. At the
prehearing conference, parties may raise any challenges to the appointment
of the presiding officer or to the inclusion of any issue identified
for arbitration in the petition and responses.
(1) The presiding officer may establish criteria for
waiver of issues, including threshold issues, identified for arbitration.
If a challenge to the appointment of the presiding officer is not
raised at the first prehearing conference, such a challenge will be
deemed waived by the parties.
(2) The presiding officer will serve parties with the
orders ruling on challenges within ten working days of the first prehearing
conference.
(3) The presiding officer may schedule additional prehearing
conferences to consider discovery, procedural schedules, clarification
of issues, amending pleadings, stipulations, evidentiary matters,
requests for interim relief, and any other matters that assist the
disposition of the proceedings in a fair and efficient manner.
(f) Notice. The presiding officer will establish a
procedural schedule for the arbitration hearing, which may not be
scheduled earlier than 35 days after the commission receives a complete
request for arbitration. The presiding officer will notify the parties,
not less than ten days before the hearing, of the date, time, and
location of the hearing.
(g) Record of hearing. The arbitration hearing will
be open to the public. If any party requests it, a stenographic record
will be made of the hearing by an official court reporter appointed
by the commission. It is the responsibility of the party ordering
the stenographic record to request that the commission have an official
reporter present. A party may purchase a copy of the transcript from
the official reporter at rates set by the commission. The court reporter
must provide the transcript and exhibits in a hearing to the presiding
officer at the time the transcript is provided to the requesting party.
If no court reporter is requested by a party, the presiding officer
will record the proceedings and maintain the official record and exhibits.
Each party to the arbitration hearing is responsible for its own costs
of participation in the arbitration process.
(h) Hearing procedures.
(1) The parties to the arbitration are entitled to
be heard, to present evidence, and to cross-examine witnesses appearing
at the hearing.
(2) Redirect examination may be allowed at the discretion
of the presiding officer, provided that parties have reserved time
for redirect.
(3) The presiding officer may temporarily close the
arbitration hearing to the public to hear evidence containing information
filed as confidential under §21.77 of this title (relating to
Confidential Material). The presiding officer will close the hearing
only if there is no other practical means of protecting the confidentiality
of the information.
(4) Each party, as applicable, must provide a copy
of all exhibits or must pay the court reporter costs associated with
the production of any copies the party asks the court reporter to
provide.
(i) Applicable rules. The rules of privilege and exemption
recognized by Texas law apply to arbitration proceedings under this
subchapter. The Texas Rules of Civil Procedure, Texas Rules of Civil
Evidence, Texas Administrative Procedure Act §2001.081, and Chapter
22 of this title (relating to Procedural Rules) may be used as guidance
in proceedings under this chapter.
(j) Authority of presiding officer.
(1) Generally. The presiding officer has broad discretion
in conducting the arbitration hearing, including the authority given
to a presiding officer under §22.202 of this title (relating
to Presiding Officer). In addition, the presiding officer has broad
discretion to ask clarifying questions and to direct a party or a
witness to provide information at any time during the proceeding,
as provided by subsection (q) of this section.
(2) Subpoenas.
Cont'd... |
