| (a) The examiner may sua sponte or upon granting the
timely written motion of a party order that all or part of a prehearing
or posthearing conference or hearing be conducted by telephony.
(b) A party may file a motion to appear at a prehearing
or posthearing conference or a hearing by telephony as follows:
(1) The motion shall be in writing, shall be filed
with the Docket Services Section and served in accordance with §1.45
of this title (relating to Service in Protested Contested Cases) not
less than 10 days prior to the proceeding at which the party wishes
to appear remotely, and shall include the pertinent telephone number(s)
and/or other connection instructions.
(2) If the motion is to conduct only a portion of the
proceeding by telephony, the requesting party shall identify the relevant
portion of the proceeding to be conducted by telephony.
(3) Any reply to a motion shall be made in writing
and shall be filed with the Docket Services Section and served in
accordance with §1.45 of this title within five days of service
of the motion.
(4) Upon agreement of the parties or a finding of good
cause, the examiner may modify the times for filing a motion for an
appearance by telephony and/or replies to such a motion.
(c) Unless a timely objection is filed by another party,
the examiner may grant the motion if:
(1) the moving party will not present any evidence
as part of its direct case other than the oral testimony of that party
or a single party representative; and
(2) the motion is to appear by telephony for which
the Commission has all necessary equipment and technology.
(d) If a timely objection is filed, the objecting party
has the burden of showing how the requested relief will unduly burden
the proceeding or unfairly prejudice the objecting party.
(e) If the moving party will present any evidence other
than the oral testimony of that party or a single party representative
or requests a method of telephony for which the Commission does not
have all necessary equipment and technology, and no timely objection
is filed, the examiner shall consider the factors in subsection (f)
of this section and issue a ruling on the motion. If a timely objection
is filed, the moving party shall have the burden of showing that the
requested relief will not unduly burden the proceeding or unfairly
prejudice any party and the examiner shall issue a ruling taking into
consideration the arguments of the parties and the factors in subsection
(f) of this section.
(f) In considering whether conducting all or part of
a prehearing or posthearing conference or hearing by telephony is
feasible, the examiner shall ensure that the proceeding will provide
due process and will be fair, and shall take into account the following
factors:
(1) whether a party's request is timely;
(2) whether all parties to a protested proceeding have
agreed in writing to conducting all or part of the proceeding by telephony;
(3) equipment and technology constraints;
(4) the number of parties;
(5) the number of witnesses;
(6) the number and type of exhibits;
(7) the distance of the parties or witnesses from Austin;
(8) the nature of the hearing;
(9) the testimony to be offered; and
(10) any other pertinent factors which may affect the
proceeding.
(g) The examiner shall issue a ruling within a reasonable
time period prior to the proceeding stating whether the proceeding
will be conducted, in whole or in part, by telephony and serve prompt
written notice of the ruling on all parties.
(h) The Commission may consider the following events
to constitute a failure to appear and grounds for default or dismissal:
(1) failure to connect or answer for more than 10 minutes
after the scheduled time for the proceeding;
(2) failure to be ready to proceed with the proceeding
after 10 minutes of the scheduled time; and
(3) a party's intentional disconnection.
(i) In the event of accidental disconnection of one
or more parties to the proceeding or other technical issues, the examiner
shall immediately recess the hearing and attempt to re-establish the
connection or connections.
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