Arbitration

PURPOSE: This rule provides the procedure for requesting and conducting arbitrations. (1) Who May Petition for Arbitration—A party to a negotiation entered into pursuant to sections 251 and 252 of the Act may file a petition for arbitration. (2) Time to File—A petition for arbitration may be filed not earlier than the one hundred thirty-fifth day nor later than the one hundred sixtieth day following the date on which an incumbent local exchange carrier receives the request for negotiation. The arbitration shall be deemed to begin on the date that the petition for arbitration is filed with the commission. Regardless of proceedings in the arbitration, the parties may continue to negotiate unresolved issues. The party petitioning for arbitration shall provide a copy of the petition to the other party or parties not later than the day the commission receives the petition. If the incumbent local exchange carrier is a “rural carrier” subject to the rural exemption contained in 47 U.S.C. section 251(f), then a commission order terminating the rural exemption must precede any petition for arbitration. (3) Content—A petition for arbitration must contain: (A) A statement of each unresolved issue; (B) A description of each party’s position on each unresolved issue; (C) A statement of all resolved issues and the terms of resolution; (D) A proposed agreement addressing all issues, including those upon which the parties have reached an agreement and those that are unresolved. In preparing the proposed agreement, the petitioner should rely on the fundamental organization of clauses and subjects contained in an agreement previously arbitrated and approved by this commission; (E) All relevant documentation that supports the petitioner’s position on each unresolved issue; and (F) Documentation that the petition complies with the time requirements of 4 CSR 240-36.040(2). (4) Appointment of Arbitrator—Upon receipt of a petition for arbitration, the commission, or its designee, shall appoint an arbitrator to facilitate resolution of the disputed issues raised by the petition and shall immediately notify the parties of the identity of the arbitrator. The commission, or its designee, may appoint an arbitrator from outside the commission’s employ only with the consent of all parties. The costs of an outside arbitrator shall be borne equally by the parties. The arbitrator shall attend all meetings, conferences and hearings as described in 4 CSR 240-36.040(9) and (10). The arbitrator shall not have participated as a mediator in a negotiation of any of the issues contained in the petition for arbitration. (5) Style of Arbitration—An arbitrator, acting pursuant to the commission’s authority under section 252(e)(5) of the Act, shall use final offer arbitration, except as otherwise provided in this section: (A) Final offer arbitration shall take the form of issue-by-issue final offer arbitration, unless all of the parties agree to the use of entire package final offer arbitration. The arbitrator in the initial arbitration meeting shall set time limits for submission of final offers and time limits for subsequent final offers, which shall precede the date of a limited evidentiary hearing. (B) Negotiations among the parties may continue, with or without the assistance of the arbitrator, after final arbitration offers are submitted. Parties may submit to the arbitrator or commission, as appropriate, any settlements reached following such negotiations. (C) To provide an opportunity for final post-offer negotiations, the arbitrator will not issue a decision for a set time after submission to the arbitrator of the final offers by the parties. (D) Each final offer submitted by the parties to the arbitrator shall: 1. Meet the requirements of section 251 of the Act, including the rules prescribed by the commission and the Federal Communications Commission pursuant to that section; 2. Establish interconnection, services, or access to unbundled network elements according to section 252(d) of the Act, including the rules prescribed by the commission and the Federal Communications Commission pursuant to that section; and 3. Provide a schedule for implementation of the agreement. (E) If a final offer submitted by one (1) or more parties fails to comply with the requirements of this section or if the arbitrator determines in unique circumstances that another result would better implement the Act, the arbitrator has discretion to take steps designed to result in an arbitrated agreement that satisfies the requirements of section 252(c) of the Act, including requiring parties to submit new final offers within a time frame specified by the arbitrator, or adopting a result not submitted by any party that is consistent with the requirements of section 252(c) of the Act, and the rules prescribed by the commission and the Federal Communications Commission pursuant to that section. (6) Discovery—Discovery may begin after the filing of a petition for arbitration and may continue up until hearings begin, unless the arbitrator sets a later date. The parties may enter into nondisclosure agreements or request the commission issue a protective order. Unless otherwise provided, the commission’s rules for discovery, 4 CSR 2402.090, apply to discovery in the arbitration and the arbitrator may permit further discovery procedures at the initial arbitration meeting, section 4 CSR 240-36.040(9). For good cause, the arbitrator may compel responses to data requests; in such cases, the response normally will be required in five (5) working days or less. Advisory staff, as provided in section (12) of this rule, may assist the arbitrator in resolving discovery disputes. (7) Opportunity to Respond—Pursuant to subsection 252(b)(3) of the Act, any party to a negotiation, which did not file a petition for arbitration (“respondent”), shall file with the commission, within twenty-five (25) days of the date the petition for arbitration is filed with the commission, a response to the petition for arbitration. For each issue listed in the petition, the respondent shall restate the issue followed by the respondent’s position on that issue. The respondent shall also identify and present any additional issues for which the respondent seeks resolution and provide such additional information and evidence necessary for the commission’s review. The respondent shall include, in the response, a document containing the language upon which the parties agree and, show where the parties disagree, and provide both the petitioner’s proposed language (bolded) and the respondent’s proposed language (underscored). Finally, the response must contain all relevant documentation that supports the respondent’s position on each issue identified in the response that remains unresolved. On the same day that the respondent files a response with the commission, the respondent must serve a copy of the response, and all supporting documentation, on each other party to the negotiation. (8) Revised Statement of Unresolved Issues— Within seven (7) days after a response is filed, the petitioner and respondent(s) shall jointly file a revised statement of unresolved issues. This statement shall reflect deletions from the list presented by the petitioner in the initial petition and add only issues that appear to be unresolved based on the response(s) to the initial petition. (9) Initial Arbitration Meeting—The arbitrator may call a mandatory initial meeting for purposes such as setting a procedural schedule, establishing a time limit for submission of final offers, allowing the filing of testimony, setting times by which testimony may be filed, simplifying issues, or resolving the scope and timing of discovery. Made Pursuant to the Telecommunications Act of 1996 (10) Arbitration Conferences and Hearings— The arbitration shall consist of markup conferences and limited evidentiary hearings. At the markup conferences, the arbitrator shall hear the concerns of the parties, determine whether the parties can further resolve their differences, and, with the parties, identify factual issues that may require limited evidentiary hearings. The arbitrator shall also announce rulings at the conferences as the issues are resolved. The conduct of the conferences and hearings shall be noticed on the commission’s hearings calendar and notice shall be provided to all parties on the service list. Parties are expected to respond to questions from the arbitrator, and the arbitrator’s advisory staff. The parties shall be given the opportunity to present witnesses at an on-therecord evidentiary hearing, and to crossexamine the witnesses of the other party(ies) to the arbitration. These conferences and hearings shall commence as soon as possible after all responses to the petition for arbitration are filed with the commission. (11) Limitation of Issues—Pursuant to subsection 252(b)(4)(A) of the Act, the arbitrator shall limit the arbitration to the resolution of the unresolved issues raised in the petition, the response and the revised statement of unresolved issues (where applicable). However, in resolving these issues, the arbitrator shall ensure that such resolution meets the requirements of the Act. (12) Arbitrator’s Reliance on Experts—The arbitrator may rely upon: (A) An arbitrator advisory staff to assist the arbitrator in the decision-making process. The arbitrator shall appoint the members of the arbitrator advisory staff from either or both commission staff and retained outside experts. The arbitrator shall inform the parties of the names of the members of the arbitrator advisory staff. Arbitrator advisory staff shall not have ex parte contacts with any of the parties individually regarding the issues in the negotiation. The arbitrator advisory staff’s role is limited to providing legal advice and other analysis to the arbitrator, not to provide evidence. Persons that advised a mediator regarding the same negotiation are ineligible to serve as members of the arbitrator advisory staff. (B) Responses to questions posed by the arbitrator that are made by commission staff members or outside individuals who are not members of advisory staff. Upon the arbitrator’s request, and after notice to the parties to the arbitration, the arbitrator may pose questions to commission staff members or outside individuals who are not advisory staff. These questions shall be answered either in written form or at an arbitration session attended by the parties. The parties may submit written responses to answers to technical questions in a timely manner as determined by the arbitrator and shall be entitled to cross-examine any commission staff member or outside individual regarding the answer he, or she, provides in response to a question posed by the arbitrator. These questions and responses shall be included in the record before the arbitrator and commission. (13) Close of Arbitration—The conference and hearing process is to conclude within ten (10) days of the commencement of the first hearing, unless the arbitrator determines otherwise. (14) Expedited Stenographic Record—An expedited stenographic record of each evidentiary hearing shall be made. The parties shall equally bear the costs of preparing the expedited transcript. (15) Authority of the Arbitrator—In addition to authority granted elsewhere in this rule, the arbitrator shall have the same authority in conducting the arbitration as a presiding officer, as defined in 4 CSR 240-2.120, has in conducting hearings under the commission’s rules of practice and procedure. Because of the short time frame mandated by the Act, the arbitrator shall have flexibility to set out procedures that may vary from those set out in this rule; however, the arbitrator’s procedures must substantially comply with the procedures listed herein. The arbitrator may vary from the schedule in this rule as long as the arbitrator complies with the deadlines contained in the Act. (16) Participation in the Arbitration Conferences and Hearings—Participation in the arbitration conferences and hearings is strictly limited to the parties in a negotiation pursuant to sections 251 and 252 of the Act, the arbitrator, the arbitrator’s advisory staff and, only to the extent needed to provide the answer(s) to a question(s) posed by the arbitrator under the procedure of section (12), commission staff and outside experts. Only those parties involved in the negotiation shall be parties in the arbitration. Others that formally request to be kept apprised of the arbitration proceeding will be placed on the “Information Only” portion of the service list. (17) Arbitration Open to the Public—Though participation in arbitration conferences and hearings is strictly limited to the parties listed in the preceding subsection, arbitration hearings shall be held in a public forum, unless circumstances dictate that a hearing, or portion thereof, be conducted in closed session due to presentation or discussion of a party’s confidential or proprietary information. Any party to an arbitration that seeks to close any part of an arbitration hearing from the public must make a written request to the arbitrator describing the circumstances that support that party’s request for a closed session. The arbitrator shall consult with the commission and rule on such requests. (18) Filing of Post-Hearing Briefs—Each party to the arbitration may file a post-hearing brief within seven (7) days of the end of the markup conferences and hearings, unless the arbitrator extends the due date. Post-hearing briefs shall present, for each disputed issue, the party’s argument in support of adopting its recommended position, with all supporting evidence and legal authorities cited therein. The arbitrator may limit the length of post-hearing briefs. The arbitrator shall also establish a time for the filing of reply briefs. The arbitrator may also permit or require the parties to file proposed arbitrator’s reports or decisions. (19) Filing of Arbitrator’s Draft Report— Within fifteen (15) days following the hearings, the arbitrator shall file a draft report with the commission. The draft report shall include a) a concise summary of each issue resolved by the arbitrator and b) a reasoned articulation of the basis for the decision on each issue, including how the decision meets the standards set in sections 251 and 252 of the Act. The arbitrator shall issue a decision on the merits of the parties’ positions on each issue raised by the petition for arbitration and response(s). Unless the result would be clearly unreasonable or contrary to the public interest, for each issue, the arbitrator shall select the position of one of the parties as the arbitrator’s decision on that issue. (20) Filing of Comments on the Arbitrator’s Draft Report—Each party and any member of the public may file comments on the arbitrator’s draft report within ten (10) days after it is filed with the commission. Such comments shall not exceed twenty (20) pages, unless otherwise authorized by the arbitrator, and shall be directed to perceived factual, legal or technical errors made in the draft report. Commenters shall make specific references to the record to support each claim of error. Comments that merely reargue positions taken in briefs will be accorded no weight. Reply comments, if permitted by the arbitrator, shall be limited to identifying misrepresentations of law, fact or condition of the record contained in comments. (21) Filing of the Final Arbitrator’s Report— The arbitrator shall file a final report with the commission no later than fifteen (15) days after the filing date for comments and not later than two hundred twenty (220) days after the request for negotiation. The final report shall include a statement of findings and conclusions and the reasons or basis therefore, on all the material issues of fact, law or discretion presented on the record. Upon filing, the secretary of the commission shall serve the final report on all parties to the arbitration. (22) Ex Parte Rules Applicable to Arbitration Proceedings—the restrictions on ex parte communications contained in 386.210, RSMo apply to arbitration proceedings held under this rule. (23) Submission Date—Arbitration proceedings shall be deemed to be submitted for decision with the filing of post-hearing briefs. (24) Commission’s Decision—The commission may conduct oral argument concerning comments on the arbitrator’s final report and may conduct evidentiary hearings at its discretion. The commission shall make its decision resolving all of the unresolved issues no later than the two hundred seventieth day following the request for negotiation. The commission may adopt, modify or reject the arbitrator’s final report, in whole or in part. AUTHORITY: section 386.410, RSMo 2000.* This rule originally filed as 4 CSR 24036.040. Original rule filed Dec. 30, 2003, effective Aug. 30, 2004. Moved to 20 CSR 4240-36.040, effective Aug. 28, 2019. *Original authority: 386.410, RSMo 1939, amended 1947, 1977, 1996.