TR Daily Formal Complaint Order Stirs Debate on Effects for Informal Complaints
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Thursday, July 12, 2018

Formal Complaint Order Stirs Debate on Effects for Informal Complaints

Over the dissent of Commissioner Jessica Rosenworcel, the agency’s lone Democrat, the FCC today consolidated its procedural rules governing the ways in which the agency deals with three different types of formal complaints, but controversy around the item focused on amendments to the informal complaint procedural rules that agency staff and Chairman Ajit Pai said reflected the way the Commission has dealt with informal complaints for decades.

Critics of the item read it as saying that the FCC will no longer work to resolve informal consumer complaints after referring them to the relevant provider, but will instead simply advise consumers to file a formal complaint for a $225 fee and a subsequent process that is akin to that in a court proceeding. Chairman Pai and Enforcement Bureau Chief Rosemary Harold said that the amendment to the informal complaint rules merely aligns the language with long-standing agency practice, and that it will be no less active in attempt informal mediation between consumers and service providers.

There was also disagreement between Chairman Pai and Commissioner Rosenworcel over the process followed in providing the final version of the EB docket 17-245 report and order to Commissioners for a vote at today’s FCC meeting.

Commissioner Rosenworcel prefaced her reading of her written statement on the item today by saying that the final version of the item that they were voting on had not been delivered to Commissioners until more than an hour after the meeting had started. She also departed from her written statement to criticize the item, which describes itself as making changes to formal complaint rules, which she said “masked” the amendments to the informal complaint rules included in the appendix of the item.

Chairman Pai said during a press conference after the meeting that “the Item we voted on today is exactly the same as what was circulated three weeks ago” and released publicly as the draft order. He also said, “Nothing is substantively changing about how the FCC handles informal complaints.” Later in the multi-party post-meeting press conference, Enforcement Bureau staff clarified that the informal complaint portions of the order adopted were the same as those passages in the draft order, but that other parts of the order had been changed. Ms. Harold noted that the change in the informal complaint rules eliminates the word “disposition,” which, she said, “typically is a legal word that suggests there’s going to be an official Commission action,” which is not the way informal complaint proceedings are generally resolved.

When Commissioner Rosenworcel subsequently addressed reporters, she said, “I thought before I left the office yesterday evening that we had an agreement to fix this mess” by removing the language that would change the informal complaint rules. However, she added, about 20 minutes before today’s meeting, the three Republican Commissioners “changed their mind.”

As for the Chairman’s statement that the amendment did not “substantively” change the way informal complaints will be handled, Commissioner Rosenworcel said, “Then why did we make a change?”

She added, “I appreciate their understanding of it, but if you look at the language, it says if [consumers are] not satisfied with the resolution, they have to file a formal complaint.”

The order “streamlines and consolidates the procedural rules governing formal complaints against common carriers, formal complaints regarding pole attachments, and formal complaints concerning the accessibility of telecommunications and advanced communications services and equipment for people with disabilities,” the FCC noted in a press release.

“Among other changes, the new rules require defendants to answer a complaint filed against them within 30 days and complainants to file a reply within 10 days thereafter. The rules also adopt a uniform approach to discovery in all formal complaint matters, giving parties greater certainty regarding available discovery mechanisms. In addition, the new rules require ‘executive level’ pre-filing settlement discussions in all formal complaint proceedings, and codify the Enforcement Bureau’s practice of providing staff-supervised mediation services to parties wishing to negotiate settlement of their dispute. Finally, in the rules, the Commission commits to the goal of meeting a 270-day shot clock for resolution of formal complaints (except for those complaints already subject to a shorter deadline),” the press release continued.

The text of the final order was not yet available at TR Daily’s news deadline.

In his separate statement, Commissioner Mike O’Rielly said, “I thank the Chairman for working with me to maintain transparency and efficiency provisions pertaining to pole attachments. Specifically, complainants must still include information regarding pole costs in their complaint and utility pole owners must provide such information upon request before a complaint is filed. Having this information can cut down on the number of complaints ultimately filed with the Commission.”

He added, “On a larger scale, I cannot help but note that many of the elements contained in these newly minted rules for complaints can and should be used in place of our Administrative Law Judge (ALJ) ‘process,’ which has proven to be fraught with pitfalls. In fact, there seems to be little that we could not adopt from these rules — including staff interrogatories, fact-finding procedures, and appropriate timelines — to reduce or strike altogether the flawed ALJ system.”

Commissioner Brendan Carr said, “I want to thank my colleagues for accommodating my request that we also codify our existing approach to motions to dismiss. Under the FCC’s existing case law, parties may file motions to dismiss that are similar to ones that would be filed in federal court under Rule 12(b)(6). These motions can provide parties with a more efficient path to dispute resolution in the appropriate case. But since the FCC has never codified the practice, not all parties have known about it or been able to benefit from it. So as part of our efforts to ensure that all stakeholders have a level playing field when it comes to our procedural rules, I am glad that my colleagues agreed that we should codify this unwritten rule.”

In her written statement, Commissioner Rosenworcel said that “today’s order cuts the FCC out of the [informal complaint] process. Instead of working to fix problems, the agency reduces itself to merely a conduit for the exchange of letters between consumers and their carriers. Then, following the exchange of letters, consumers who remain unsatisfied will be asked to pay a $225 fee to file a formal complaint just to have the FCC take an interest.

“This is bonkers. No one should be asked to pay $225 for this agency to do its job. No one should see this agency close its doors to everyday consumers looking for assistance in a marketplace that can be bewildering to navigate. There are so many people who think Washington is not listening to them and that the rules at agencies like this one are rigged against them — and today’s decision only proves that point,” she added.

In his statement, Chairman Pai said that the different procedures for the different types of formal complaints have “occasionally produced confusion and inconsistent results. And in many cases, the different procedures and disparate results are more a result of history than logic.”

House Energy and Commerce Committee ranking minority member Frank Pallone Jr. (D., N.J.) and communications and technology subcommittee ranking minority member Mike Doyle (D., Pa.), who had voiced concern about the item earlier this week (TR Daily, July 10), said in a joint statement today, “Make no mistake, today’s rollback of key consumer protections will harm Americans who may now need to pay the FCC a $225 fee to do its job. Consumers — particularly vulnerable populations — will be worse off as a result of the FCC’s latest anti-consumer rule. Despite this anti-consumer rule change, we call on the career civil servants at the FCC to continue to act on behalf of consumers. The FCC has a duty to protect American consumers, which Chairman Pai has ignored time and time again.”

The American Cable Association welcomed the item’s provisions regarding the 270-day shot clock for pole attachment complaints and requests for accelerated treatment of pole attachment complaints. Moreover, it added, the order as adopted retained rules regarding pole owner information available to pole attachment complainants that the draft order released three weeks ago omitted.

ACA President and Chief Executive Officer Matthew Polka said, “This decision should facilitate pole attachment negotiations and attachments. ACA looks forward to the FCC acting shortly on other pole attachment reforms. In the end, all these actions by the FCC will expedite and lower the cost of broadband deployments.”

Jonathan Spalter, president and CEO of the U.S. Telecom Association said called the FCC’s action amending its complaint rules “a strong step for consumers, streamlining the complaint process so concerns are addressed promptly and appropriately.” —Lynn Stanton, [email protected]

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