Law360, Washington (June 16, 2015, 2:42 PM ET) — The Federal Communications Commission has several ways of resolving industry issues and disputes, from requests for rule-making or a declaratory ruling, to proceedings before the Enforcement Bureau. That last process may resemble court litigation the most, but there are several significant differences, telecom attorneys say.
While enforcement proceedings are only a small part of the FCC’s overall remit, they offer an important dispute-resolving tool for companies, which can bring a so-called Section 208 formal complaint in the Enforcement Bureau’s Market Disputes Resolution Division to work out certain issues.
But before aggrieved parties use Section 208, attorneys say, they should consider four things.
Can You Resolve Your Dispute Informally?
Before launching a formal complaint, potential petitioners are given the opportunity — and are, in fact, encouraged — to find a resolution outside the FCC, or bring an informal complaint, which is a looser, less adversarial process, attorneys say.
“Generally, the FCC wants you to start with the informal process, to let them know about the issue and essentially try to mediate,” Harris Wiltshire & Grannis LLP partner Jennifer P. Bagg said.
In many cases, this informal process is the quickest, easiest and cheapest way to fix a problem, often through a mutually agreeable deal with less stringent procedural standards than those required by the formal process, among other factors.
Depending on the nature of the dispute, it is often worth considering the informal process as the most practical solution to an issue, attorneys say. More than half of relevant disputes are resolved at this stage, Bagg notes.
What’s Your Time Frame and Big Picture?
If an aggrieved party has gone through the informal complaint process and hasn’t been able to resolve the issue, the obvious next step may seem to be a formal complaint. But before doing so, there are still several things to take into account, according to attorneys.
Certain complaints are eligible to be put on an accelerated docket — with a written decision due within 60 days — depending on certain “select circumstances” such as whether the case is simple or complex and whether expedited resolution “appears likely to advance competition in the telecommunications market.”
But moving to the “rocket docket” is up to the division’s discretion, and that move can be revoked if the division decides the process is no longer appropriate. The accelerated docket is used very rarely, with both petitioners and the commission wary of potential downsides, attorneys say.
In the vast majority of proceedings done outside the accelerated docket, bureau staff are under no set deadline, and petitioners may find themselves waiting quite awhile for a final written order, according to attorneys.
They say it often takes about two years to resolve a case, depending on factors such as the case’s complexity, the prominence of the particular disputed issue and how broad an effect a ruling will have.
“In terms of formal complaints, in my experience it can be all over the map,” Cooley LLP special counsel Michael Pryor said. “Some complaints linger for years and may become moot and are withdrawn. Others can be resolved in a year or two — sometimes sooner, but not usually.”
Before committing to a potentially long wait for a decision, petitioners should consider how important the issue is and whether the time investment is worth the potential gain, Pryor says.
This calculus should involve not only the potential effect on whomever is immediately involved in the dispute, but also whether the issue may have broader industry implications. If the latter is true, a different approach such as asking the FCC for a declaratory judgment may be the best way to proceed, according to Pryor.
“You might be better off presenting the issue as one [for a] declaratory ruling,” he said. “[Then] large parts of the industry can participate.”
Do You Have the Stamina for Strict Filing Rules?
If you’ve weighed the potential time frame and feel the dispute won’t have a broad industry effect or need for wider industry input, and the conflict still appears to require FCC involvement, then the case for bringing a formal complaint is, ostensibly, even stronger.
But aggrieved parties still need to consider the restrictions and requirements put in place by the process before deciding to launch a formal complaint, attorneys say.
There are “a certain number of hoops” you need to jump through to meet the Enforcement Bureau’s standards, Marashlian & Donahue LLC managing partner Jonathan S. Marashlian says. These include having to show an unsuccessful effort was made to resolve the dispute before resorting to a formal complaint, and having to stick to firm formatting rules for filings.
“If you are going to file a Section 208 complaint — if you’re a service provider or consumer that is aggrieved — you’d be well-advised to work with counsel,” Marashlian said. “The requirements are very, very strict … in terms of what you need to do before the commission will even take up your case.”
Also consider that disputes handled by the Enforcement Bureau are largely a paper proceeding, attorneys say. Although there are some opportunities for the parties to jointly speak to bureau staffers to help resolve issues that arise, there are no oral arguments or hearings — meaning no opportunity to call or cross-examine witnesses.
Can You Lay Out Your Case Up Front?
Despite this reliance on the papers, the scope of allowed discovery is still restricted compared to the litigation discovery process. Most discovery is required to be done up front, with only limited opportunities for supplemental discovery — usually if FCC staff request it, attorneys say.
“It tends to be front-loaded,” David H. Solomon, a Wilkinson Barker Knauer LLP partner and former FCC Enforcement Bureau chief, told Law360. “You’ve got to do serious pleading [up front], as opposed to notice pleading.”
And complaints to the Market Disputes Resolution Division need to be very detailed and backed by an affidavit or documentary evidence — more like a summary judgment motion than a complaint, attorneys say. Otherwise, a complaint runs the risk of being rejected.
This front-loaded process is often expensive, depending on the case’s scope, and can put the limits of a case on clear display, so petitioners should ensure their case is solid and well-backed before filing any complaint, according to Pryor.
“Not to say that when you go into litigation you don’t make sure you’ve got a solid case, but you essentially have to be prepared [and] have the case together before you file that formal complaint,” Pryor said. “You do … have to have a lot of evidence already compiled.”
–Editing by Edrienne Su and Chris Yates.