BP BHEAD INT S [atlas:bill]

AN ACT Relating to telecommunications companies; adding new sections to chapter 80.36 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. A new section is added to chapter 80.36 RCW to read as follows:

(1) The commission may handle on an expedited basis, as provided in this section, any complaint by a telecommunications company that another telecommunications company has violated:

(a) Any duty or obligation imposed upon telecommunications companies, local exchange carriers, and incumbent local exchange carriers under 47 U.S.C. Sec. 251 (a) through (c);

(b) Any agreement approved by the commission under 47 U.S.C. Sec. 252(e); or

(c) Any act or practice which the commission may identify by rule as serving as a barrier to competitive entry in the telecommunications market.

(2) Before filing a complaint with the commission, the complainant telecommunications company must serve notice to the defendant telecommunications company of its intent to file a complaint with the commission alleging a violation under subsection (1) of this section and provide a forty-eight hour period for the alleged violation to be corrected.

(3) If the defendant telecommunications company fails to cure the alleged violation within forty-eight hours, the complainant telecommunications company shall file a complaint, application for expedited review, and any petition for emergency relief with the commission and serve the defendant with the same. The complainant telecommunications company shall attach to the complaint a copy of the written notification that was served on the defendant telecommunications company and any written response that was received thereto.

(4) The defendant telecommunications company shall have seven days to answer a complaint and shall file its answer and any other responsive pleadings with the commission and serve the complainant with the same.

(5) Within three working days of a complaint, application for expedited review, and any petition for emergency relief being filed with the commission, all parties shall serve on each other any discovery requests for the production of data. Each party shall have ten days to respond to the other party's requests. Any objections to the discovery requests shall be served on the other party and filed with the commission within five days after receipt of the discovery request.

(6) Once the defendant files an answer to the complaint, the commission or its designee shall within three working days determine whether to:

(a) Approve the application for expedited review and begin an expedited adjudicative proceeding under this section; or

(b) Deny the application and instead proceed with a regular adjudicative proceeding under RCW 80.04.110.

(7)(a) If the commission or its designee approves an application for expedited review, the commission may concurrently issue an order granting a petition for emergency relief. An order for emergency relief may be granted without an evidentiary hearing. To issue an order for emergency relief the commission or its designee must find that:

(i) The complainant is likely to succeed on the merits of the complaint;

(ii) The complainant will likely suffer irreparable harm in its ability to serve customers if emergency relief is not granted;

(iii) The emergency relief sought is technically feasible; and

(iv) An order granting emergency relief is in the public interest.

(b) An order for emergency relief shall direct the defendant telecommunications company to act or refrain from acting as the commission or its designee finds necessary to avoid, prevent, or mitigate the complained of harm. An order for emergency relief shall set a deadline for the defendant telecommunications company to comply with the order before penalties are imposed under section 3 of this act. The order granting emergency relief shall remain in effect until the commission issues a final order deciding the complaint filed under subsection (3) of this section.

(8) If an application for expedited review is approved:

(a) The commission shall designate a commissioner or other person to preside over the expedited adjudicative proceeding;

(b) Within fourteen days of approving the application for expedited review, the presiding officer shall schedule a prehearing conference which may be conducted by telephone. During the prehearing conference the presiding officer shall:

(i) Resolve all outstanding discovery disputes and establish a schedule for completion of any additional discovery; and

(ii) Confirm that an attempt to resolve the dispute through nonbinding mediation under section 2 of this act has been or is being conducted;

(c) The presiding officer shall schedule a hearing to commence within thirty days of the complaint being filed. During the hearing evidence may be presented by the parties and commission staff both orally and in written form. Any individual who testifies either orally or in written form must be available for cross-examination;

(d) The presiding officer shall issue a written decision within forty-five days of the complaint being filed. The presiding officer's decision shall be based on the facts and no finding of an intent to impede market entry by a competitor shall be necessary in order to determine that a violation has occurred. The decision shall set forth the reasoning for the decision and, if the decision finds that a violation under subsection (1) of this section has occurred, directions and a deadline for correcting the violation. The decision shall state the amount of any penalties imposed under section 3 of this act;

(e) The decision of the presiding officer shall be a final order of the commission unless exceptions are filed within seven days after service of the decision upon the parties or the commission takes up the matter on its own motion within seven days after service of the decision upon the parties.

(i) If exceptions are filed or the commission takes up the matter on its own motion, then the commission shall fifteen days after service of the presiding officer's decision issue a final order.

(ii) Responses to any exceptions filed under this subsection shall be made within three business days after service of the exceptions.

(iii) Any party may file a petition for reconsideration of a commission final order as provided for by commission rule.

NEW SECTION. Sec. 2. A new section is added to chapter 80.36 RCW to read as follows:

(1) Whenever the commission or its designee approves an application for expedited review of a complaint under section 1 of this act, the commission or its designee shall conduct at least one mediation session with the parties.

(2) The mediation session shall be held no later than the date scheduled for a prehearing conference under section 1(8) of this act. An individual with authority to negotiate and settle the matter shall be present from each party.

(3) The mediation session shall be confidential and any verbal statements made during the session shall not be disclosed.

(4) Any agreement of the parties resolving any disputed issue shall be submitted to the mediator for approval. Approval shall be granted unless the mediator finds that the agreement is based upon a mistake in material fact or that the agreement is not in the public interest. The approved agreement shall be deemed to constitute a final order of the commission, unless the commission enters its own order within six working days following the mediator's approval of the agreement.

(5) Any agreement or order resolving a dispute through mediation shall be considered part of the public record and shall be made available by the commission upon request.

(6) Willful or negligent failure to attend the mediation conference or to comply with the mediator's directions shall be reported to the mediator or the commission in writing.

NEW SECTION. Sec. 3. A new section is added to chapter 80.36 RCW to read as follows:

(1) If the commission or its designee finds that a violation under section 1(1) of this act has occurred, the commission may impose penalties up to one hundred thousand dollars per violation. Additionally, the commission or its designee may impose a penalty of one hundred thousand dollars for each day beyond the deadline set in the decision issued under section 1(8) of this act that a violation continues.

(2) If parties are able to resolve a dispute through mediation, as provided in section 2 of this act, there shall be no assessment of one hundred thousand dollars per violation. Nonetheless, if a violation is not corrected by the date specified in any mediation agreement, the commission or its designee may impose a penalty of one hundred thousand dollars for each day beyond the specified date that a violation continues.

(3) If the commission or its designee issues an order granting a petition for emergency relief under section 1(7) of this act and the defendant telecommunications company fails to comply with the deadline set in that order, then the commission or its designee may impose a penalty of one hundred thousand dollars for each day beyond the deadline that noncompliance continues.

(4) Any imposition of penalties shall be by order of the commission, after providing for notice and a hearing.

(5) Penalties imposed under this section shall be in addition to any monetary payments ordered by the commission under an interconnection agreement and shall not restrict a complainant's ability to recover damages under any other remedy that may be available under any other provision of state or federal law.

(6) Payment of penalties imposed under this section shall be made to the public service revolving fund within thirty days of issuance by the commission of an order imposing penalties. The commission is authorized to apply to a court of competent jurisdiction for an order requiring payment of any penalties imposed under this section.

NEW SECTION. Sec. 4. A new section is added to chapter 80.36 RCW to read as follows:

(1) To the extent that the provisions of this section and sections 2 and 3 of this act may differ with the provisions of chapter 34.05 RCW, the administrative procedure act, the provisions of this section and sections 2 and 3 of this act shall govern.

(2) In implementing the provisions of this section and sections 2 and 3 of this act, the commission may:

(a) Adopt rules as needed;

(b) Obtain external resources and contract for outside persons to serve as presiding officers, mediators, or consultants for the purposes of facilitating the prompt disposition of expedited proceedings authorized under this section; and

(c) Establish by rule fees to be paid by persons seeking commission action and by parties to proceedings under this section and sections 1 through 3 of this act to offset in whole or part the commission's expenses.

NEW SECTION. Sec. 5. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.