Before The FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Implementation of Section 255 ) of the Telecommunications Act ) of 1966 ) ) WT Docket No. 96-198 Access to Telecommunications ) Services, Telecommunications ) Equipment, and Customer ) Premises Equipment by Persons ) with Disabilities ) To: The Commission COMMENTS OF GENE A. BECHTEL 1. My credentials for submitting these comments include that facts that (a) I and members of my family experience life- long hearing disabilities, (b) I use hearing aids and other assistive devices in the office, home and while participating in life experiences such as appearances in court rooms and in business conferences, (c) am a member of and active in Self Help for Hard of Hearing People, Inc. (SHHH) and (d) have practiced communications law for more than 35 years gaining experience in FCC rulemaking, policymaking and enforcement activities. I support the comments filed by SHHH in this matter. I. Veto power over filing formal complaints (Notice at 147) 2. The notice of proposed rulemaking, at 147, proposes a departure from the rules and practices under Section 208 of the Communications Act wherein citizens may no longer file a formal complaint without the consent of the government. The only rationale for this proposal is the unanalytical sentence "...we believe the differences between typical common carrier complaints and Section 255 complaints require specifically tailored procedural rules for Section 255 complaints." 3. I shall discuss the procedural rules under Section 208 in relation to enforcement of Section 255 in specific detail in Part II of these comments. But the Commission is not proposing any specific tailoring of procedural rules. It is abolishing a concept that has been around for about a century now that citizens have the right to file complaints before regulatory agencies, not that they must negotiate with an agency for the privilege of doing so. 4. Congress has made the judgment that the mechanism of Section 208 of the Act is available for the enforcement of Section 255. It did so without reservation, exception or caveat. Under Section 208, any party may file a complaint against a common carrier for violation of statutory provisions regarding which Section 208 is an enforcement mechanism. This is a statutory right, arising from the seminal precedent of the Interstate Commerce Act. Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 454 (1979); Aeronautical Radio, Inc. v. FCC, 642 F.2d 1221, 1234 (D.C.Cir. 1980); American Message Centers v. Sprint Communications Co. L.P., 8 FCC Rcd 5522 (6) (Commission 1993); WATS International Corporation v. Group Long Distance (USA), Inc., 11 FCC Rcd 3720 (13) (Common Carrier Bureau 1995). 5. The Commission's informal complaint procedures under Section 208, to be sure, will most likely be useful in the enforcement of Section 255. However, in the Commission's own words, informal complaints "for the most part are correspondence or verbal communications complaining of a carrier's action and do not generally include legal or technical arguments." Amendment of Rules Governing Procedures to be followed where Formal Complaints are filed against Common Carriers, FCC 86-576 (2) (Commission, released January 9, 1987). The format and procedure are simple, often involving oral communications, with an option to convert the complaint to a formal one if the informal process does not satisfy the complaining party. 47 C.F.R. 1.716-718. 6. The Commission's rules governing formal complaints are structured to elicit full factual information and documents relevant to the positions of the parties, with limited and controlled discovery, a litigation status conference amongst the parties and the Commission's staff, and a briefing of the facts and the legal issues for agency decision. 47 C.F.R. 1.720-735. These formal complaint rules are designed to deal with "technical" and "legal" arguments not susceptible to resolution by an exchange of correspendence and oral communications. Surely no less than informal complaint rules, if not more so, these formal complaint rules constitute an essential, integral part of the framework for implementing the statutory rights of citizens under Section 208 of the Act. 7. Formal complaints may, in due course, be dismissed or denied, of course. But research has disclosed no reported rule, policy or decision in which a veto power over the very use, itself, of the formal complaint procedure under Section 208 has ever previously been employed by this agency. No such rule, policy or decision has been cited in the notice of proposed rulemaking in support of this unprecedented proposal. 8. What are the "unstated" differences between typical common carrier complaints and Section 255 complaints that require a veto power over Section 255 formal complaints? In the instant notice of proposed rulemaking, at 150, the Commission acknowledges "the likely complexity of many Section 255 complaints," proposing a longer time for responding to a Section 255 complaint than allowed for responding to other formal complaints. If the Commission regards a Section 255 complaint as more complex than its typical common carrier complaint cases, then the formal complaint procedure is even more essential -- not less -- to the enforcement of Section 255. 9. From a governmental regulatory point of view, there is no rational distinction to be made between typical common carrier and Section 255 complaints. Both involve telecommunications. Both involve the phenomenon of emerging telecommunications as we enter the 21st century. Both involve "technical" matters including dealing with new technology. Both involve "legal" issues including dealing with the Telecommunications Act of 1996 and its revolutionary impact. Both involve the potential for complex factual analyses and determinations. 10. From a governmental regulatory point of view, it is difficult to conceive of a Section 255 complaint, for which the Commission has Access Board guidelines and interpretations to assist it, that, administratively or conceptually, is more technical, has more difficult legal issues and requires more complex factual analyses and determinations, than many traditional common carrier proceedings. One can cite, as an illustrative example, this agency's sua sponte investigation and the ensuing multi-issue, multi-defendant 208 formal complaint proceeding reflected in Annual 1988 Access Tariff Filings, 4 FCC Rcd 3965 (Commission 1989) and Allnet Communication Services, Inc. v. National Exchange Carrier Association, 6 FCC Rcd 2608 (Commission 1991). 11. The trend in administrative agencies and in the courts is to resolve individual and industry conflicts by negotiated settlements. It is hoped and anticipated that as conflicts arise between and among telecommunications manufacturers, service providers and users under Section 255, negotiated settlements will play an important part in dissolving impasses and getting on with the business of providing greater telecommunications access to members of the impaired and disabled communities. 12. Negotiated settlements generally require a structure in which the contending parties must face the real world prospect of winning or losing their cause if they do not settle. Formal complaints under Section 208 have historically proven to be a structure that lends itself to negotiated settlements; and that structure should be fully available to facilitate Section 255 negotiated settlements as well. According to Thomas D. Watt, Associate Chief of the Enforcement Division of the Common Carrier Bureau, 40% of formal complaints under Section 208 during the period from 1990 to 1996 were resolved through negotiated settlements. Illustrative examples are settlements of formal complaints in the complex AT&T 56 kilobits per second digital dataphone service proceedings. US Sprint Communications Co. v. AT&T, 3 FCC Rcd 664 (Common Carrier Bureau 1988) and Mutual of Omaha Insurance Co. v. AT&T, 4 FCC Rcd 5362 (Common Carrier Bureau 1989), staff rulings on certain remaining issues in dispute jointly considered and affirmed, 9 FCC Rcd 4801 (Commission 1994). 13. If the Commission has the power to veto the use of a formal complaint under Section 208 to address concerns and issues under Section 255, the Commission can shut off the interplay of litigation by interested parties leading to resolution of issues either by decision or by settlement, and can gut meaningful participation by hearing-impaired citizens in the enforcement of Section 255. This is a power that Congress neither intended nor granted. II. Regulations concerning Section 255 complaints (Notice at 154) 14. The following comments are addressed to the notice of proposed rulemaking, at 154, which sets forth a number of proposals and inquiries regarding regulations for Section 255 complaints. A. Contents of complaints (First bulleted item, 154) 15. Present Rule 1.716 is suitable to govern informal complaints under Section 255. Present Rule 1.721, as streamlined, is suitable to govern formal complaints under Section 255. B. Grant of permission to file a formal complaint (Second bulleted item, 154) 16. For reasons stated in Part I of these comments, the Commission does not have the power to grant or withhold permission to file a formal complaint. 17. The existence or potential existence of multiple complaints by similarly-situated parties may be addressed by consolidation of complaints or by entertainment of properly structured class-action complaints. C. Single filing, with choice of procedures to be decided later (Third bulleted item, 154) 18. Proceeding from the premise of a single open-ended filing, the Commission proposes a grid of alternatives to the existing rules. Instead of the option to convert an informal complaint to a formal complaint the Commission suggests a deadline for the complainant to request a formal-complaint-type proceeding or to request alternative dispute resolution, and ultimately, the Commission would decide whether informal, formal or ADR would be followed. These proposals are infected with the same faulty notion that the FCC can or should preclude parties from choosing a formal complaint procedure. 19. The existing rules, as streamlined, are suitable for Section 255 purposes with regard to informal and formal complaint procedures, i.e., option to convert from informal to formal complaints dating back to the original filing. ADR or less formal measures to facilitate settlement should be implemented with such procedures as have been successful in securing a 40% settlement rate of formal 208 complaints described by Mr. Watt. D. Full disclosure of relevant facts and documents (Fourth bulleted item, 154) 20. The existing rules, as streamlined, are suitable to Section 255 purposes. E. Joinder of defendants (Fifth and sixth bulleted items, 154) 21. The existing rules for joinder of defendants should be broadened for Section 255 complaints as proposed. For Section 255 complaints, the rules should provide for joinder, upon the motion of a party or by the Commission on its own motion, of service providers and/or manufacturers having a common involvement in the subject of the complaint. F. Overall view regarding regulations 22. The existing common carrier rules for informal and formal complaints, as streamlined, are suitable for complaints arising under Section 255, except for the limited items referred to above, i.e., consolidating complaints by similarly-situated parties (subpart B) and broadening the provisions regarding joinder of defendants (subpart E). Respectfully submitted, Gene A. Bechtel Bechtel & Cole Chartered 1901 L. Street, N.W., Suite 250 Washington, D.C. 20036 Telephone 202-833-4190 Telecopier 202-833-3084 June 30, 1998