After decades of handling formal complaints using no less than three different sets of rules, the FCC has finally adopted uniform procedures that generally apply to all formal complaints filed with the Commission. Alongside Chairman Ajit Pai, Commissioners Michael O’Rielly and Brendan Carr praised the measure to get formal complaints all under one roof. However, Commissioner Jessica Rosenworcel said that the measure was “bonkers” because in her view, the new rules impose barriers that inhibit consumers from being able to file complains about their carriers. News outlets have jumped on this bandwagon, mischaracterizing the new procedures as requiring all customers to pay a new fee just to file complaints against their carriers. Contrary to what you may have read, consumers can still file informal complaints through the FCC’s online complaint portal without paying anything, and companies must respond to informal complaints within 30 days using the FCC’s clunky web interface, which is completely intuitive and user friendly in a Rube Goldberg-esq sort of way, but without the fun and entertainment factor. The new rules only apply to formal complaints filed with the FCC, and the FCC’s informal complaint procedures remain unchanged.
But first, a little history lesson is in order before we dive into the details of the new rules: The FCC’s first complaint rules were adopted in 1978 to handle pole attachment complaints, which did not provide procedures for, among other things: joint statements, discovery, or status conferences. Then, in 1997, the FCC adopted rules for formal complaints filed under Section 208 of the Communications Act, which are generally complaints against common carriers. The FCC modified its Section 208 formal complaint rules in 2001 regarding procedures related to answers, replies, and supplemental damages complaints. Finally, in 2011, the FCC adopted rules governing formal complaints filed under Sections 255, 717, and 718 of the Act regarding violations of the FCC’s disability access rules. The FCC’s disability access complaint rules were pretty similar to the rules for Section 208 complaints, but without the ability to speed things up through the accelerated docket procedures.
The FCC decided to use its existing Section 208 complaint rules as a model for its uniform formal complaint procedural rules. Here some highlights of the new rules:
- Uniform Filing Deadlines – Answers to formal complaints are due 30 days after the filing of the complaint. Previously, answers were due 20 days after service of the complaint, which often led to mad scrabbles and ruined weekend/vacation plans to respond to complaints that could often run into the hundreds, if not thousands, of pages.
- Information Designation – All complaints now require the complaint, answer, and reply to include a description of individuals with firsthand knowledge of facts and documents relevant to the allegations in the pleadings.
- Discovery – Under the old complaint rules, parties in Section 208 and disability complaint proceedings could only issue interrogatories with the FCC’s permission. Parties can now issue interrogatories as a matter of right, with a complainant able to issue up to ten interrogatories with its complaint, a defendant able to issue up to ten interrogatories with its answer, and the complainant able to issue an additional five interrogatories with its reply. However, whether the FCC will actually require a party to answer an interrogatory is a different question altogether. The FCC can also allow other discovery, such as depositions and document production, if staff believes such discovery to be appropriate.
- Proposed Findings of Fact and Conclusions of Law – The FCC eliminated the requirement that the complaint, answer, and reply include proposed findings of fact and conclusions of law. That change matches what is currently happening in complaint proceedings as the FCC generally ignores most of the parties’ proposals in the first place.
- Section 208 Pre-Complaint Procedures – Section 208 are subject to a five-month statutory deadline for the FCC to conclude its investigation regarding the lawfulness of a carrier’s charges in its tariff (though the damages phase of the case can come after the initial liability determination). Due to the compressed time frame for the FCC to issue a decision for these types of cases, the FCC has typically required parties to narrow the factual and legal issues in dispute, exchange relevant documents and discovery, and discuss case management issues before the complaint was actually filed. Those requirements are now codified in the new rules. Also, to give the FCC and the parties in the complaint proceeding enough time to address all the issues and for the FCC to issue a decision on liability, damages, which are not required to be decided by the five-month deadline, can be decided after the FCC liability decision is issued.
- Motions to Dismiss – Although motions to dismiss are rarely granted, parties are now expressly permitted to file such motions.
- Miscellaneous – Other rules that were adopted include a requirement that all formal complaints include a certification regarding pre-filing settlement efforts; the availability of staff-supervised mediation services before and after the filing of the formal complaint; the requirement for a status conference to be held after the formal complaint is filed; and the extension of the accelerated docket provision to pole attachment complaints.
- Shot Clocks – Previously, the timeframes for the FCC to decide formal complaints were all over the map ranging anywhere from six months to well over a year. The FCC has now adopted a 270-day shot clock for resolving all complaints, except for Section 208 complaints subject to the five-month statutory deadline in Section 208(b)(1). In practice though, the FCC can extend the 270 days by suspending the proceedings, which stops the clock until the proceedings resume.
The FCC’s new rules are a welcome change to the disjointed three-part formal complaint system previously in place. If customers are mad at their carrier, they can always get a little satisfaction by filing an informal complaint for free through FCC’s online Consumer Complaint Center. Putting carriers through the painful process of navigating the online informal complaint response system is often punishment enough to put them back on the straight and narrow. Plus, if enough consumers complain about the same thing the Enforcement Bureau will often get involved and investigate. However, if consumers want to file a formal complaint on their own, which is akin to filing a complaint in court, they’re going to have to pony up the $225 filing fee, which is less than the current $400 fee for filing a civil complaint with the U.S. District Court for the District of Columbia. We generally don’t advise folks to go it alone when filing formal complaints with the FCC lest they fall victim to Abraham Lincoln’s old adage regarding self-representation.