26 Del. Admin. Code § 4000-1.0
Section 251(c) of the federal Communications Act, as added by the Telecommunications Act of 1996, Pub. L. No. 104-104, requires an incumbent local exchange carrier (such as Bell Atlantic-Delaware, Inc.) and a requesting telecommunications carrier to negotiate about the terms for interconnecting their networks and the prices and conditions governing the purchase and use of the incumbent's network elements and services. 47 U.S.C. § 251(c)(1). Another new section added by the 1996 Act charges this Commission with the responsibility, upon request, to mediate or arbitrate these negotiations between the potential competitors. 47 U.S.C. § 252(b)-(d). Finally, the Act now also commands the Commission, within abbreviated time periods, to review, approve, or reject any agreement which may emerge from the above negotiations, as well as any "statement of terms and conditions" which Bell Atlantic-Delaware, Inc., as the incumbent carrier, might unilaterally file. 47 U.S.C. § 252(e), (f).
The Commission understands that negotiations, as contemplated by the federal Act, are already underway and that more requests for bargaining may be on the horizon. Because the window for demanding arbitration now moves open,1 the Commission hereby adopts the following guidelines to govern the arbitration and review processes under the federal Act.
Some may say that the 1996 Telecommunications Act directs that the negotiation and arbitration be essentially private bilateral mechanisms between the two carriers, with wider participation by other persons coming, if at all, only during the subsequent review of the delivered agreement. However, the Commission believes that the Act recognizes the public interest should be a factor throughout, considered both during the earlier arbitration endeavors, as well as any final review. See, e.g., 47 U.S.C. §§ 251(d)(3), 252(e)(3), 252(f)(2). Particularly given the short time frames for its review of interconnection agreements, the Commission believes that it should enact guidelines for arbitration, which will not only assist in the resolution of the carriers' disputes, but allow contemporaneous consideration of the public interest. Thus, while these guidelines do not make the arbitration process a fully-open proceeding, they do allow for consideration of the public interest in several linked ways.
First, the guidelines permit the Public Advocate to be part of the arbitration process. Two reasons support this early participation. Initially, under state law, the Public Advocate has a right to appear in any matter or proceeding over which the Commission has jurisdiction. 29 Del. C. §§ 8828(1), 8829(a)-(c). Moreover, the Advocate, as an active participant during arbitration, may be able to bring to the arbiter's attention any actual or potential violations of state laws, regulations, or standards. With the two competing carriers eyes most likely focused on each's business interests, the participation of the Advocate will ensure that, in particular, laws or rules aimed at protecting the end-using consumer will not be overlooked.
Second, although the guidelines envision Commission Staff primarily serving as arbiters and adjuncts, these roles should not be so narrowly viewed as to bar the arbitrator from also acting to protect the public interest and the rights of consumers. Thus, the arbiters remain free to raise, entertain, and resolve questions of the public interest during the arbitration process.
Third, the guidelines allow the Commission Staff, independent of those members appointed as arbiters or adjuncts, to become an active party in any particular arbitration if the Staff, upon review, believes that significant issues concerning the public interest may arise and might not be adequately explored. In particular, the Commission Staff may become an active player in an arbitration if the Public Advocate decides not to participate and Staff believes that, without "third-party" participation, the public interest might be undervalued.
The federal Act requires arbitration by the Commission but gives few clues about what procedures are required. So too, it compels review of agreements by the Commission but, again, sets few direct procedural benchmarks. However, neither the arbitration, nor the review process, dovetails easily with the procedural structure set forth in the Public Utility Act (26 Del.C. ch. I) or the state's Administrative Procedures Act. 29 Del.C. ch. 101. For example, both the PUA and APA envision Superior Court review of Commission decision-making. In contrast, the federal Act specifically bars such state court review, granting judicial oversight to the federal courts instead. 47 U.S.C. § 252(e)(4), (6). Moreover, the time limitations imposed on the Commission under the federal Act do not, in some instances, provide sufficient leeway to allow for publication of public notice and the convening of formal public evidentiary hearings as envisioned by the APA for price-fixing and rate-making rulings. Consequently, the Commission, in these guidelines, has attempted to craft procedural rules consistent with the spirit of the APA, even though they may be inconsistent with some of the specifics of the PUA and APA. The Commission believes that the General Assembly granted it such authority to depart from the strictures of the APA when it authorized the Commission to undertake "deregulation" of telecommunications services. 26 Del.C. § 703(3).2
These guidelines will apply to negotiations and mediations conducted after the effective date of the guidelines. In addition, these guidelines shall apply to any arbitrations and reviews instituted after the effective date of the guidelines. Finally, these guidelines may be applied, consistent with justice and fairness, to any arbitrations and reviews pending at the time the guidelines become effective. Experience using these guidelines in the near future will assist the Commission in developing final administrative rules.
26 Del. Admin. Code § 4000-1.0