SECTION 165:55-22-5. Formal non-expedited dispute resolution

(a)   Commencement. This procedure is a formal proceeding for dispute resolution and will commence when a party ("complainant") files a complaint with the Court Clerk of the Commission and, on the same day, delivers a copy of the complaint either by hand delivery, certified mail, electronic mail or facsimile to the Director of the Public Utility Division, to the other party ("respondent") to the interconnection agreement from which the dispute arises, to the Office of General Counsel, and to the Office of the Attorney General. If facsimile is used, a certificate of service shall be provided.

(b)   Process. Unless otherwise ordered by the arbitrator, parties shall file with the Commission Court Clerk's office five (5) copies of pleadings. The complaint shall be in a consistent format approved by the Director of the Public Utility Division and shall include:

(1)   The name, address, telephone number, facsimile number of each party to the interconnection agreement, and the complainant's designated representative;

(2)   A description of the parties' efforts to resolve their differences by negotiation;

(3)   A detailed list of the precise issues in dispute, with a cross-reference to the area or areas of agreement applicable or pertaining to the issues in dispute; and

(4)   An identification of pertinent background facts and relevant law or rules applicable to each disputed issue.

(5)   The complainant's proposed solution to the dispute.

(c)   Arbitrator. Upon receipt of a dispute resolution complaint filed under this Section, an arbitrator shall be selected to act for the Commission, unless two or more of the Commissioners choose to hear the complaint en banc. The parties shall be notified of the Commission designated arbitrator, or of the Commissioners' decision to act as arbitrator themselves. The arbitrator may be advised on legal and technical issues by members of the Commission Staff. The Commission staff members selected to advise the arbitrator shall be determined by the Director of the Public Utility Division and shall be identified to the parties. Within five (5) days of the selection of the arbitrator being named, any challenge to the appointment shall be brought forth. No parties to the dispute resolution process may have ex parte discussions with the arbitrator regarding the complaint, except those persons designated by the Director of the Public Utility Division.

(d)   Response to complaint. The respondent shall file a response to the complaint within twenty (20) days after the filing of the complaint and shall serve a copy of the response on the complainant, the Office of the Attorney General, the Office of General Counsel, and to the Director of the Public Utility Division. The response shall specifically affirm or deny each allegation in the complaint. The response shall include the respondent's position on each issue in dispute, a cross-reference to the area or areas of the contract applicable or pertaining to the issue in dispute, and the respondent's proposed solution on each issue in dispute. In addition, the response also shall stipulate to any undisputed facts and identify relevant law or rules applicable to each disputed issue.

(e)   Reply to response to complaint. The complainant may file a reply within five (5) business days after the filing of the response to the complaint and serve a copy to the respondent, the Office of the Attorney General, the Office of General Counsel, and to the Director of the Public Utility Division. The reply shall be limited solely to new issues raised in the response to the complaint.

(f)   Notice and hearing. As soon as possible after his or her selection, the arbitrator shall schedule a prehearing conference with the parties to the arbitration. The arbitrator shall make arrangements for the hearing to address the complaint, which shall commence no later than fifty (50) days after filing of the complaint. The arbitrator shall notify the parties, not less than fifteen (15) days before the hearing of the date, time, and location of the hearing. The hearing shall be held in Oklahoma City unless otherwise ordered by the Commission.

(g)   Transcripts. The hearing shall be transcribed by a court reporter designated by the arbitrator. Copies of the transcript may be obtained from the designated court reporter at the expense of the requesting party.

(h)   Participation. Only parties to the interconnection agreement, the Commission Staff, or the Office of the Attorney General, may participate as parties in the dispute resolution process subject to this Subchapter, unless otherwise ordered by the Commission upon a showing of good cause.

(i)   Authority of the arbitrator. The arbitrator has broad discretion in conducting the dispute resolution proceeding. The arbitrator shall have the authority within the Commission to award remedies or relief deemed necessary by the arbitrator to resolve a dispute subject to the procedures established under this Subchapter.

(j)   Discovery. Parties may obtain discovery by submitting a discovery request consistent with the Commission's Rules of Practice, OAC 165:5, which include requests for inspection and production of documents, requests for admissions, and depositions by oral examination, as provided by the Commission rules and as allowed within the discretion of the arbitrator.

(k)   Pre-filed evidence and witness list. The arbitrator may require the parties to file a direct case, under the same deadline, and a joint issues list on or before the commencement of the hearing under the following guidelines:

(1)   The prepared direct case shall include all of the party's direct evidence, including written direct testimony of all its witnesses and all exhibits that the party intends to offer. The joint issues list shall identify all issues to be addressed, the witnesses who will be addressing each issue, and a short synopsis of each witness's position on each issue. Confidential information shall be treated in accordance with the Commission's Rules of Practice, OAC 165:5.

(2)   Each witness presenting written direct testimony shall be available for cross-examination by the other parties to the complaint. The arbitrator shall judge the credibility of each witness and the weight to be given his or her testimony based upon his or her response to cross-examination. If the arbitrator determines that a witness' responses are evasive or non-responsive to the questions asked, the arbitrator may disregard the witness' testimony on the basis of lack of credibility.

(3)   The arbitrator may ask clarifying questions at any point during the proceeding and may direct a party or witness to provide additional information as needed to fully develop the record of the proceeding. If a party fails to present information requested by the arbitrator, the arbitrator shall render a recommendation on the basis of the best information available from whatever source derived.

(4)   The arbitrator may require the parties to submit post-hearing briefs or written summaries of their positions. The arbitrator shall determine the filing deadline and any limitations on the length of such submissions.

(l)   Recommendation. Timelines and appeals to the arbitrator's recommendation shall be governed by the following guidelines:

(1)   The written recommendation of the arbitrator shall be filed with the Commission within fifteen (15) days after the close of the hearing and shall be faxed to all parties of record in the dispute resolution proceeding. The recommendation of the arbitrator shall be based upon the record of the dispute resolution hearing, and shall include a specific ruling on each of the disputed issues presented for resolution by the parties. The recommendation shall include a narrative report explaining the arbitrator's rationale for each of the rulings included in the final decision.

(2)   Within ten (10) days from the date of the arbitrator's recommendation is issued, any party may appeal the arbitrator's recommendation to the Commission en banc by the filing of a written appeal. The appellant shall serve, concurrent with filing, copies of the appeal and notice of hearing for the appeal to all parties of record and the arbitrator. The appeal shall be heard by the Commission en banc within ten (10) days of the filing of such appeal, unless the Commission orders otherwise.

(3)   With respect to the recommendation by the arbitrator, the Commission en banc may affirm, reverse, or modify the findings of fact or conclusions of law of the arbitrator based on the record, hold additional hearings, or may remand the cause to the arbitrator for further hearing. The Commission shall enter its order on the complaint no later than one hundred (100) days after the filing of the complaint, unless otherwise agreed to by the parties.

[Source: Added at 16 Ok Reg 2832, eff 7-15-99; Amended at 29 Ok Reg 1549, eff 7-12-12; Amended at 32 Ok Reg 828, eff 8-27-15]