FERC Filings
ELECTRIC INDUSTRY DISPUTE RESOLUTION WORKING GROUP RECOMMENDATIONS AND PROPOSED PROCEDURES FOR DISPUTE RESOLUTION
COMPLAINT PROCEDURES
Initiation of Complaint Proceedings
An aggrieved party may initiate complaint proceedings by filing a complaint with the Commission. For the duration of the fifteen month mediation pilot program the complaint must be filed within 120 days of the conclusion of mediation or other ADR process, together with a mediator’s statement. The complainant may include in its complaint a request that the Commission adopt specific formal procedures for the resolution of the complaint. The complainant must serve the complaint on the respondent by same-day or overnight delivery. Complaints may be amended pursuant to existing rules.
The respondent may file with the Commission, not later than three business days after receipt of the complaint, a statement concerning the specific formal procedure that the Commission should adopt to resolve the complaint.
Not later than seven days after the filing of the complaint, or three days after a respondent's statement concerning track selection, DDR shall issue an Order and Notice for publication in the Federal Register: (1) stating the formal procedure that the parties should employ to resolve the dispute; and, (2) setting the deadline for motions to intervene, protests and answers.
Answers to complaints seeking to change filed rates, terms and conditions of service shall be filed within 30 days of the filing of the complaint. Answers to all other complaints shall be filed within 21 days of the filing of the complaint. If DDR refers a complaint to Track 3 (for summary disposition by an ALJ), then the requirement for filing an answer should be stayed.
In determining which procedure to employ, DDR should consider the issues in dispute and select the most appropriate track for resolution of the dispute consistent with the following:
The most expeditious procedure;
The extent to which the dispute involves disputed facts;
The extent to which the dispute implicates Commission policy;
The extent to which the dispute has implications for other parties that justify providing an opportunity for third parties to intervene in the proceeding;
The extent to which expedited relief is necessary to avoid or minimize irreparable harm; and,
The need to effectively and efficiently employ the resources of the Commission and the parties.
The formal procedures that the DDR may order are as follows:
Assignment to an Office Director who shall prepare a Letter Order, for issuance by the Commission where required (Track 1);
Assignment to ADR (Track 2);
Assignment to an Administrative Law Judge for summary judgment proceedings (Track 3);
Assignment to an Administrative Law Judge for expedited or other hearing (Tracks 4 and 5, respectively); or,
Referral to the Commission (Track 6).
Where a complaint raises separable issues for which different tracks are appropriate, DDR may split the case and assign or refer its components to multiple tracks.
The decision of the DDR concerning the formal procedure that is used to resolve a complaint is an interlocutory order that may be appealed to the Commission pursuant to 18 C.F.R. § 385.715. In addition, the Commission may, sua sponte, adopt a track different from the track specified in the DDR Order. If the Commission elects to revise the track, it will endeavor to do so within the time limits provided in 18 C.F.R. § 385.715(b).
Dispute Resolution Tracks
Track One: Letter Order
This track is intended for disputes that do not require trial-type hearing procedures or involve policy disputes requiring direct Commission determination. These disputes will be assigned to an Office Director and shall be resolved by the issuance of a Letter Order not later than 40 days after the complaint is filed. Such Letter Orders shall be published and are available as persuasive authority, but not binding as precedent, other than as to the parties to the dispute.
Either party may file a request for rehearing of a Letter Order. Consistent with 18 C.F.R. § 385.713(e), a request for rehearing does not stay the order unless otherwise directed by the Commission.
Track Two: ADR
The Working Group believes that alternative dispute resolution mechanisms can be an important part of the Commission’s dispute resolution processes. However, the Working Group does not endorse any particular ADR mechanism. The Working Group anticipates that individual parties will address the advantages and disadvantages, as well as any appropriate limitations, of the various mechanisms in any comments filed with the Commission. ADR mechanisms might include the following:
Neutral evaluation;
Fact finding and audits;
Mediation;
Arbitration; or,
Settlement discussions among the parties.
Track Three: Assignment to an ALJ for Summary Disposition
This track is intended for cases that: (1) involve only the application of clear, established rules; (2) do not present issues of policy or broad industry impact that warrant Commission involvement; and (3) involve no genuine dispute of material fact.
Cross motions for summary judgment shall be filed within 21 days of the issuance of a DDR Order assigning the case to Track 3 and responses to the cross motions within 15 days after the filing of the initial motions, or such other schedule as the ALJ may order.
The Presiding Judge shall issue a Recommended Decision within 60 days after the issuance of the order establishing the dates for the filing of cross motions. The order shall either resolve the matter by summary judgment or shall define the extent to which the issues cannot be resolved by summary judgment. If the Presiding Judge cannot resolve all issues by summary judgment the Judge shall establish procedures as set out in Track 4 or Track 5, below.
Since there is no initial decision the right to file briefs on and opposing exceptions to the Recommended Decision is at the discretion of the Commission. A Recommended Decision becomes a final decision of the Commission unless the Commission modifies the order or issues a tolling order within 14 days after the issuance of the Recommended Decision. A tolling order delays the effective date of the Recommended Decision for 14 days.
The Working Group was unable to agree whether discovery is appropriate under this track.
This track does not preclude summary disposition within other tracks.
Track 4: Assignment to an ALJ for Expedited Hearing
This track is intended for cases that: (1) involve only the application of clear, established rules; (2) do not present issues of policy or broad industry impact that warrant Commission involvement; (3) involve limited factual disputes; and, (4) present a need for expedited procedures to prevent competitive harm.
The procedural schedule shall be as follows, subject to modification by the Presiding Judge for good cause: Direct testimony 21 days after issuance of procedural schedule
Answering testimony and Staff testimony 21 days after filing of direct testimony
Rebuttal to Answering and Staff testimony 14 days after filing of answering testimony
Hearing (if ordered) 7 days after filing of rebuttal testimony
Initial briefs 10 days after conclusion of hearing
Reply briefs 7 days after filing of initial briefs
Recommended Decision 21 days after filing of reply briefs
Subject to modification or limitation by the Presiding Judge for good cause, discovery suited to the limited issues in dispute will be available. Discovery will be on a rolling, best efforts basis, with response times of 10 days through the filing of Answering testimony, then 7 days through the filing of Rebuttal testimony, then 4 days for requests served within 3 days after the filing of Rebuttal testimony.
A Recommended Decision becomes final pursuant to the procedures set out in Track 3 above.
Track 5: Assignment to ALJ for Hearing
This Track is intended for factual disputes which are suitable for assignment to an ALJ and which do not meet the criteria for Track 4.
The Presiding Judge shall hold a prehearing conference not later than 20 days after issuance of the hearing order, at which a procedural schedule will be established.
The procedural schedule will provide for the issuance of an Initial Decision. Briefs on and opposing exceptions to the Initial Decision may be filed as provided in 18 C.F.R. § 385.711.
Track 6: Referral to the Commission
Policy disputes that need to be resolved directly by the Commission should be referred to the Commission. The Commission must issue an order addressing any referred matter within 60 days. Unless the case involves issues of great complexity, that order should address the merits of the case. If necessary, the Commission may issue an order taking other appropriate action to resolve the controversy, but must include a timetable for final resolution. In all cases the Commission shall render a decision within 180 days as contemplated in Section 206(b) of the Federal Power Act.
Preliminary Injunctive Relief
The Working Group has not been able to reach agreement as to whether the Commission has the authority to order interim relief akin to preliminary injunctive relief. We recommend that the Commission evaluate whether it has such authority. The Working Group agrees that if the Commission concludes that it has such authority, it should employ the following factors in determining whether to order preliminary injunctive or similar interim relief:
Likelihood of success on the merits;
Irreparable injury to the complainant if the preliminary relief is not granted. (In the context of Commission proceedings, this means injury not compensable through refunds or through any damages that the Commission may order.);
Whether this injury outweighs harm to the respondent or other parties to the proceeding if the preliminary relief is granted; and,
Other public interest considerations, including matters such as harm to downstream customers and end users, impact on the reliability of the transmission system and the public interest in fair competition.
If the complainant is requesting preliminary injunctive-type relief, either party may obtain discovery, limited to those matters that are necessary to make a showing or rebuttal regarding the need for preliminary relief. Answers to such discovery requests must be provided within 15 days of the date discovery is served or 5 days after the answer is filed, whichever is later. Discovery disputes, including disputes over whether the discovery requests are limited as set out above, will be resolved by an Administrative Law Judge designated by the Chief Judge.
A ruling addressing the request for preliminary injunctive-type relief would be issued within 60 days after the filing of the complaint.
Request for Rehearing
The Working Group recommends that for decisions issued under Tracks 1, 3 and 4 the Commission modify 18 C.F.R. § 385.713(d)(1) to permit for good cause answers to requests for rehearing and rebuttals thereto. The Working Group makes this recommendation in light of the expedited nature of these tracks.
June 23, 1998