AUTHORITY: Implementing Section 252 of the Communications Act of 1934 (47 U.S.C. 252) and Section 10-101 of the Public Utilities Act and authorized by Section 10-101 of the Public Utilities Act [220 ILCS 5/10-101] and Section 25-101 of the Electronic Commerce Security Act [5 ILCS 175/25-101].

SOURCE: Adopted at 21 Ill. Reg. 7129, effective June 1, 1997; emergency amendment at 24 Ill. Reg. 7881, effective May 22, 2000, for a maximum of 150 days; amended at 24 Ill. Reg. 15934, effective October 15, 2000.

SUBPART A: GENERAL PROVISIONS

 

Section 762.10  Procedure Governed

 

This Part governs practice and procedure before the Illinois Commerce Commission (Commission) in the approval or rejection of arbitrated agreements required by Sections 252(e)(1) and 252(e)(2)(B) of the Communications Act of 1934 (47 U.S.C. 252).

 

Section 762.20  Deviation from this Part

 

To the extent permitted by law, including the provisions of Article 10 of the Illinois Administrative Procedure Act [5 ILCS 100 Art 10], any provision of this Part may be waived, suspended or modified by the Commission or an Examiner, either upon their own motion or upon motion by any person.

 

Section 762.30  Definitions

 

Unless otherwise defined, the following terms as used in this Part shall have the following meanings:

 

            "Commissioner" means a member of the Commission.

 

            "Documents" means petitions, amended and supplemental petitions, motions, responses, replies, notices, proposed decisions, exceptions to Hearing Examiners' proposed orders, comments, drafts or suggested forms of order, and similar writings.

 

            "e-Docket" means a Web based electronic filing system that allows electronic filing, management, and access to electronic records that make up case files.

 

            "Electronic" includes electrical, digital, magnetic, optical, electromagnetic, or any other form of technology that entails capabilities similar to these technologies.  [220 ILCS 5/3-122]

 

            "Electronic document" means a pleading or a document transmitted by electronic means to the Commission with an electronic signature attached.

 

            "Electronic record" means a record generated, communicated, received or stored by electronic means for use in an information system or for transmission from one information system to another.  [5 ILCS 175/5-105]

 

            "Electronic signature" means a signature in electronic form issued by the Commission pursuant to Section 762.1020 and consisting of a user I.D. and password attached to or logically associated with an electronic document.

 

            "E-mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.  [815 ILCS 511/5]

 

            "Hearing Examiner" means a person employed by the Commission under Section 2-106 of the Public Utilities Act, who is assigned to conduct arbitration proceedings pursuant to Section 252 of the Communications Act of 1934 (47 USC 252).  A Commissioner may also serve as a Hearing Examiner for purposes of this Part.

 

            "Intervenor" means a person who, upon written petition, is permitted to intervene in any proceeding under this Part.

 

            "Party" means those persons who submit to the Commission for approval an arbitrated agreement pursuant to Section 252(e) of the Communications Act of 1934 (47 USC 252); or, a person allowed by the Commission or Hearing Examiner to intervene in a proceeding.  Staff is not a party but shall have the specific rights and duties of parties as enumerated in this Part.

 

            "Person" means any individual, partnership, corporation, governmental body or unincorporated association.

 

            "Staff" or "Commission Staff" means individuals employed by the Commission.  For purposes of this Part, a Hearing Examiner is not considered a member of the Commission Staff.

 

(Source:  Amended at 24 Ill. Reg. 15934, effective October 15, 2000)

 

Section 762.40  Authority of Hearing Examiner

 

a)         The Hearing Examiner shall have authority over the conduct of a proceeding under this Part and the responsibility for submission of the matter to the Commission for decision.  The Hearing Examiner shall have those duties and powers necessary to these ends, including the following:

 

1)         To conduct hearings and pre-decisional conferences;

 

2)         To grant or deny Petitions to Intervene;

 

3)         To conduct discovery of the parties;

 

4)         To authorize the parties to conduct discovery and to supervise all discovery so authorized;

 

5)         To direct parties to serve testimony and exhibits and establish a date certain for service;

 

6)         To administer oaths and affirmations;

 

7)         To ensure that the proceedings are conducted in a full, fair and impartial manner, that order is maintained and that unnecessary delay is avoided in the disposition of the proceedings;

 

8)         To examine witnesses and allow the examination of an adverse party or agent;

 

9)         To rule upon all matters which do not result in the final determination of the proceeding;

 

10)         To call upon any party at any stage of the proceeding to produce further information that is material and relevant to any issue;

 

11)         To issue recommended decisions pursuant to Section 762.410 of this Part;

 

12)         To issue protective orders in accordance with 83 Ill. Adm. Code 762.220; and

 

13)         To have any proceeding transcribed by a reporter appointed by the Commission.

 

b)         Any party who fails to comply with an order of the Hearing Examiner may be limited in its presentation of information during the proceeding.

 

Section 762.50  Federal Preemption of State Court Review

 

No State court shall have jurisdiction to review the action of the Commission in approving or rejecting an agreement under Section 252 of the Communications Act of 1934.

 

Section 762.60  Failure to Act

 

Pursuant to Section 252(e)(4) of the Communications Act of 1934, if the Commission does not act to approve or reject the agreement within 30 days after submission by the parties of an agreement adopted by arbitration under Section 252(b) of the Communications Act of 1934, the agreement shall be deemed approved.

SUBPART B: FORM, FILING AND SERVICE OF DOCUMENTS

 

Section 762.100  Communications to the Commission

 

All paper documents to be filed with or submitted to the Commission shall be addressed to:  The Chief Clerk, Illinois Commerce Commission, 527 East Capitol Avenue, Springfield, Illinois 62701.  All formal paper communications and documents are deemed to be officially filed or submitted only when delivered to the principal office of the Commission.  The Chief Clerk is the official custodian of all Commission records.

 

(Source:  Amended at 24 Ill. Reg. 15934, effective October 15, 2000)

 

Section 762.105  Form of Pleadings and Documents

 

a)         All pleadings and documents filed with the Commission shall be typewritten or printed on white paper 8½ inches by 11 inches or capable of being printed on white paper 8½ inches by 11 inches and shall have inside text margins of not less than one inch. An optional heading consisting of the docket number and document title shall be placed in the upper right-hand corner and have a top margin of not less than ¾ inch.  Page numbers shall be centered and have a bottom margin of not less than ½ inch.  Line numbers shall have a left-hand margin of not less than ½ inch.  All exhibits of a documentary character shall, whenever practical, conform to these requirements of size and margin. The impression shall be on one side of the paper only and shall be double spaced; footnotes may be single spaced and quotations may be single spaced and indented.

 

b)         All pleadings or other documents shall be composed in either Arial or Times New Roman font, black type on white background.  The text of pleadings or documents shall be at least 12-point.  Footnotes shall be at least 10-point. Other material not in the body of the text, such as financial data schedules and exhibits, shall be at least 8-point.  All exhibits of a documentary character shall, whenever practical, conform to these requirements.

 

c)         Reproductions may be by any process, provided that all copies are clear and permanently legible.

 

d)         Testimony prepared for the purpose of being entered into evidence shall include line numbers on the left-hand side of each page of text.  Testimony shall include continuous line numbers.  Schedules, attachments, and exhibits of a numerical or documentary nature shall, whenever practical, conform to these requirements.

 

(Source:  Added at 24 Ill. Reg. 15934, effective October 15, 2000)

 

Section 762.110  Submission for Commission Approval of an Arbitrated Agreement

 

All arbitrated agreements submitted under this Part shall be accompanied by written comments and draft proposed decisions supporting either approval or rejection of the agreement.

 

Section 762.120  Filing of Comments

 

a)         For proceedings subject to this Part that were initiated prior to January 1, 2000, an original and eight paper copies of all comments and draft proposed decisions shall be filed with the Commission.  Comments shall be concise, and, if in excess of 20 pages, excluding appendices, shall contain:

 

1)         A table of contents;

 

2)         A short statement of the case;

 

3)         A summary of the position of the party filing; and

 

4)         Argument.

 

b)         For proceedings subject to this Part that were initiated after January 1, 2000, one original document shall be filed with the Commission, subject to the content requirements of subsection (a).

 

(Source:  Amended at 24 Ill. Reg. 15934, effective October 15, 2000)

 

Section 762.130  Service

 

a)         All documents shall be deemed filed on the date received by the Chief Clerk of the Commission.  Service on the Chief Clerk of the Commission cannot be made by telephone facsimile.  All documents must be served upon the parties and intervenors to the proceeding on the day they are filed with the Chief Clerk of the Commission.

 

b)         Proof of service of any paper shall be by certificate of attorney, acknowledgement of receipt, or affidavit.

SUBPART C: PRE-DECISIONAL PROCEDURE

 

Section 762.200  Pre-decisional Conferences

 

Upon direction of the Commission or on his or her own motion, the Hearing Examiner may request all parties to attend a pre-decisional conference.  Notice of the pre-decisional conference shall be given in writing, telephone, e-mail, or telephone facsimile no later than 24 hours before the pre-decisional conference.  Such a conference may be held for any purpose, including, but not limited to:

 

a)         Scheduling;

 

b)         Identification and simplification of issues;

 

c)         Amendments to documents; and

 

d)         Such other matters as may aid in the simplification of the issues and disposition of the proceeding.

 

(Source:  Amended at 24 Ill. Reg. 15934, effective October 15, 2000)

 

Section 762.205  Schedule of Pre-decisional Procedure

 

In the absence of a schedule established at a Section 762.200 pre-decisional conference, all other parties to the proceeding shall file and serve comments and draft proposed decisions twelve days from the filing of the petition for approval of the arbitrated agreement.

 

Section 762.210  Intervention

 

a)         Petitions to intervene shall contain:

 

1)         The name, address, telephone number, and unless the party has no facsimile number or e-mail address either directly or through its attorney, facsimile number and e-mail address, of the petitioner seeking leave to intervene;

 

2)         A plain and concise statement of the nature of such petitioner's interest;

 

3)         A prayer for leave to intervene and be treated as a party to the proceeding.

 

b)         While a petition for leave to intervene is pending, the Hearing Examiner, in his or her discretion, may permit the petitioner to participate in the proceeding.

 

(Source:  Amended at 24 Ill. Reg. 15934, effective October 15, 2000)

 

Section 762.220  Protective Orders

 

a)         At any time during the pendency of a proceeding, the Commission or the Hearing Examiner may, on the motion of any person, enter an order to protect the confidential, proprietary or trade secret nature of any data, information or studies.

 

b)         A person submitting a motion for a protective order shall specify the proposed expiration date for the proprietary status of the data, information or studies.  The proposed expiration date shall be no more than five years from the date of submission.  However, the proposed expiration date may exceed five years upon a showing of good cause. If no date is specified, the proposed expiration date for the proprietary status of the data, information or studies shall be two years from the date of submission.

 

c)         A document submitted and marked as proprietary shall be afforded proprietary treatment pending the timely submission of a motion to protect the confidential, proprietary or trade secret nature of that document and a ruling on that motion by the Commission or the Hearing Examiner.

 

d)         A public redacted version of each document submitted pursuant to this Section must also be submitted with the proprietary version.

 

(Source:  Amended at 24 Ill. Reg. 15934, effective October 15, 2000)

SUBPART D: DECISIONAL PROCEDURE

 

Section 762.300  Disqualification of Hearing Examiner

 

a)         A Hearing Examiner assigned to a proceeding may, upon written request to and approval of the Chief Hearing Examiner, recuse himself or herself from the proceeding.

 

b)         Whenever any party believes a Hearing Examiner for any reason should be disqualified from conducting, or continuing to conduct, a proceeding assigned to him or her, such party may file a motion to disqualify the Hearing Examiner, setting forth by affidavit the alleged grounds for disqualification.  The Hearing Examiner shall have 5 days after filing of the motion within which to enter a written ruling thereon.  A copy of such ruling shall be served upon all parties.

 

c)         Any ruling by a Hearing Examiner denying a request for recusal under this Section may be reviewed by the Commission.  Review shall be sought no more than 3 days from the denial of the motion to recuse or disqualify. The party seeking review of the ruling shall file with the Chief Clerk a verified petition, together with any offer of proof, and shall serve a copy of the petition upon the Hearing Examiner and all parties to the proceeding.  Other parties and the staff representative may file responses within 3 days after the filing of the petition. The Hearing Examiner shall have 3 days from the filing of the petition within which to file a report to the Commission with the Chief Clerk, who shall serve copies of such report on the parties and the staff representative.

 

Section 762.310  Consolidation and Severance

 

a)         Where not inconsistent with the requirements of the Communications Act of 1934, the Commission or Hearing Examiner may, to the extent practical, order the consolidation of two or more proceedings under Section 252(a) of the Communications Act of 1934 in order to reduce administrative burdens on telecommunications carriers and the Commission in carrying out its responsibilities under Section 252 of the Communications Act of 1934.

 

b)         Where not inconsistent with the requirements of the Communications Act of 1934, the Commission or Hearing Examiner may, to the extent practical, order the severance of two or more proceedings previously consolidated under subsection (a) of this Section in order to reduce administrative burdens on telecommunications carriers and the Commission in carrying out its responsibilities under Section 252 of the Communications Act of 1934 or order the severance of issues from a proceeding in those instances where the issues need not be decided within the time limit set in the Communications Act of 1934 for the Commission's decision on an agreement adopted by arbitration.

 

Section 762.320  Ex Parte Communications

 

a)         The provisions of Section 10-60 of the Illinois Administrative Procedure Act [5 ILCS 100/10-60] shall apply in full to Commission proceedings that are subject to this Part.  The provisions of Section 10-60 shall not apply, however, to communications between Commission employees who are engaged in investigatory or advocacy functions and other parties to the proceeding, provided that such Commission employees are still prohibited from communicating on an ex parte basis, as designated in Section 10-60, directly or indirectly, with members of the Commission, any Hearing Examiner in the proceeding, or any Commission employee who is or may reasonably be expected to be involved in the decisional process of the proceeding.

 

b)         Any Commissioner, Hearing Examiner, or other Commission employee who is or may reasonably be expected to be involved in the decisional process of a proceeding, who receives, or who makes or knowingly causes to be made, a communication prohibited by Section 10-60 of the Illinois Administrative Procedure Act as modified by Section 10-103 of the Public Utilities Act [220 ILCS 5/10-103], shall place on the public record of the proceeding:

 

1)         all such written communications;

 

2)         memoranda stating the substance of all such oral communications; and

 

3)         all written responses and memoranda stating the substance of all oral responses to the materials described in subsections (b)(1) and (2). [220 ILCS 5/10-103]

 

c)         The material specified in subsection (b) shall be disclosed to the parties of record by service by hand delivery, overnight mail or courier service or telephone facsimile on all parties to the proceeding.

SUBPART E: POST-COMMENT PROCEDURE

 

Section 762.410  Hearing Examiner's Proposed Decision

 

The Hearing Examiner presiding shall, after the receipt of Initial comments, prepare a proposed decision, including a statement of findings and conclusions and the reasons or basis therefor, on all the material issues presented.  Such proposed decision shall be served by the Chief Clerk of the Commission on all parties to the proceeding.

 

Section 762.420  Exceptions

 

a)         The parties may file Exceptions to the Hearing Examiner's proposed decision.  Unless otherwise ordered by the Hearing Examiner or the Commission, briefs on exceptions are due no later than 5 days after service of the Hearing Examiner's proposed decision. Replies to Exceptions shall be due no later than 8 days after service of the Hearing Examiner's proposed decision.

 

b)         Exceptions with respect to statements, findings of fact or rulings of law must be specific and must be stated and numbered separately in the brief.  When exception is taken to a statement or finding of fact, a suggested replacement statement or finding must be incorporated. Exceptions may contain written arguments in support of the position taken by the party or staff representative filing such exceptions.

 

Section 762.430  Oral Argument

 

The Commission, upon its own motion, may hear oral argument from the parties.

 

Section 762.440  Additional Comments

 

Before issuance of a final order by the Commission, the Hearing Examiner may, on his or her own motion or when directed by the Commission, seek additional written comments from the parties.

SUBPART F: ELECTRONIC FILING

 

Section 762.1000  Overview of Electronic Filing

 

One of the stated purposes of the Electronic Commerce Security Act is to facilitate electronic filing of documents with State and local government agencies, and promote efficient delivery of government services by means of reliable electronic records. [5 ILCS 175/1-105(3)] The Electronic Commerce Security Act authorizes State agencies to send and receive electronic records and electronic signatures. In addition, the Commission has the authority over its process and proceedings pursuant to Section 10-101 of the Public Utilities Act [220 ILCS 5/10-101]. To that end, the Commission is committed to facilitating the filing, distributing, and accessing of documents electronically, subject to this Part, through its electronic filing system, "e-Docket". Any person may file a document in an electronic format. However, nothing in this Part should be construed to require any person to file any document in an electronic format.

 

(Source:  Added at 24 Ill. Reg. 15934, effective October 15, 2000)

 

Section 762.1010  Acceptable Formats

 

a)         All electronic documents submitted to the Commission via e-Docket shall be in one of the following formats:

 

1)         Microsoft Word for windows, version 6.0 or greater;

 

2)         Corel WordPerfect for Windows, version 6.0 or greater;

 

3)         Microsoft Excel for Windows, version 4.0 or greater;

 

4)         Lotus 1-2-3 for Windows, version 4.0 or greater;

 

5)         ASCII Text; or

 

6)         Adobe Acrobat Portable Document Format (PDF) version 2.0 or greater.

 

b)         All e-Docket electronic records will be stored by the Commission in Adobe Acrobat PDF. Electronic documents not submitted in PDF will be converted to PDF by the Commission.

 

c)         The Commission encourages persons to submit electronic documents in PDF.

 

(Source:  Added at 24 Ill. Reg. 15934, effective October 15, 2000)

 

Section 762.1020  e-Docket Accounts

 

a)         Each person seeking to file electronic documents must have an active e-Docket account.

 

b)         The application for an e-Docket account is available on e-Docket on the Commission's Web site or can be obtained by calling or e-mailing the e-Docket help desk.

 

c)         The e-Docket application requires the following information:

 

1)         First name and last name;

 

2)         Primary mailing address and phone number;

 

3)         Preferred user name;

 

4)         Password;

 

5)         Challenge question and answer; and

 

6)         Notarized signature.

 

d)         Applications must be hand-delivered or mailed to the e-Docket help desk.

 

e)         The user is responsible for keeping confidential the user I.D. and password. A user I.D. must be at least four characters in length and must be unique. Passwords must be at least five characters in length. Periodically passwords will expire and users will be given advance notice and requested to enter a new password. The challenge question and answer will enable e-Docket to recover a password for a user who has forgotten his or her password.

 

f)         Because of the unique user I.D. and password, an electronic document can be traced to a specific individual as if it were signed. This shall serve as an electronic signature on such filings.

 

(Source:  Added at 24 Ill. Reg. 15934, effective October 15, 2000)

 

Section 762.1030  Control Processes

 

a)         e-Docket allows only users with I.D. and passwords to file electronic documents.

 

b)         Only members of the service list for a particular proceeding are allowed to file electronic documents in that case.

 

c)         Filings are scanned for computer viruses prior to being uploaded into the e-Docket system and will be rejected if the filing is infected. The submitter of such an electronic document will be notified of the rejection.

 

d)         The Web browser must be set to accept cookies in order for users to submit electronic documents. Cookies identify users and instruct the server to send a customized version of the requested Web page to the user. Cookies also submit account information for the user.

 

e)         e-Docket logs every filing with the user I.D., date, time, and file size information.

 

(Source:  Added at 24 Ill. Reg. 15934, effective October 15, 2000)

 

Section 762.1040  Submission of Electronic Documents

 

a)         Persons filing electronic documents shall receive a receipt with an identification number that shall be sent electronically. Documents that are required to be verified or that have an affidavit must include the scanned verification or affidavit pages in the filed electronic document in Adobe Acrobat PDF;  otherwise documents that are required to be verified or that have an affidavit shall be deemed to be officially filed or received only when the person submitting the electronic document submits to the Commission the original verification or affidavit pages accompanied by a printed copy of the electronic receipt for that document.

 

b)         The filing of an electronic document is effective upon acceptance of the complete document and, if applicable, any required original paper verification or affidavit pages by the Chief Clerk of the Commission in one of the formats specified in Section 762.1010(a).  Any required verification or affidavit pages, whether they be in an electronic format or a paper version, must be received and accepted by the Chief Clerk for purposes of meeting filing deadlines, unless otherwise specified by the Commission or the Hearing Examiner.

 

(Source:  Added at 24 Ill. Reg. 15934, effective October 15, 2000)

 

Section 762.1045  Electronic Documents Accepted by the Commission

 

All documents either initiating a proceeding subject to this Part or filed in a proceeding subject to this Part may be submitted to the Commission as electronic documents.

 

(Source:  Added at 24 Ill. Reg. 15934, effective October 15, 2000)

 

Section 762.1050  Service by Electronic Means

 

a)         Service by electronic means is allowed when agreed to by individual parties.  Notwithstanding Section 762.150, any party required to serve a pleading or other document may serve copies of pleadings and other documents on other parties of record by electronic means in substitution of first class mail, provided that the service is on an e-mail address that the recipient has identified in its appearance or in a subsequent filing or agreement.  Because of pagination and format concerns, the parties are encouraged to serve in PDF. When serving by electronic means, service is deemed complete on the day of electronic transmission if transmitted at or before the time due, except service by electronic means on weekends or holidays shall be deemed complete on the next business day unless otherwise specified by the Commissioner or the Hearing Examiner.

 

b)         If any party files a proprietary electronic document (see Section 762.220), that party must serve the proprietary electronic document on any other party of record that has the right to see the document on any legal or contractual basis, such as a confidentiality agreement, and a public redacted version pursuant to Section 762.220. The e-Docket system does not allow any person outside of the Commission to see or access proprietary electronic documents.

 

(Source:  Added at 24 Ill. Reg. 15934, effective October 15, 2000)

 

Section 762.1060  Electronic Documents and the Hearing Process

 

If any prefiled testimony or exhibit in the e-Docket system is offered and admitted into evidence without alteration at a hearing in an arbitration proceeding, the official copy is the document found in the e-Docket system. If a prefiled  document is submitted without alteration at hearing, any requirement to offer multiple copies at hearing is eliminated. If any prefiled testimony or exhibit in the e-Docket system is altered at hearing in any way and admitted into evidence, the altered testimony or exhibit is the official copy.  The sponsoring party must serve the complete altered document on the Commission and the other parties of record within seven days after that hearing or, if applicable, within seven days after the end of a continuous, day-to-day set of hearings, unless otherwise directed by the Hearing Examiner.

 

(Source:  Added at 24 Ill. Reg. 15934, effective October 15, 2000)