# Title 69 — Public Service Commission

## Article 69-02 — Practice and Procedure

## Chapter 69-02-10 — Arbitration

### § 69-02-10-01. Definitions.

As used in this chapter:
1. "Act" means the federal Telecommunications Act of 1996 [Pub. L. No. 104-104].
2. "Arbitration" is a dispute resolution process by which a neutral third party renders a decision
on disputed issues which is binding on the parties, subject to commission approval.
3. "Arbitrator" is the term used to identify the arbitration decisionmaker.
4. "Commission" means the North Dakota public service commission.
5. "Entire package final offer arbitration" is a procedure under which the arbitrator must select,
without modification, the entire proposal of one of the parties.

6. "Final offer arbitration" is a procedure under which each party submits a final offer concerning
the issues subject to arbitration, and the arbitrator selects, without modification, one of the
final offers by the parties to the arbitration, or portions of both such offers.
7. "Issue-by-issue final offer arbitration" is a procedure under which the arbitrator must select,
without modification, on an issue-by-issue process, one of the proposals of either party on
each issue.
8. "Modified final offer arbitration" is a procedure under which each party submits a final offer
concerning the issues subject to arbitration, and the arbitrator may select and modify one of
the final offers by the parties to the arbitration, or portions of both such offers.
History: Effective July 1, 1997; amended effective January 1, 2001.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-02. Scope of rules.

These rules govern arbitrations of open or unresolved issues which arise under sections 251 and
252 of the Act, where one or more of the parties to a particular negotiation petition for arbitration.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-03. Representation.

The parties may be represented by counsel. The attorney for a party may act on the party's behalf.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-04. Commencement of arbitration.

The arbitration process is commenced with the filing of a petition with the commission pursuant to
section 252(b)(1) of the Act by any party to the negotiation process within the time period designated in
the Act. The arbitration process is deemed to begin on the date the petition is filed with the commission.
The petitioning party must deliver a copy of the petition with proof of service on all parties to the
negotiation on the day the petition is filed with the commission.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-05. Contents of petition.

The petition must be filed in accordance with the commission's rules of practice and procedure. The
petition must include the following information:
1. The name, address, telephone number, e-mail address, and fax number of the party making
the request.
2. The name, address, telephone number, e-mail address, and fax number of the other party to
the negotiation.
3. The name, address, telephone number, e-mail address, and fax number of each
representative of the parties who are participating in the negotiation.

4. A summary of the negotiation history including mediation proceedings.
5. A comprehensive statement identifying all unresolved issues including all relevant
documentation concerning those unresolved issues.
6. A statement of the position of each of the parties concerning the unresolved issues including
all relevant documentation pertaining to those issues.
7. A statement identifying the issues that have been resolved through voluntary negotiation.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-06. Relevant documentation.

Relevant documentation, for purposes of an arbitration proceeding, includes:
1. A brief or other written statement addressing the disputed issues, applicable state or federal
law, and applicable state or federal regulations.
2. In the case of price disputes, the incumbent local exchange company's proposed rates or
charges, and all relevant cost studies and supporting documentation.
3. Conditions that the parties request be imposed together with justification for the requested
conditions.
4. A proposed schedule for implementation of the terms and conditions of the agreement.
5. Proposed interconnection agreements submitted by both the petitioner and the respondent.
6. All other documents relevant to the dispute, including copies of all documents intended to be
introduced as evidence in the proceeding.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-07. Response to petition.

Under section 252(b)(3) of the Act, a nonpetitioning party to a negotiation may respond to a petition
for arbitration within twenty-five days after the commission receives the petition, and may present
additional issues and provide additional relevant documentation it wishes to have considered pertaining
to any of the issues. The party that files a response to a petition for arbitration with the commission
must deliver a copy of the response with proof of service on all parties to the negotiation at the time the
response is filed with the commission.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-08. Parties to provide list of arbitrators.

The party or parties that request arbitration shall provide the commission, within no less than fifteen
days from when the petition for arbitration is filed, names and qualifications of at least two qualified
neutral arbitrators that are acceptable to all parties to the negotiation. In the event the parties are
unable to agree on the acceptability of arbitrators, each party shall submit names and qualifications of
at least two arbitrators that would be acceptable to that party.

History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-09. Selection of the arbitrator.

The commission shall select and appoint a qualified arbitrator from the list provided by the parties.
If the parties are unable to comply with the requirements of section 69-02-10-08, the commission shall
appoint an arbitrator it determines to be qualified who may be a person from the commission's staff.
The commission may designate one or more commission staff personnel or an outside consultant to
serve as technical adviser to the arbitrator.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-10. Appointment of an arbitrator.

The commission shall appoint the arbitrator within twenty days after a petition has been filed.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-11. Ex parte communications.

A party may not have any ex parte communication with the arbitrator or technical advisor regarding
any issue related to the arbitration except for scheduling purposes.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 28-32-37, 49-01-07
### § 69-02-10-12. Payment of costs and fees.

The parties to the arbitration proceeding shall contract directly with the arbitrator for the arbitration
services and shall pay all costs and fees of the arbitrator and outside consultants retained to assist the
arbitrator. Costs associated with the arbitration process which are incurred by the commission or
commission staff in the arbitration proceeding must be paid by the telecommunications companies
involved in the proceeding under subsection 6 of North Dakota Century Code section 49-21-01.7.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07, 49-21-01.7
### § 69-02-10-13. Procedural officer.

The arbitrator appointed by the commission, in addition to having the authority to arbitrate the
disputed issues, has the authority of a hearing officer and will conduct the procedural aspects of the
arbitration proceeding.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 28-32-08.1, 28-32-08.5, 49-01-07

### § 69-02-10-14. Prehearing conference.

The arbitrator shall schedule a prehearing conference to be held no later than two hundred days
from the date of making the request for negotiation. The purpose of the prehearing conference is to
discuss a procedural schedule that conforms to the requirements of the Act, North Dakota laws and
rules, and commission issued procedural order and preliminarily discuss areas of testimony, discuss
the scope and timing of discovery, determine the timeline for filing testimony, and identify, simplify, and
limit issues. The arbitrator shall issue an order following the prehearing conference setting forth a
procedural order for the proceeding and identifying the issues in dispute.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 28-32-08.3, 49-01-07
### § 69-02-10-15. Notice of arbitration hearing.

Within fifteen days after the prehearing conference, the commission shall issue a notice of hearing
specifying the disputed issues that are the subject of the arbitration proceeding. The notice of
arbitration hearing must be issued as required under North Dakota Century Code Chapter 28-32.
Arbitration proceedings must be open to the public.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05, 28-32-05.1, 49-01-07
### § 69-02-10-16. Participation in the arbitration process.

Participation in the arbitration process must be limited to the petitioning party, the responding party,
and the commission staff. Commission staff personnel may participate in both advocacy or advisory
roles. In the event staff participates in an advocacy role, the commission will employ its split staff
procedures to designate advocacy and advisory staff members. An individual staff person may not be
permitted to serve in both an advocacy and advisory role.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-17. Confidentiality.

The petition, response, accompanying materials, and all other documentation provided to the
commission are subject to the North Dakota open records laws. A party may request trade secret
protection for information by filing an application with the commission under the provisions of chapter
69-02-09.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-06, 47-25.1
### § 69-02-10-18. Exchange of information.

The parties shall cooperate in good faith in the voluntary, prompt, and informal exchange of all
documents and other information relevant to the disputed issues, subject to claims of privilege or
confidentiality.
1. The parties shall exchange copies of all documents in their possession or control on which
they rely in support of their positions or which they may introduce as exhibits at the arbitration
hearing. The parties shall serve the documents within twenty days after the response to the

petition is filed with the commission, unless otherwise agreed or such other time is ordered by
the arbitrator.
2. The parties may offer other evidence that is relevant and material to the issues in dispute. The
parties must be required to produce such additional evidence as the arbitrator deems
necessary to understand and determine the issues in dispute.
3. The parties shall exchange a preliminary list of witnesses they expect to call at the arbitration
hearing within twenty days after the response to the petition is filed, unless otherwise ordered
by the arbitrator or agreed to by the parties. The preliminary list must identify expert witnesses
and the subject matter of their testimony. Within seven calendar days prior to the hearing, the
parties shall provide to each other and to the arbitrator a final list of witnesses they intend to
call, including experts, together with a brief description of the testimony of each witness and
the estimated time for the witness's direct testimony. In addition, within seven calendar days
prior to the hearing, the parties shall provide to each other and to the arbitrator a list of
exhibits intended to be used at the hearing together with copies of all exhibits not previously
provided.
4. Within seven calendar days prior to the hearing, each party shall submit concise written
statements of the party's position, including summaries of the facts and evidence a party
intends to present, discussion of the applicable law, and the basis for the requested decision
or denial of relief sought.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-19. Formal discovery.

The provisions of North Dakota Century Code chapter 28-32 control discovery in arbitration
proceedings. In the event any party fails or refuses to informally exchange requested information and
documents, the other parties may:
1. Submit a request to conduct discovery in accordance with North Dakota Century Code section
28-32-09.
2. Submit a request to the arbitrator to compel responses to reasonable discovery requests.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 28-32-09, 49-01-07
### § 69-02-10-20. Filing of direct testimony.

The parties to the arbitration proceeding shall file prepared written testimony relating to all of the
disputed issues in the proceeding within the time frame established in the prehearing conference order.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-21. Production of documents and other discovery materials.

Any party to the arbitration proceeding that receives a discovery request from another party or from
the arbitrator shall produce all discoverable information within the time period established in these rules
or the procedural order. If any party refuses or fails unreasonably to respond on a timely basis to any

reasonable request, the arbitrator may proceed on the basis of the best information available to the
arbitrator from whatever source derived under section 252(b)(4)(B) of the Act.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-22. Testimony of witnesses.

All witnesses shall present their testimony at the hearing under oath. The witnesses shall
authenticate their prefiled testimony and be subjected to direct examination and cross-examination.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 28-32-11, 49-01-07
### § 69-02-10-23. Evidence.

The arbitrator will consider evidence relevant and material to the dispute, giving the evidence such
weight as the arbitrator determines is appropriate. Exhibits to the record may be offered by either party
and may be received into evidence by the arbitrator. The admissibility of evidence shall be guided by
the applicable provisions of North Dakota Century Code chapter 28-32.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 28-32-06, 49-01-07
### § 69-02-10-24. Continuation of mediation.

The parties may at any time return to mediation to attempt to resolve disputed issues and the
parties may involve the arbitrator in such mediation efforts. The participation of the arbitrator in such
mediation efforts does not disqualify the arbitrator from continuing in the arbitration process.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-25. Transcript of the hearing.

A stenographic record of each arbitration hearing must be made. The arbitrator may require an
expedited copy of each hearing to be filed with the commission. The commission shall designate the
court reporter for the proceeding. The parties shall pay the fees and costs of the reporter including the
costs for preparing all transcripts directly to the court reporter.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-26. Commission to determine final offer arbitration process.

The arbitrator shall use final offer arbitration or modified final offer arbitration as directed by the
commission, except as otherwise provided in this section:
1. At the discretion of the arbitrator, the final offer arbitration process may take the form of either
entire package final offer arbitration or issue-by-issue final offer arbitration.
2. Negotiations between the parties may continue after final arbitration offers are submitted and
the parties may submit subsequent final offers following such negotiations.

3. The arbitrator may allow up to fifteen days after submission of the initial final offers before
making a decision in order to provide the opportunity for parties to conduct postoffer
negotiations.
4. The arbitrator may request the commission to change the final arbitration process at any time
prior to issuance of the arbitrator's decision.
History: Effective July 1, 1997; amended effective January 1, 2001.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-27. Filing of briefs and final offer arbitration agreements.

The petitioner and the respondent shall each file a posthearing brief and a final offer arbitration
agreement no later than ten days after the filing of the hearing transcript. The hearing officer has the
discretion to shorten the time for filing. The posthearing briefs of each party must summarize all
relevant portions of its final offer arbitrated agreement and cite legal authority and evidence to support
the adoption of its agreement.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-28. Contents of final offers.

Final offers submitted by the parties must:
1. Meet the requirements of section 251 of the Act and all rules prescribed by the federal
communications commission pursuant to that section.
2. Establish rates for interconnection, services, or access to unbundled network elements
according to section 252(d) of the Act, including all rules prescribed by the federal
communications commission pursuant to that section.
3. Provide a schedule for implementation of the terms and conditions by the parties to the
agreement. In the event a final offer of one or more of the parties fails to comply with the
requirements of this section, the arbitrator may take the action necessary to result in an
arbitrated agreement that satisfies the requirements of section 252(c) of the Act, including
requiring the parties to submit new final offers or adopting a result not submitted by any party
that is consistent with the requirements of section 252(c) of the Act and rules prescribed by
the federal communications commission pursuant to that section.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-29. Arbitrator's decision.

The arbitrator shall issue an arbitrator's decision which shall constitute resolution of the issues
submitted for arbitration, subject to final commission approval. The arbitrator's decision shall include:
1. A summary of the material evidence presented;
2. A discussion of the issues incorporating the respective positions of each of the parties;
3. A proposed agreement of the arbitrated issues; and
4. The final recommendation of the arbitrator.

The arbitrator's decision shall be issued no later than nine months from the date of the request for
negotiation.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-30. Submission of an interconnection agreement.

The parties shall jointly file with the commission an agreement incorporating the provisions adopted
through negotiation and arbitration within thirty days after the filing of the arbitrator's decision. The
combined agreement will be referred to as the interconnection agreement.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-31. Public comments.

Any person may file written comments on the interconnection agreement within fifteen days of the
date of filing of the agreement with the commission. Each of the arbitrating parties may also file
comments within the same time frame.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-32. Commission review.

Within thirty days following the filing of the interconnection agreement, the commission shall issue a
decision approving or rejecting the agreement.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
### § 69-02-10-33. Applicable laws and rules.

The arbitration procedure must be governed by the provisions of the Telecommunications Act of
1996, Public Law No. 104-104, 101 Stat. 56 (1996); the North Dakota Administrative Practices Act;
North Dakota Century Code chapter 28-32; the commission's rules of practice and procedure; North
Dakota Administrative Code article 69-02; and the commission issued guidelines and procedural
orders.
History: Effective July 1, 1997.
General Authority: NDCC 28-32-02, 49-02-11
Law Implemented: NDCC 28-32-05.1, 49-01-07
