Goto Section: 1.721 | 1.723 | Table of Contents
FCC 1.722
Revised as of October 1, 2011
Goto Year:2010 |
2012
§ 1.722 Damages.
(a) If a complainant wishes to recover damages, the complaint must
contain a clear and unequivocal request for damages.
(b) If a complainant wishes a determination of damages to be made in
the same proceeding as the determinations of liability and prospective
relief, the complaint must contain the allegations and information
required by paragraph (h) of this section.
(c) Notwithstanding paragraph (b) of this section, in any proceeding to
which no statutory deadline applies, if the Commission decides that a
determination of damages would best be made in a proceeding that is
separate from and subsequent to the proceeding in which the
determinations of liability and prospective relief are made, the
Commission may at any time order that the initial proceeding will
determine only liability and prospective relief, and that a separate,
subsequent proceeding initiated in accordance with paragraph (e) of
this section will determine damages.
(d) If a complainant wishes a determination of damages to be made in a
proceeding that is separate from and subsequent to the proceeding in
which the determinations of liability and prospective relief are made,
the complainant must:
(1) Comply with paragraph (a) of this section, and
(2) State clearly and unequivocally that the complainant wishes a
determination of damages to be made in a proceeding that is separate
from and subsequent to the proceeding in which the determinations of
liability and prospective relief will be made.
(e) If a complainant proceeds pursuant to paragraph (d) of this
section, or if the Commission invokes its authority under paragraph (c)
of this section, the complainant may initiate a separate proceeding to
obtain a determination of damages by filing a supplemental complaint
that complies with § 1.721(e) and paragraph (h) of this section within
sixty days after public notice (as defined in § 1.4(b) of this chapter)
of a decision that contains a finding of liability on the merits of the
original complaint.
(f) If a complainant files a supplemental complaint for damages in
accordance with paragraph (e) of this section, the supplemental
complaint shall be deemed, for statutory limitations purposes, to
relate back to the date of the original complaint.
(g) Where a complainant chooses to seek the recovery of damages upon a
supplemental complaint in accordance with the requirements of paragraph
(e) of this section, the Commission will resolve the separate,
preceding liability complaint within any applicable complaint
resolution deadlines contained in the Act.
(h) In all cases in which recovery of damages is sought, it shall be
the responsibility of the complainant to include, within either the
complaint or supplemental complaint for damages filed in accordance
with paragraph (e) of this section, either:
(1) A computation of each and every category of damages for which
recovery is sought, along with an identification of all relevant
documents and materials or such other evidence to be used by the
complainant to determine the amount of such damages; or
(2) An explanation of:
(i) The information not in the possession of the complaining party that
is necessary to develop a detailed computation of damages;
(ii) Why such information is unavailable to the complaining party;
(iii) The factual basis the complainant has for believing that such
evidence of; damages exists;
(iv) A detailed outline of the methodology that would be used to create
a computation of damages with such evidence.
(i) Where a complainant files a supplemental complaint for damages in
accordance with paragraph (e) of this section, the following procedures
may apply:
(1) Issues concerning the amount, if any, of damages may be either
designated by the Enforcement Bureau for hearing before, or, if the
parties agree, submitted for mediation to, a Commission Administrative
Law Judge. Such Administrative Law Judge shall be chosen in the
following manner:
(i) By agreement of the parties and the Chief Administrative Law Judge;
or
(ii) In the absence of such agreement, the Chief Administrative Law
Judge shall designate the Administrative Law Judge.
(2) The Commission may, in its discretion, order the defendant either
to post a bond for, or deposit into an interest bearing escrow account,
a sum equal to the amount of damages which the Commission finds, upon
preliminary investigation, is likely to be ordered after the issue of
damages is fully litigated, or some lesser sum which may be
appropriate, provided the Commission finds that the grant of this
relief is favored on balance upon consideration of the following
factors:
(i) The complainant's potential irreparable injury in the absence of
such deposit;
(ii) The extent to which damages can be accurately calculated;
(iii) The balance of the hardships between the complainant and the
defendant; and
(iv) Whether public interest considerations favor the posting of the
bond or ordering of the deposit.
(3) The Commission may, in its discretion, suspend ongoing damages
proceedings for fourteen days, to provide the parties with a time
within which to pursue settlement negotiations and/or alternative
dispute resolution procedures.
(4) The Commission may, in its discretion, end adjudication of damages
with a determination of the sufficiency of a damages computation method
or formula. No such method or formula shall contain a provision to
offset any claim of the defendant against the complainant. The parties
shall negotiate in good faith to reach an agreement on the exact amount
of damages pursuant to the Commission-mandated method or formula.
Within thirty days of the release date of the damages order, parties
shall submit jointly to the Commission either:
(i) A statement detailing the parties' agreement as to the amount of
damages;
(ii) A statement that the parties are continuing to negotiate in good
faith and a request that the parties be given an extension of time to
continue negotiations; or
(iii) A statement detailing the bases for the continuing dispute and
the reasons why no agreement can be reached.
(j) Except where otherwise indicated, the rules governing initial
formal complaint proceedings govern supplemental formal complaint
proceedings, as well.
[ 66 FR 16616 , Mar. 27, 2001]
Goto Section: 1.721 | 1.723
Goto Year: 2010 |
2012
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