Goto Section: 14.39 | 14.41 | Table of Contents
FCC 14.40
Revised as of October 2, 2015
Goto Year:2014 |
2016
§ 14.40 Damages.
(a) A complaint against a common carrier may seek damages. 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 § 14.39(d)
of this subpart 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.
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Goto Section: 14.39 | 14.41
Goto Year: 2014 |
2016
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