26 Del. Admin. Code § 4000-2.0 - Negotiations

2.1 A telecommunications carrier requesting negotiation with an incumbent local exchange carrier concerning any of the obligations imposed under 47 U.S.C. § 251 shall make such a request in writing. A telecommunications carrier requesting negotiation shall, on the same day that such request is delivered to the other carrier, also file a copy of such request with the Commission. Either the requesting telecommunications carrier or the incumbent local exchange carrier may ask the Commission to treat the request filed as confidential and privileged information. If a telecommunications carrier has made a request for negotiation prior to the effective date of these guidelines, the requesting telecommunications carrier shall file a copy of the request with the Commission within fifteen days after the effective date of these guidelines.

2.2 After a request for negotiation has been made, each telecommunications carrier has a duty to negotiate in good faith. The duty to negotiate in good faith includes the obligation to meet and confer at reasonable times and places with minds open to persuasion and an eye towards reaching agreement over any of the terms and conditions set forth in 47 U.S.C. § 251(b), (c).

2.3 As part of the duty to negotiate in good faith, each telecommunications carrier shall provide to the other telecommunications carrier, upon request, relevant information about its costs or any other pertinent data which the requesting carrier can use to substantiate the claims made by each telecommunications carrier during the negotiations. The producing carrier may require reasonable protections that the information provided will remain confidential.

Interpretation. The guidelines require the requesting carrier to give notice to the Commission when it has made a request for negotiation to an incumbent local exchange provider under 47 U.S.C. § 251(c) and § 252(a). Such forewarning will allow the Commission to plan when it may be called upon to commence arbitration proceedings.

With the exception of the duty to provide documents, the guidelines do not provide a checklist for the "good faith" obligation. However, the Commission anticipates that the duty to negotiate in "good faith" may be given meaning by looking to a similar obligation imposed in the collective bargaining context under federal labor laws. 29 U.S.C. § 158.

The guidelines do specifically allow "discovery" during the negotiation process so that each carrier may verify the other's claims. Such discovery is generally perceived to be part of the good faith negotiation process. See NLRB v. Truitt Manufacturing Co., 351 U.S. 149 (1956). In this negotiation data exchange, the carrier producing data or other documents can require that the other carrier undertake reasonable protections to ensure that the information, documents, and data produced remain confidential and shall not be used to further the other carrier's business. The demand for such assurances should not, however, be so stringent or restrictive to become a device to forestall or impede bargaining.

Except in extraordinary circumstances, the Commission will not police the negotiations or entertain complaints of "bad faith," including the duty to disclose information. Instead the Commission may use remedial measures during the arbitration process to rectify prior breaches or recalcitrance.

Notes

26 Del. Admin. Code § 4000-2.0