252. In addition, our open Internet formal complaint process already contemplates burden shifting.645 Generally, complainants bear the burden of proof and must demonstrate by a preponderance of the evidence that an alleged violation has occurred. A complainant must plead with specificity the basis of its claim and provide facts and documentation, when possible, to establish a prima facie rule violation.646 Defendants must answer each claim with particularity and furnish facts, supported by documentation or affidavit, demonstrating that the challenged practice complies with our rules. Defendants do not have the option of merely pointing out that the complainant has failed to meet his or her burden; they must show that they are in compliance with the rules. The complainant then has an opportunity to respond to the defendant's submission.647 We retain our authority to shift the burden of production when, for example, the evidence necessary to assess the alleged unlawful practice is predominately in the possession of the broadband provider.648 If a complaining party believes the burden of production should shift, it should explain why in the complaint. Complainants also must clearly state the relief requested.649 We conclude that we should retain our existing open Internet procedural rules and that all formal complaints that relate to open Internet disputes, including Internet traffic exchange disputes, will be subject to those rules.650 Although comparable to the section 208 formal complaint rules,651 the open Internet rules are less burdensome on complainants, who in this context are likely to be consumers or small edge providers with limited resources.652 Moreover, as described above, the open Internet procedural rules allow the Commission broader flexibility in tailoring proceedings to fit particular cases
----- Original Message ----- From: CBB - Jay Fuller To: CBB - Jay Fuller ; [email protected] ; [email protected] Sent: Saturday, March 14, 2015 9:25 PM Subject: Re: so nice of them to call us out.... footnote: WISPA maintains that "any enforcement advisories should not be created in a vacuum and must be based on a public record following an opportunity for interested consumers and industry parties to submit comments." WISPA Comments at 34. We disagree with the contention that public notice and comment should be a prerequisite for the Commission to issue an enforcement advisory. The Commission uses its rulemaking procedures when we are adopting rule changes that require notice and comment. Conversely, enforcement advisories are used to remind parties of existing legal standards. ----- Original Message ----- From: CBB - Jay Fuller To: [email protected] ; [email protected] Sent: Saturday, March 14, 2015 9:22 PM Subject: so nice of them to call us out.... 238. The Wireless Internet Service Providers Association (WISPA) opposes the adoption of an advisory opinion process "because it assumes an inherent uncertainty in the rules and creates a 'mother may I' regime -essentially creating a system where a broadband provider must ask the Commission for permission when making business decisions."615 According to WISPA, "[t]his system would increase regulatory uncertainty and stifle broadband providers from innovating new technologies or business methods. It also would be expensive for a small provider to implement, requiring legal and professional expertise. 239. We find that WISPA's concerns are misguided. Because requests for advisory opinions will be entirely voluntary, we disagree with the contention that their use would force broadband providers to seek permission before implementing new policies or technologies and thereby stifle innovation.617 In addition, we agree with other commenters that advisory opinions would provide more, not less, certainty regarding the legality of proposed business practices.
