March 1998

 

Introduction

 

Despite the long and distinguished history of cooperation and good sportsmanship in the Amateur Radio community, there are occasions in which legitimate disputes arise involving operators or repeater stations. Previously, the only way these controversies could be handled was through formal complaint proceedings before the Federal Communications Commission (FCC) or in court. However, because those mechanisms are notoriously slow and costly, a more informal system of dispute resolution has been sorely needed.

At the 1997 Annual Meeting of the Board of Directors of the American Radio Relay League, Inc., held January 17-18, 1997, and reported in the March 1997 issue of QST (the League's official journal), the Board recognized the usefulness of such litigation alternatives as mediation and arbitration and voted to "establish an Alternative Dispute Resolution (ADR) service for the use of Amateur Radio operators, amateur organizations, citizens and organizations and others having disputes concerning Amateur Radio related subjects".

The Board of Directors also set forth the following mandates to govern the organization and operation of the new service:

1. ADR is a substitute for settling problems by litigation. ADR includes: conciliation, mediation, and arbitration - either binding or non-binding.

2. ADR offers will be arranged through the office of League's General Counsel, by means of referral to volunteer counsel or others.

3. All costs of ADR will be borne by the disputants.

4. All ADR will be by agreement of the disputants.

5. Rules of ADR will be made by General Counsel's direction and will be considered accepted by disputants and persons designated and agreed upon as facilitators.

6. ARRL and the volunteer arbitrators will be free from liability by means of prior written agreement of the participants who choose to avail themselves of the service.

Choosing Arbitration Over Litigation: Weighing the Options

 

In commercial settings, parties can decide whether they will use arbitration (as opposed to litigation) to resolve their disputes long before any disputes have arisen. In those situations, the method of future dispute resolution is simply a negotiated term of the contractual relationship. However, the arbitration option can just as easily be accepted after a contract dispute has already surfaced. Similarly, parties seeking to use the ARRL Arbitration Service may agree to do so after an amateur radio-related dispute has arisen - even if they have no prior relationship.

In arbitration, the evidence and arguments are received and adjudicated by a neutral arbitrator. The arbitrator is an attorney who is registered with the ARRL Arbitration Service as a Volunteer Counsel. (Volunteer Counsel are attorneys with knowledge of the law and legal issues affecting amateur radio; they have often provided invaluable service in court cases across the country which involved interpreting the legal rights of amateur radio operators). The arbitrator is sworn to be impartial toward the parties, whether they are amateur operators, amateur clubs, non-amateur neighbors, or neighborhood or municipal organizations.

The process is relatively informal, and the parties represent themselves (although there is no prohibition on a party hiring an attorney). Unlike litigation, however, the arbitrator's judgment is final and not subject to appeal. (The rules do provide that a party may petition the arbitrator to reconsider part or all of a judgment.) Because the parties have agreed to accept and abide by the arbitrator's final judgment, the judgment can be enforced in court if a party or parties do not voluntarily comply.

As discussed above, the Board of Directors authorized the creation of a complete "alternative dispute resolution" system (including mediation and non-binding arbitration). However, the greatest need at the present time is for a process which commits the parties to a final, non-appealable resolution to amateur radio-related disputes. Given the long history of cooperation and dedication to harmonious resolution of conflicts which characterize the typical amateur radio enthusiast, only those legitimate disputes which cannot be resolved by the parties themselves, and which thus require third-party intervention, should be brought to the League's attention. Furthermore, the enforceable nature of the award and the imposition of fees necessary to provide minimal reimbursement to arbitrators help ensure that parties will clearly analyze their dispute, enunciate their concerns, and dedicate an appropriate amount of effort into arguing their case.

A case is initiated by contacting the ARRL Regulatory Information Office.  They will get you connected with the appropriate ARRL resouce for this service.  Contact [email protected] or phone 860-594-0236.

 

Rules of Arbitration

 

1. Initiation of a Case

 

Parties to a dispute involving issues of concern to the Amateur Radio Service as regulated by the FCC may commence a case under these Rules by filing with the ARRL General Counsel an original Arbitration Agreement containing substantially the following language:

ARBITRATION AGREEMENT

We, the undersigned parties, hereby agree to submit to arbitration administered by The American Radio Relay League Arbitration Service under its Rules of Arbitration regarding the following controversy: (cite briefly).

We understand that the controversy will be arbitrated by a Volunteer Counsel arbitrator registered with the ARRL Arbitration Service. We agree that we will faithfully observe this agreement and the ARRL Arbitration Service Rules, that we will abide by and perform any award rendered by the arbitrator, and that a judgment of a court having jurisdiction may be entered on the award.

Date: ________

Signed:___________________

___________________

The Agreement shall contain a concise statement of the nature of the dispute and the remedy sought, and be submitted with the appropriate filing fee as provided in the Fee Schedule set forth below. To facilitate scheduling of a hearing, the parties may submit a list of dates, times, and/or locations preferred by the parties. The earliest date specified in the agreement should be at least 45 days after the filing of the Arbitration Agreement. The parties may also state their joint preferences regarding an arbitrator.

2. Incorporation of Rules Into Agreement of the Parties

 

By instituting an arbitration proceeding administered by the ARRL Arbitration Service, the parties shall be deemed to have made these Rules a part of their Arbitration Agreement. These rules shall apply in the form existing at the time the parties execute their agreement. The parties, by written agreement and with the consent of the arbitrator, or as required by law, may vary the procedures (including deadlines) set forth in these rules.

3. ARRL Panel of Volunteer Counsel; Appointment of Arbitrator(s)

 

The ARRL Arbitration Service shall establish and maintain a list of Volunteer Counsel. Appearance on such list shall be voluntary, but each attorney must have practiced law at least 2 years and be able to demonstrate a basic understanding of both the Communications Act of 1934, as amended, and the rules of the FCC as applicable to amateur radio.

Upon the filing of an Arbitration Agreement, the ARRL Arbitration Service shall select an arbitrator from the current list of Volunteer Counsel. Consideration shall be given for proximity of the counsel to the disputants as well as the nature of the dispute and the Volunteer Counsel's experience and areas of practice. Due consideration shall be given to any person specifically named in the Arbitration Agreement.

Panels of 3 arbitrators shall be appointed to preside over cases in which a liquidated monetary amount of more than $10,000.00 is in dispute. In such cases, each party shall designate 1 arbitrator. In cases involving 2 parties, the ARRL Arbitration Service shall designate a third arbitrator. In cases involving more than 3 parties, the ARRL Arbitration Service shall designate 3 panelists from among those chosen by the parties.

In cases involving non-amateur parties, such non-amateur parties may elect arbitration conducted by a panel of 3 arbitrators. Except in cases involving disputes of a liquidated dispute exceeding $10,000 (see previous paragraph), such panels shall be chosen as follows: All amateur parties shall jointly designate one arbitrator from the list of Volunteer Counsel; all non-amateur parties shall jointly designate one arbitrator who shall be an attorney who has practiced law a minimum of 2 years; the two arbitrators shall jointly designate a third member of the panel who shall be an attorney who has practiced law a minimum of 2 years.

Upon appointment, each arbitrator shall execute and submit to the ARRL Arbitration Service the following pledge:

I agree to act as arbitrator in the dispute between (name the parties) as stated in the Arbitration Agreement dated ___________. I pledge to act with complete impartiality toward the parties and the issues involved. There is no fact or circumstance likely to affect my impartiality, including any bias or any financial or personal interest in the result of the arbitration or any past or present relationship with the parties or their representatives, except as follows: (state if any).

If for any reason an appointed arbitrator is unable to continue or to perform the duties of the office, the ARRL Arbitration Service shall appoint a replacement in accordance with these rules. If a hearing or hearings have already been held in the case, and rehearing is necessary due to replacement of an appointed arbitrator, no additional hearing fee shall be charged to the parties. In that event, all prepaid hearing fees shall be remitted to the arbitrator who renders an award.

Notwithstanding any of the foregoing, any party may, upon due notice given within 5 days of the appointment of any arbitrator, object to such appointment for good cause. Good cause is limited to reasonable evidence of past bias on the part of the arbitrator regarding either the subject of the dispute or one of the parties. If good cause is found, such arbitrator shall be excluded and a replacement shall be designated in accordance with this Rule.

4. "Due Notice"

 

Any "due notice" required by these rules shall be given to the arbitrator(s) in the case and all parties to the dispute. Whenever due notice is required in these rules, it shall be deemed valid when personally delivered or when mailed, if postmarked on or before any applicable deadline. Where appropriate, due notice may also be given by electronic mail, telephone, or facsimile. However, a party may not rely on a verbal or electronic notice unless a paper copy of the same is thereafter sent by regular mail in a timely manner.

5. Interim Relief

 

The arbitrator may, upon request or independently, issue such orders for interim relief as may be necessary to ensure fairness or to preserve the property or rights of the parties. Such measures shall not prejudice the final determination of the dispute.

6. Issues Involving Frequency Assignment/Coordination

 

In cases involving frequency assignment or frequency coordination, the ARRL shall have sole authority to designate the appropriate organization having responsibility for such assignment or coordination.

7. Applicable Law

 

All parties and arbitrators shall presume the validity and enforceability of all provisions of the Communications Act of 1934, as amended, the rules of the FCC, and any formal or informal statements of policy issued by the FCC. Any party or arbitrator may seek a declaration or clarification from the ARRL General Counsel regarding interpretation of any such provision.

Arbitrators shall identify and resolve questions of non-preempted state law, including substantive property rights.

8. Submission of Evidence; Discovery; Waiver of Oral Hearing

 

The Arbitration Service is intended to provide an open forum for the resolution of conflicts in a fair and meaningful way. Accordingly, at least 30 days prior to hearing, parties must provide to the arbitrator and to all other parties: (i) all physical evidence (including affidavits or other documents) upon which the party intends to rely at hearing, and (ii) a list of the names and addresses of all individuals to be called as witnesses, together with a brief summary of the nature of their anticipated testimony. Any bad faith failure to submit evidence in sufficient time for adequate review, or any attempt to produce surprise evidence may, in the sole discretion of the arbitrator, result in the declaration of a postponement and the levying of a postponement fee on the offending party.

Any party may demand relevant information or admissions from any other party. Such demands must be given in writing by due notice. Objections to such demands may be made by giving due notice. The arbitrator shall rule on such objections in a timely manner. Failure to object to a demand for admission shall not be construed as an admission.

Upon agreement of the parties, the case may be submitted to the arbitrator for decision based on the physical evidence (including affidavits) in the record. The arbitrator may order further documentation or may schedule a hearing to address conflicts not resolved by the evidence in the record.

9. Date, Time, and Place of Hearing

 

The arbitrator shall set the date, time, and place of the hearing and give notice thereof at least 45 days in advance of the hearing date. Due consideration shall be given for any dates and locations specified in the Arbitration Agreement. Any party may, within 5 days and upon due notice, request a change in the date, time, or place designated in the scheduling notice. After 5 days, any request to change the date will be treated as a postponement request as set out below.

10. Attendance at Hearings

 

The arbitrator may make such rulings as are necessary to protect the privacy or confidentiality of any information disclosed in hearings or in submitted documents. The arbitrator shall have full authority to exclude any witness from a hearing during the testimony of any other witness. It is also within the discretion of the arbitrator to admit or deny admission of any other person to the hearing.

Notwithstanding the foregoing, any party and any other person directly affected by the issues involved, is entitled to be present during any part of a hearing.

11. Hearing Proceedings; Presentation of Evidence

 

A hearing shall be opened by the recording of the date, time, and location of the hearing, and the presence of the arbitrator and the parties or their representatives and by the receipt by the arbitrator of the statement of the issues as posed in the Arbitration Agreement. If necessary, the arbitrator may ask for statements clarifying the issues involved.

Each party shall be afforded an opportunity to present material and relevant evidence, and shall produce such additional evidence as the arbitrator may deem necessary to an understanding and resolution of the dispute. An arbitrator may compel testimony or other evidence from a party to the complaint at the request of any other party or independently. Failure to comply may result in appropriate sanctions, including the levying of fines.

Exhibits, when offered by either party, may be received in evidence by the arbitrator. A description of all exhibits and the names and addresses of all witnesses shall be made part of the record. All witnesses shall be required to testify under oath. Witnesses shall be subject to questions or other cross-examination.

The arbitrator may receive and consider the evidence of witnesses by affidavit, but shall only give it such weight as the arbitrator deems it is entitled to receive after consideration of any objection made to its admission.

The arbitrator shall be the judge of the relevance and materiality of offered evidence. Conformity to legal rules regarding evidence shall not be required.

12. Postponement of Hearing

 

Unless all parties and the arbitrator agree on a postponement, any party may, by due notice and submission of the appropriate fee, petition the arbitrator for postponement of a scheduled hearing.

The arbitrator may, upon due notice and for good cause, postpone a scheduled hearing.

Absent compelling circumstances, any postponement must be requested at least 3 days before a scheduled hearing.

13. Absence of a Party

 

If no petition for postponement has been given by due notice, the oral hearing shall commence on the date and time and at the place appointed by the arbitrator. The hearing shall proceed regardless of the presence or absence of a party or its representative. However, an award may not be based solely on the default of a party; all attending parties must submit sufficient evidence to justify an award in their favor.

14. Special Accommodations

 

The cost of any special accommodations necessary for any party, such as the use of an interpreter, shall be borne by that party.

15. Hearing Record

 

Any party desiring an accurate transcript of the proceedings of a hearing may, at its own cost, procure the services of a qualified stenographer or court reporter. A copy of any such transcript shall be made reasonably available for inspection by the arbitrator or any other party.

16. Post-Hearing Submission of Evidence; Inspections

 

The arbitrator may accept or demand post-hearing submissions of evidence to supplement the record. In addition, the arbitrator may require the parties to submit final briefs, and shall set a final date by which such briefs may be submitted.

The arbitrator may conduct a site inspection or other investigation. All parties shall be invited to the inspection. If a party is not present at the inspection, the arbitrator shall prepare a written report to the absent party and afford it opportunity to comment.

17. Party Communications with Arbitrator

 

There shall be no direct communication between any party and a neutral arbitrator regarding the merits of the case other than in open hearing, unless written due notice of the content of such communication is immediately provided to all other parties.

18. Closing of Hearing

 

The arbitrator shall not close the hearing record until, after inquiry, all parties have indicated that they have no further evidence to offer, or until the arbitrator is satisfied that the record is complete.

If the arbitrator orders final briefs, the record shall be declared closed as of the deadline set by the arbitrator for the receipt of the briefs.

19. Reopening of Hearing

 

The hearing may be reopened at the arbitrator's initiative, or upon application of a party, for good cause, at any time before an award is made. Good cause entails changed circumstances or new evidence not previously available.

20. Failure to Object

 

Any party who fails to timely object, by written due notice, to any violation of these rules shall be deemed to have waived the right to object as to that violation.

21. Time of Award; Form

 

Unless otherwise agreed by the parties, an award shall be rendered no later than 20 days from the close of the hearing or the final submission of documents.

The award shall be in writing and shall be signed by the arbitrator. A copy of the award shall be mailed to all parties and the ARRL Arbitration Service.

22. Reconsideration of Award

 

Any party may, upon due notice and payment of the applicable fee, petition the arbitrator for reconsideration of part or all of the arbitrator's award. The petition shall clearly identify facts in the record (or other facts not previously available) and/or points of law which contradict the award and support a contrary determination. All other parties shall have an opportunity to respond to the petition for reconsideration. If a significant dispute is suggested, the arbitrator may reopen the record and require additional information or hearings as appropriate.

23. Scope of Award; Award Upon Settlement

 

The arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the parties' Arbitration Agreement. The award may contain directions for the payment of fees, expenses, and other sums, as necessary.

If the parties settle during the course of arbitration, the arbitrator may enter the terms of the settlement into a consent award.

24. Public Notice of Proceedings

 

A docket of scheduled hearings, as well as the text of all Arbitration Agreements and of any awards, judgments, or other written rulings of arbitrators rendered in a proceeding conducted by the ARRL Arbitration Service shall be published in QST Magazine and on the official ARRL web site (http://www.arrl.org).

25. Release of Documents for Judicial Proceedings

 

Upon the written request of any party, the ARRL Arbitration Service shall furnish to the party, at that party's expense, certified copies of any non-privileged papers in the Arbitration Service's possession that may be required in judicial proceedings instituted to enforce an award rendered in arbitration.

26. Judicial Proceedings and Exclusion of Liability

 

Neither ARRL, the ARRL Arbitration Service, the ARRL General Counsel, nor any arbitrator serving in a proceeding under these rules is a necessary party in judicial proceedings relating to the arbitration.

Parties to these rules shall be deemed to have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction.

Neither ARRL, the ARRL Arbitration Service, the ARRL General Counsel, nor any arbitrator serving in a proceeding under these rules shall be liable to any party for any act or omission in connection with any arbitration conducted under these rules.

27. Arbitrator Compensation/Reimbursement

 

Arbitrators shall be compensated by fees for each hearing day involved in a dispute over which they preside, according to the Fee Schedule set forth below. One hearing day shall be assessed for pre-hearing review of the evidence by each arbitrator. One-half hearing day shall be assessed for consideration by the arbitrator of any evidence submitted after the hearing. Arbitrators' compensation shall be remitted by the ARRL Arbitration Service upon notice that the hearing is closed.

Any expenses incurred in producing a witness or an exhibit shall be borne by the party offering such evidence. Any cost of procuring facilities for conducting a hearing shall be divided equally among the parties. (Arbitrators are encouraged to offer free use of their offices.) Any out-of-pocket costs incurred by an arbitrator, including travel costs and the cost of producing witnesses or exhibits at the arbitrator's direction, shall be divided equally among the parties, unless the parties agree otherwise or the arbitrator so directs.

28. Interpretation of Rules

 

The arbitrator shall interpret these rules insofar as they relate to the arbitrator's powers and duties. All other questions of interpretation shall be referred to the ARRL Arbitration Service.

29. Fees

 

Fees shall be assessed as set forth in the Fee Schedule below. All fee payments must be directed to the ARRL Arbitration Service. All filing fees shall be due at the time of filing any document for which a fee is assessed. All hearing fees (including fees for pre-hearing review of evidence by each arbitrator) shall be submitted at least 1 week prior to the scheduled hearing. The ARRL Arbitration Service may waive or reduce required fees in cases of demonstrated hardship.

30. Consequences of Nonpayment

 

If an applicable fee has not been received at the time of hearing, the arbitrator shall so inform the parties and may suspend proceedings and order the noncomplying party to pay the postponement fee. If an applicable fee has not been paid within 10 days of the corresponding filing, and no arbitrator has yet been appointed, the ARRL Arbitration Service may suspend the proceedings until payment is received.

Fee Schedule

 

The following fees shall be assessed, as applicable, to cover the administrative costs of the ARRL Arbitration Service. All fees are non-refundable. All payments must be made directly to the ARRL Arbitration Service - NOT to the arbitrator(s).

Filing of an Arbitration Agreement (per party) $ 50.00

Hearing Fee (per day per party per arbitrator) 175.00

Postponement of Hearing 75.00

Petition for Reconsideration of Award 100.00