§  64.1703   Dispute resolution default process.

   (a) Tri-Partite Panel. Technical disputes governed by this section
   shall be resolved in accordance with the recommendation of a
   three-person panel, subject to a vote of the funding parties in
   accordance with paragraph (b) of this section. Persons who participated
   in the generic requirements or standards development process are
   eligible to serve on the panel. The panel shall be selected and operate
   as follows:

   (1) Within two (2) days of the filing of a dispute with the NASDO
   invoking the dispute resolution default process, both the funding party
   seeking dispute resolution and the NASDO shall select a representative
   to sit on the panel;

   (2) Within four (4) days of their selection, the two panelists shall
   select a neutral third panel member to create a tri-partite panel;

   (3) The tri-partite panel shall, at a minimum, review the proposed text
   of the NASDO and any explanatory material provided to the funding
   parties by the NASDO, the comments and any alternative text provided by
   the funding party seeking dispute resolution, any relevant standards
   which have been established or which are under development by an
   accredited-standards development organization, and any comments
   submitted by other funding parties;

   (4) Any party in interest submitting information to the panel for
   consideration (including the NASDO, the party seeking dispute
   resolution and the other funding parties) shall be asked by the panel
   whether there is knowledge of patents, the use of which may be
   essential to the standard or generic requirement being considered. The
   fact that the question was asked along with any affirmative responses
   shall be recorded, and considered, in the panel's recommendation; and

   (5) The tri-partite panel shall, within fifteen (15) days after being
   established, decide by a majority vote, the issue or issues raised by
   the party seeking dispute resolution and produce a report of their
   decision to the funding parties. The tri-partite panel must adopt one
   of the five options listed below:

   (i) The NASDO's proposal on the issue under consideration;

   (ii) The position of the party seeking dispute resolution on the issue
   under consideration;

   (iii) A standard developed by an accredited standards development
   organization that addresses the issue under consideration;

   (iv) A finding that the issue is not ripe for decision due to
   insufficient technical evidence to support the soundness of any one
   proposal over any other proposal; or

   (v) Any other resolution that is consistent with the standard described
   in section 64.1703(a)(6).

   (6) The tri-partite panel must choose, from the five options outlined
   above, the option that they believe provides the most technically sound
   solution and base its recommendation upon the substantive evidence
   presented to the panel. The panel is not precluded from taking into
   account complexity of implementation and other practical considerations
   in deciding which option is most technically sound. Neither of the
   disputants (i.e., the NASDO and the funding party which invokes the
   dispute resolution process) will be permitted to participate in any
   decision to reject the mediation panel's recommendation.

   (b) The tri-partite panel's recommendation(s) must be included in the
   final industry-wide standard or industry-wide generic requirement,
   unless three-fourths of the funding parties who vote decide within
   thirty (30) days of the filing of the dispute to reject the
   recommendation and accept one of the options specified in paragraphs
   (a)(5) (i) through (v) of this section. Each funding party shall have
   one vote.

   (c) All costs sustained by the tri-partite panel will be incorporated
   into the cost of producing the industry-wide standard or industry-wide
   generic requirement.