§ 51.803   Procedures for Commission notification of a state commission's
failure to act.

   (a) Any party seeking preemption of a state commission's jurisdiction,
   based on the state commission's failure to act, shall notify the
   Commission in accordance with following procedures:

   (1) Such party shall file with the Secretary of the Commission a
   petition, supported by an affidavit, that states with specificity the
   basis for the petition and any information that supports the claim that
   the state has failed to act, including, but not limited to, the
   applicable provisions of the Act and the factual circumstances
   supporting a finding that the state commission has failed to act;

   (2) Such party shall ensure that the state commission and the other
   parties to the proceeding or matter for which preemption is sought are
   served with the petition required in paragraph (a)(1) of this section
   on the same date that the petitioning party serves the petition on the
   Commission; and

   (3) Within fifteen days from the date of service of the petition
   required in paragraph (a)(1) of this section, the applicable state
   commission and parties to the proceeding may file with the Commission a
   response to the petition.

   (b) The party seeking preemption must prove that the state has failed
   to act to carry out its responsibilities under section 252 of the Act.

   (c) The Commission, pursuant to section 252(e)(5) of the Act, may take
   notice upon its own motion that a state commission has failed to act.
   In such a case, the Commission shall issue a public notice that the
   Commission has taken notice of a state commission's failure to act. The
   applicable state commission and the parties to a proceeding or matter
   in which the Commission has taken notice of the state commission's
   failure to act may file, within fifteen days of the issuance of the
   public notice, comments on whether the Commission is required to assume
   the responsibility of the state commission under section 252 of the Act
   with respect to the proceeding or matter.

   (d) The Commission shall issue an order determining whether it is
   required to preempt the state commission's jurisdiction of a proceeding
   or matter within 90 days after being notified under paragraph (a) of
   this section or taking notice under paragraph (c) of this section of a
   state commission's failure to carry out its responsibilities under
   section 252 of the Act.

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