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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before The FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) NASSAU COMMUNICATIONS ) NETWORK, INC., ) ) Complainant, ) ) v. ) ) NATIONAL COMMUNICATIONS ) File No. E-93-027 NETWORK, INC., ) LEX-NET COMMUNICATION, INC., ) File No. E-93-028 U.S. OSIRIS CORP., and ) File No. E-93-029 ECONOMY LODGING SYSTEMS, ) File No. E-93-030 ) Defendants. ) ORDER Adopted: September 25, 1997 Released: September 26, 1997 By the Chief, Formal Complaints and Investigations Branch, Enforcement Division, Common Carrier Bureau: I. INTRODUCTION 1. On December 30, 1992, Nassau Communications Network, Inc. ("Nassau") filed formal complaints against National Communications Network, Inc. ("NCN"), Lex-Net Communications, Inc. ("LNC"), and U.S. Osiris Corp. ("USO") pursuant to Section 208 of the Communications Act of 1934, as amended ("the Act"), alleging that defendants violated Sections 201(b), 203, and 626(b) of the Act, and Section 64.704 of the Commission's rules. Nassau alleged, inter alia, that LCN violated Section 201(b) by falsely representing that rates to be charged would be no higher than AT&T rates, and by billing and charging rates that were higher. Nassau further claimed that the defendants together violated Section 201(b) by "conspiring to violate the Act" through marketing and providing operator services without filing a tariff. On February 29, 1993, defendants separately filed Answers to the Complaints denying that they had violated any provision of the Act or any Commission rule. 2. On July 18, 1997, NCN, LNC, and USO (collectively "the defendants") filed the instant Motion to Dismiss with Prejudice for Failure to Prosecute ("Motion to Dismiss"). Nassau did not oppose the Motion to Dismiss. For the reasons set forth below, we grant the defendants' unopposed Motion to Dismiss. II. DISCUSSION 3. The Motion to Dismiss must be considered in the light of the extended discovery proceedings that have occurred. Because of complex, disputed, and still unresolved discovery motions, coupled with the sporadic and/or indifferent prosecution of the proceeding by the complainant and its failure to complete its discovery undertakings, the instant complaints have been before the Commission for over four years. On January 20, 1994, Nassau filed a motion to compel discovery. The defendants filed an opposition to Nassau's motion to compel, contending that it was contrary to a staff letter ruling issued June 18, 1993, denying discovery on other than jurisdictional issues. On February 24, 1994, the Commission staff held a discovery status conference and denied Nassau's motion to compel, and maintained the stay on further discovery other than that directed at the jurisdictional issues. No further affirmative action has been taken by Nassau since that date. 4. Despite our extensive proceedings to afford the parties sufficient opportunity to conduct requested discovery, Nassau now appears to have abandoned prosecution of its claims. The Commission staff has periodically communicated with counsel for Nassau regarding its intention to complete the requested discovery, but counsel failed to respond. In particular, Nassau failed to respond to our request of July 20, 1994 for an explanation of what further discovery, if any, Nassau required on certain threshold jurisdictional issues. More recently, Nassau retained new counsel without notifying either the Bureau or counsel for the defendants, as is required by Section 1.720(g) of the Commission's rules. Further, after being notified by letter and prior telephone communication in June and early July 1997 that the staff wanted to schedule a status conference, Nassau's counsel of record indicated by phone that it would be unlikely that Nassau would attend, either by counsel or pro se. We then formally notified all parties that the proposed status conference was set for July 18, 1997. Subsequent telephone conversations were held with counsel for both Nassau and the NCN defendants to insure that the parties had actual notice of the scheduled status conference and its purpose. By letter dated July 10, 1997, Nassau's counsel of record advised us that "this firm" no longer represented Nassau. Thus, Nassau's counsel of record was afforded the opportunity to communicate with its client regarding the proposed July 18, 1997 status conference and its purpose, i.e., to discuss and resolve dormant discovery issues or any outstanding procedural matters that might assist the parties in implementing an immediate resumption of active and effective prosecution of this case. The scheduled status conference was held in accordance with the written notice given the parties, but only counsel for the defendants attended. 5. Defendants filed and served the Motion to Dismiss on July 18, 1997 contending that the complaint should be dismissed for failure to prosecute. In that regard, defendants argue that failure of the plaintiff to take affirmative action in the proceeding for more than 42 months is well-established grounds for dismissal. Specifically, defendants cite Nassau's failure to respond to staff requests, its withdrawal of counsel without a replacement, and its refusal to attend a status conference. Finally, the defendants argue that dismissal of the complaint is in the public interest and will assist the Commission in managing its docket. Nassau did not file an opposition to the Motion to Dismiss. 6. It is clear that the Commission has statutory authority to promulgate and enforce rules that promote the efficient prosecution and disposition of cases before it. Under Sections 4(i) and 4(j) of the Communications Act, 47 U.S.C.  154(i)-(j), the Commission may "issue such orders. . . as may be necessary in the exercise of its functions" and may "conduct its proceedings in such manner as will conduce proper dispatch of business." It is settled that the Commission will dismiss a complaint for failure to prosecute when "it is apparent that complainant has ceased to pursue its complaint." Our review of the record, including Nassau's evident failure to complete the discovery-related undertakings made to the Bureau in status meetings, its failure to timely apprise the Bureau of its purported withdrawal or change of legal counsel, its recent failure to attend a scheduled status conference of which it had actual and more than sufficient prior notice of its time and purpose, and the unrebutted legal arguments of the defendants in their unopposed Motion to Dismiss, convince us that it is appropriate to grant the Motion to Dismiss. Although the defendants' Motion did not include a request to dismiss the portion of this consolidated proceeding against Economy Lodging Systems ("ELS"), we take this opportunity to dismiss the complaint against ELS on the same grounds as we dismissed the complaints against NCN, LNC, and USO. III. CONCLUSION 7. For the reasons discussed above, we grant the Motion to Dismiss and dismiss the above- captioned complaints against the remaining defendants, NCN, USO, ELS, and LNC, because of Nassau's failure to prosecute its claims under Section 208 of the Act. IV. ORDERING CLAUSE 8. Accordingly, IT IS ORDERED, pursuant to Sections 1, 4(i), 4(j), and 208 of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 154(j), 208, and authority delegated in Sections 0.91 and 0.291 of the Commission's rules, 47 C.F.R.  0.91, 0.291, that the defendants' Motion to Dismiss with Prejudice for Failure to Prosecute IS GRANTED. 9. IT IS FURTHER ORDERED that the above-captioned complaints ARE DISMISSED WITH PREJUDICE and that the proceedings ARE TERMINATED. FEDERAL COMMUNICATIONS COMMISSION Kurt A. Schroeder Chief, Formal Complaints and Investigations Branch Enforcement Division Common Carrier Bureau