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Federal Communications Commission
Washington, D.C. 20554
Marpin Telecoms and )
Broadcasting Company Limited, )
Cable & Wireless, Inc., Cable & )
Wireless USA, Inc., and Cable & )
Wireless, plc, )
MEMORANDUM OPINION AND ORDER
Adopted: April 11, 2002 Released: April 19, 2002
By the Commission:
1. In this Order, we deny a complaint that Marpin Telecoms
and Broadcasting Company Limited (``Marpin'') filed against Cable
& Wireless, Inc. (``CWI''), Cable & Wireless, USA, Inc. (``CW
USA''), and Cable & Wireless, plc (``CW plc'') pursuant to
section 208 of the Communications Act of 1934, as amended
(``Act'').1 Specifically, we reject Marpin's claim that the
defendants' failure to restrain the allegedly anticompetitive
activities of their affiliate/subsidiary operating in the
Commonwealth of Dominica, West Indies (``Dominica'') violates
section 214 of the Act, and the Commission order under which CWI
and its successor, CW USA, received authorization to operate in
the United States pursuant to section 214.2
II.A. The Section 214 Process
2. Section 214 of the Act requires carriers to secure
certification from the Commission before constructing or
operating interstate or international communications lines.3
Section 214 provides, in pertinent part, that:
[n]o carrier shall . . . acquire or operate any line, or
extension thereof, or shall engage in transmission over or
by means of such additional or extended line, unless and
until there shall first have been obtained from the
Commission a certificate that the present or future public
convenience and necessity require or will require the . . .
operation[ ] of such additional or extended line . . . .4
The Commission may attach to the issuance of the certificate
terms and conditions that it deems necessary to promote the
public interest.5 This case involves defendants' alleged
violation of a condition in the 1998 Section 214 Order.
II.B. The Parties
3. Marpin provides telecommunications, Internet, and cable
television services in Dominica,6 and operates pursuant to
licenses granted by the government of Dominica.7 Marpin is
organized under the laws of Dominica, and its offices are located
in Dominica.8 Marpin does not claim to provide any
telecommunications services in the United States.9
4. CW USA is a telecommunications carrier, incorporated in
the United States, that is authorized pursuant to section 214 of
the Act to provide facilities-based switched and private line
international telecommunications and international resale service
between the United States and various foreign points, including
Dominica.10 CW USA formerly operated under the name CWI, and the
entity previously known as CWI ceased to exist as a separate
entity prior to the filing of this action.11
5. CW USA is an indirect, wholly-owned subsidiary of CW
plc, which is a corporation organized under the laws of England
and Wales.12 CW plc does not operate any communications
facilities in the United States, and does not hold any
authorization to offer service in the United States pursuant to
section 214 of the Act.13
6. CW USA and CW plc are affiliates of a company known as
Cable & Wireless Dominica Limited (``CW Dominica''), which is not
a party to this action.14 CW Dominica is the dominant
telecommunications carrier in Dominica.15 CW plc indirectly owns
80 percent of CW Dominica, and the Government of Dominica owns
the remaining 20 percent.16 CW USA is a horizontal affiliate of
7. The 1998 Section 214 Order granted CWI (before it
operated under the name CW USA) authorization under section 214
to offer facilities-based switched and private line service and
non-interconnected resold private line services between the
United States and Dominica.18 The 1998 Section 214 Order also
granted CWI authority to provide service between the United
States and a number of international locations in addition to
Dominica, including Jamaica, and St. Kitts and Nevis.19 The
International Bureau specifically conditioned such authority on
CWI and its affiliates in Jamaica, and St. Kitts and Nevis ``not
engaging in anticompetitive actions that will give the applicants
an unfair advantage in the U.S. international services
market.''20 On January 10, 2002, after Marpin initiated this
action, the Commission's International Bureau released a
subsequent order granting CW USA authority under section 214 to
provide facilities-based and resale telecommunications service
between the United States and all international points except
China, Jamaica, Maldives, Russia, St. Kitts and Nevis,
Seychelles, Vanuatu and Yemen.21
II.C. The Instant Proceeding
8. Marpin claims that defendants' failure to restrain the
allegedly anticompetitive activities of non-party CW Dominica in
Dominica constitutes a violation of the terms and conditions of
CW USA's section 214 authorization.22 In particular, Marpin
maintains that defendants have unlawfully failed to prevent CW
Dominica from ``endeavor[ing] to retain its monopoly status in
Dominica in defiance of local law by refusing to interconnect its
facilities with Marpin, challenging Marpin's operating authority,
and terminating Marpin's access to international and local
service without cause.''23 Marpin alleges that this
anticompetitive conduct by non-party CW Dominica in Dominica has
impeded Marpin's efforts to offer competing telecommunications
service in Dominica.24 Marpin also asserts that these
anticompetitive actions have adversely affected domestic
communications within Dominica, and international communications
between Dominica and the United States.25 Marpin asks the
Commission to enter orders declaring the defendants to be in
violation of section 214; revoking CW USA's section 214 authority
to provide service between Dominica and the United States;
imposing monetary forfeitures on CW USA; and awarding monetary
damages to Marpin in excess of $3.2 million.26
9. CW USA answered the Complaint, denying the violations
alleged by Marpin and advancing various affirmative defenses. No
answer was filed on behalf of CWI or CW plc. CW USA's answer
stated that CWI has operated as CW USA during all relevant times,
and that CW plc is not a common carrier subject to the complaint
procedures of sections 206 and 208 of the Act.27 CW plc did,
however, jointly file with CW USA a motion to dismiss the
complaint challenging the Commission's personal jurisdiction over
CW plc and its subject matter jurisdiction over this action.28
III.A. Marpin Cannot Establish That CW USA Violated
10. Marpin alleges no affirmative anticompetitive conduct
by CW USA. Rather, Marpin contends only that CW USA's failure to
restrain CW Dominica's alleged misconduct in Dominica violates
two provisions of the 1998 Section 214 Order. Specifically,
Marpin argues that CW USA has violated paragraph 19 of the order,
which, according to Marpin, contains a prohibition of any
anticompetitive conduct by CWI (CW USA's predecessor) and any of
its foreign affiliates that adversely affects U.S. carriers and
their customers.29 In addition, Marpin maintains that CW USA has
violated the order's prohibition against accepting ``special
concessions'' in violation of section 63.14 of our rules.30
11. The International Bureau included paragraph 19 in that
Order in response to a petition by Sprint Communications Company,
L.P. (``Sprint'') that opposed granting CWI authority to provide
service on the U.S.-Jamaica and U.S.-St. Kitts and Nevis routes.
Specifically, Sprint argued that past anticompetitive behavior by
CWI's monopoly affiliates Cable & Wireless Jamaica, Ltd.
(``CWJ'') and St. Kitts and Nevis Telecommunications, Ltd.
(``SKANTEL'') rendered it highly likely that they, together with
CWI, would engage in future conduct posing a ``very high risk''
to competition.31 In response to these complaints, the Bureau
imposed the following condition on CWI's authorization to provide
service in the United States:
In light of the continuing unresolved
disputes between Sprint and CWJ, and the
apparent delay in SKANTEL's initiation of
return traffic to Sprint, we condition grant
of this authority expressly on the
applicants, SKANTEL and CWJ not engaging in
anticompetitive actions that will give the
applicants an unfair advantage in the U.S.
international services market. If we find
evidence of such anticompetitive conduct, we
reserve the right to impose substantial
forfeitures or suspend or terminate this
authorization for failure to meet the
conditions of the grant.32
12. According to Marpin, the above language ``expressly
placed CWI on notice that anticompetitive conduct by its foreign
affiliates outside the United States which adversely affects the
U.S. international service market could result in substantial
forfeitures and termination of its license.''33 CW USA disputes
that the condition stated in paragraph 19 applies to the conduct
of CWI and any foreign affiliate. Rather, CW USA contends that
the condition applies exclusively to the conduct of CW USA and
its foreign affiliates in Jamaica and St. Kitts and Nevis.34
13. We agree with CW USA. We conclude that paragraph 19,
when read in the context of the entire order, compels the
conclusion that the paragraph's conditions apply only to CWI (and
successor CW USA) and to the two foreign affiliates named in that
paragraph (SKANTEL and CWJ) with respect to their activities in
Jamaica and St. Kitts and Nevis - not to all foreign affiliates
or all foreign countries as Marpin contends. As the order makes
clear, paragraph 19 directly addressed allegations by Sprint
regarding the conduct of CWJ and Skantel. Notably, Sprint did
not seek to deny CWI authority to operate on routes between the
United States and all foreign countries in which a CWI affiliate
was the dominant carrier. Sprint's petition pertained
exclusively to the U.S.-Jamaica and U.S.-St. Kitts and Nevis
routes and specifically alleged that the conduct of CWI's
affiliates in those countries harmed Sprint.35 Instead of
denying CWI authorization on those routes, as Sprint had urged,
the 1998 Section 214 Order conditioned the grant of section 214
authority. Moreover, we note that the International Bureau
specifically rejected AT&T's request that the Bureau impose
special conditions on CWI's provision of service to all of the
affiliated routes addressed in the 1998 Section 214 Order.36
Thus, we read the 1998 Section 214 Order as imposing obligations
only on CWI (and its successor CW USA), CWJ, and Skantel, and
only with respect to Jamaica and St. Kitts and Nevis. Thus,
because behavior with respect to Dominica is at issue here, we
deny the complaint.Even assuming the condition covers Skantel,
CWJ, and CWI outside of Jamaica and St. Kitts and Nevis, Marpin
does not allege that Skantel or CWJ have engaged in any
anticompetitive actions. As to CW USA (formerly CWI), Marpin
alleges no affirmative anticompetitive conduct, but merely a
failure to prevent CW Dominica's allegedly anticompetitive
conduct. Nothing in the record suggests that CW USA participated
in the conduct of CW Dominica. We will not find on this record
that the alleged lack of action by CW USA constitutes ``engaging
in anticompetitive actions'' in violation of the 1998 Section 214
Order. We therefore find that CW USA has not violated the 1998
Section 214 Order.
14. We reject Marpin's assertion that the construction of
paragraph 19 that we apply here gives CW USA's foreign affiliates
``free reign to engage in market abuses adversely affecting U.S.
carriers and their customers.''37 Our rules provide safeguards
against market abuses on U.S. international routes that exist
separate and apart from any special conditions of CW USA's
existing section 214 authorization.38 In addition, we note that
CW USA is classified as a dominant carrier with respect to a
number of international routes, including the U.S.-Dominica
route.39 Therefore, it also is subject on these routes to the
structural safeguards and reporting requirements applicable to
dominant carriers.40 Marpin does not allege that CW USA has
violated any of these regulatory safeguards, with the exception
of section 63.14 of our rules41 and, as discussed below, Marpin
has failed to offer any proof in support of its section 63.14
claim. Nor has Marpin presented any facts that lead us to
conclude that these safeguards, together with the specific
conditions on CW USA's section 214 authorization, are
insufficient to protect against harm to competition on U.S.
international routes resulting from potential market abuses by CW
USA's foreign affiliates.
15. Marpin also alleges that CW USA violated the 1998
Section 214 Order by accepting a special concession in
contravention of 47 C.F.R. § 63.14. This claim, too, must fail.
As Marpin correctly notes,42 the 1998 Section 214 Order expressly
prohibited CWI from accepting ``special concessions,'' as defined
in 47 C.F.R. § 63.14 (b), from its affiliated foreign carriers in
any market, including Dominica, for which CWI is subject to
dominant carrier regulation.43 Section 63.14(b) defines
``special concession'' as ``an exclusive arrangement involving
services, facilities, or functions on the foreign end of a U.S.
international route that are necessary for the provision of basic
telecommunications services where the arrangement is not offered
to similarly situated U.S.-licensed carriers and involves: (1)
Operating agreements for the provision of basic services; (2)
Distribution arrangements or interconnection arrangements . . .
or (3) Any information, prior to public disclosure, about a
foreign carrier's basic network services that affects either the
provision of basic or enhanced services or interconnection to the
foreign country's domestic network by U.S. carriers or their U.S.
16. Marpin's claim under section 63.14 rests entirely on
its argument that defendants have violated the special
concessions rule ``to the extent they benefit indirectly from CW-
Dominica's anticompetitive practices and do not disclose to U.S.
carriers and customers the blocking of Marpin-related
traffic.''45 This argument fails to allege the essential
elements of a claim under section 63.14. Marpin has not
identified any ``arrangement'' between CW USA and CW Dominica
that has not been offered to similarly situated U.S.-licensed
carriers. Marpin concedes that the alleged misconduct of which
it complains under section 63.14 is the refusal of CW Dominica, a
Dominican carrier, to interconnect Marpin, also a Dominican
carrier, with U.S. carriers. Marpin contends that CW USA enjoys
"indirect benefits" as a result of this alleged misconduct.46
However, such unspecified indirect "benefits," by themselves, do
not qualify as "an exclusive arrangement" within the meaning of
section 63.14.47 Further, even if access to information about the
blocking of Marpin-related traffic could, under some
circumstances, qualify as a ``special concession,'' as Marpin's
argument implies, Marpin has not even alleged that CW USA had
exclusive access to information about the blocking of Marpin-
related traffic that was unavailable to similarly situated U.S.
carriers. For these reasons, we must deny Marpin's claim that CW
USA has violated the conditions of its section 214 authorization
by accepting a special concession prohibited under 47 C.F.R §
III.B. Marpin Has Failed to Establish that CW plc
Violated Section 214.
17. Marpin alleges that CW plc has violated the terms and
conditions of the section 214 authorization held by CW USA.49
Marpin acknowledges that CW plc neither operates any
communications facilities in the United States, nor holds any
authorization to provide service pursuant to section 214 of the
Act.50 Marpin therefore does not contend that CW plc has
violated the terms and conditions of any section 214
authorization issued to CW plc. Rather, Marpin's allegations
against CW plc for violating section 214 are entirely derivative
of its claims against CW USA. Thus, because Marpin has not
established any violation of CW USA's section 214 authorization,
Marpin's claims against CW plc cannot stand.51
18. We conclude that Marpin has failed to allege facts
sufficient to support its claims that CW USA and CW plc violated
section 214 of the Act, or the terms and conditions of the order
under which CW USA received authorization to operate pursuant to
section 214. Consequently, we deny Marpin's claims against CW
USA and CW plc in their entirety.52
V. ORDERING CLAUSES
19. ACCORDINGLY, IT IS ORDERED, pursuant to sections 1,
4(i), 4(j), and 214 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 151, 154(i), 154(j), and 214, that the
Complaint filed by Marpin Telecoms and Broadcasting Company
Limited against Cable & Wireless, Inc., Cable & Wireless, USA,
Inc., and Cable & Wireless, plc IS DENIED in its entirety, and
this proceeding is TERMINATED WITH PREJUDICE.
20. IT IS FURTHER ORDERED, that the Motion for Summary
Judgment or, in the Alternative, to Compel, filed on September 4,
2001, and the Joint Motion to Dismiss of Cable & Wireless USA,
Inc. and Cable & Wireless plc, filed on September 6, 2001, ARE
DENIED as moot.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
1 47 U.S.C. § 208. Formal Complaint, File No. EB-01-MD-015
(filed Aug. 9, 2001) (``Complaint''). Although the Complaint
states that Marpin initiated this action pursuant to section 206
(47 U.S.C. § 206), rather than section 208, of the Act, Complaint
at 1, we have treated this as an action pursuant to section 208
from the outset, and will continue to do so in this order. See
Notice of Formal Complaint, File No. EB-01-MD-015 (dated Aug. 15,
2 47 U.S.C. § 214; Cable & Wireless, Inc., Order,
Authorization and Certificate, 13 FCC Rcd 17933 (Int. Bur. 1998)
(``1998 Section 214 Order''). Marpin's claim that defendants
violated the terms and conditions of the 1998 Section 214 Order
is the only violation of section 214 that Marpin alleges in this
cases. Accordingly, we treat Marpin's claim that defendants
violated section 214, and Marpin's claim that defendants violated
the 1998 Section 214 Order, as the same claim.
3 See, e.g., Atlantic Tele-Network, Inc. v. FCC, 59 F.3d
1384, 1386 (D.C. Cir.1995).
4 47 U.S.C. § 214(a).
5 47 U.S.C. § 214(c).
6 Complaint at 2, ¶ 2; C&W USA's Verified Answer to
Marpin's Verified Complaint, File No. EB-01-MD-015 (filed Aug.
29, 2001) (``Answer'') at 12, ¶ 2.
7 Revised Joint Statement of Stipulated Facts, Disputed
Facts and Key Legal Issues, File No. EB-01-MD-015 (filed Oct. 29,
2001) (``Joint Statement'') at 9, ¶¶ 30-32.
8 Joint Statement at 9, ¶ 29; Complaint at 2, ¶ 1; Answer
at 12, ¶¶ 1, 2.
9 See generally, Complaint at 2, ¶¶ 1, 2.
10 Complaint at 3, ¶ 4; Answer at 13, ¶ 4.
11 Joint Statement at 6, ¶¶ 15-18; Opening Brief, File No. EB-
01-MD-015 (filed Dec. 10, 2001) (``Marpin Brief'') at 3. CW USA
currently holds all licenses and authorizations previously held
by CWI. Answer at 13, ¶ 4. See Marpin Brief at 3. Accordingly,
we refer to CWI and its successor CW USA collectively as ``CW
USA'' in discussing Marpin's allegations in this case. We refer
to ``CWI'' individually, only when quoting or paraphrasing
orders, pleadings, or briefs that refer to CWI individually.
12 Complaint at 2, ¶ 3; Answer at 12, ¶ 3; Joint Statement at
3, ¶ 2. CW USA is an ``indirect'' wholly-owned subsidiary
because it is wholly-owned by another company that is ultimately
wholly-owned by CW plc through a chain of subsidiary
corporations. Joint Statement at 3, ¶ 4.
13 Answer at 13, ¶ 4; Marpin Brief at 4.
14 Joint Statement at 3, ¶¶ 3-4.
15 Complaint at 5, ¶ 10. See 1998 Section 214 Order, 13 FCC
Rcd at 17933-34, ¶ ¶ 1, 23-24 and International Authorizations
Granted, Public Notice, DA No. 02-46, 2002 WL 24115 (Int. Bur.)
(rel. Jan. 10, 2002) (``2002 Section 214 Public Notice'')(grant
of consolidated limited global section 214 authority), recon.
pending, which classify CW USA as a dominant carrier on the route
between the United States and Dominica.
16 Joint Statement at 3, ¶ 4.
17 Joint Statement at 3, ¶ 3. CW USA is a ``horizontal''
affiliate of CW Dominica because both companies are indirect,
commonly-controlled subsidiaries of CW plc. Id. at ¶¶ 1, 3, 4.
18 1998 Section 214 Order, 13 FCC Rcd at 17933, ¶ 1.
19 1998 Section 214 Order, 13 FCC Rcd at 17933, ¶ 1.
20 1998 Section 214 Order, 13 FCC Rcd at 17937-38, ¶ 19.
21 2002 Section 214 Public Notice, 2002 WL 24115.
22 Complaint at ¶ 7, 13; at 8, ¶ 15; at 23-24, ¶ 56; at 24-25,
¶ 58; See Reply, File No. EB-01-MD-015 (filed Sept. 4, 2001)
(``Reply'') at ¶ 23 (noting that ``the entire focus of Marpin's
Complaint is the violation of U.S. Defendants' Section 214
authorizations by all three Defendants'').
23 Complaint at 7, ¶ 13. More specifically, Marpin alleges
that CW Dominica has: (1) terminated a toll free number service
that Marpin used to provide Internet access locally, Complaint at
8-10, ¶¶ 16-22 (Count 1); Marpin Brief at 14-15; (2) refused to
interconnect CW Dominica's local customers and Marpin's
international service, or to terminate international long
distance traffic on Marpin's facilities, and attempted to disrupt
Marpin's international service arrangement with MCI WorldCom,
Complaint at 10, ¶ 23 (Count 2); Marpin Brief at 15; (3) turned
off local exchange connections that CW Dominica previously had
provided to Marpin for the provisioning of local service,
Complaint at 11-16, ¶¶ 24-34 (Count 3); Marpin Brief at 15; (4)
refused to interconnect the Marpin and CW Dominica networks, or
to provide connectivity to an eastern Caribbean regional fiber
network that would allow connections to MCI WorldCom's exchange
facilities in the United States, and has entered into an
agreement with the Government of Dominica and other Caribbean
nations that bars Marpin from delivering international traffic to
or from CW Dominica customers for a prescribed period of time,
Complaint at 16-21, ¶¶ 35-50 (Count 4); Marpin Brief at 15; and
(5) refused to allocate to Marpin new central office codes
required for the provisioning of telecommunications service,
Complaint at 21-22, ¶¶ 51-53 (Count 5); Marpin Brief at 15-16.
24 Complaint at 22-23, ¶ 54.
25 Complaint at 7, ¶ 14; at 10, ¶ 21; Marpin Brief at 16;
Letter from Eric Fishman, counsel for Marpin, to Lisa J. Saks,
Attorney, Market Dispute Resolution Division, Enforcement Bureau,
File No. EB-01-MD-015 (filed Jan. 18, 2002) (clarifying argument
made on page 16 of Marpin Brief).
26 Complaint at 26-27, ¶¶ 62, 63. Marpin requested, pursuant
to section 1.722(c)(2) of the formal complaint rules, that the
Commission determine damages in a separate proceeding following
its determination of liability and prospective relief. 47 C.F.R.
§ 1.722(c)(2); Complaint at 27, ¶ 63 (mistakenly identifying the
applicable rule as ``§ 1.722(b)(2)'').
27 Answer at 1, n.1. See id. at 6-7, ¶¶ 1-5.
28 Joint Motion to Dismiss of Cable & Wireless USA, Inc. and
Cable & Wireless, plc, File No. EB-01-MD-015 (filed Sept. 6,
2001) (``Joint Motion to Dismiss'').
29 Complaint at 24-25, ¶ 58; Reply at ¶ 28; Marpin Brief at ii,
30 47 C.F.R. § 63.14. Marpin Brief at 18.
31 1998 Section 214 Order, 13 FCC Rcd at 17937-38, ¶ 10.
32 1998 Section 214 Order, 13 FCC Rcd at 17941-42, ¶ 19
(footnotes omitted) (emphasis added).
33 Marpin Brief at 17 (citing 1998 Section 214 Order, 13 FCC
Rcd at 179341-42, ¶ 19); see Reply at ¶ 28.
34 CW USA Brief at 10 (quoting 1998 Section 214 Order, 13 FCC
Rcd at 17947, ¶ 38 (emphasis added by CW USA)).
35 1998 Section 214 Order, 13 FCC Rcd at 17935, ¶ 5.
36 See 13 FCC Rcd at 17938, ¶ 12. AT&T had argued that such
conditions were warranted because the Commission's dominant
carrier rules and safeguards were ``not sufficient to reduce the
risk that CWI will distort competition on the routes it seeks to
serve.'' Id. The International Bureau, however, concluded that
there was ``no basis'' to impose the conditions that AT&T
requested, finding that the Commission's regulatory safeguards
and enforcement authority would be sufficient to detect and deter
anticompetitive conduct by CWI and its foreign affiliates. 1998
Section 214 Order, 13 FCC Rcd at 17941, ¶ 18. We note also that
in the 2002 Section 214 Public Notice, the International Bureau
granted CW USA authority to provide service between the United
States and all international points, with the exception of five
specific locations that include Jamaica and St. Kitts and Nevis.
The Bureau's decision to treat CW USA's service to Dominica under
a grant of global operating authority, while continuing to
subject CW USA to the terms and conditions of the 1998 Section
214 Order with respect to service to Jamaica and St. Kitts and
Nevis, demonstrates that the Bureau continued to find unnecessary
special conditions related to other affiliated routes, including
37 Reply at ¶ 28.
38 See, e.g., 47 C.F.R § 63.14 (prohibiting U.S. carriers from
accepting special concessions from foreign carriers with market
power) and 47 C.F.R § 63.21(g) (allowing the Commission to impose
additional requirements on U.S. international carriers where harm
to competition is occurring on U.S. international routes).
39 1998 Section 214 Order, 13 FCC Rcd at 17933-34, ¶ 1;
2002 Section 214 Public Notice, 2002 WL 24115.
40 See 47 C.F.R. § 63.10(c).
41 47 C.F.R. § 63.14.
42 Complaint at 7, ¶ 12(e).
43 1998 Section 214 Order, 13 FCC Rcd at 17947, ¶ 37.
44 47 C.F.R. § 63.14(b) (emphasis added).
45 Marpin Brief at 18 (emphasis added).
47 See 47 C.F.R. § 63.14(b); see also supra para. 15.
48 In its brief, Marpin asserted for the first time that the
conduct described in the Complaint also violated sections 201 and
202 of the Act. Marpin Brief at 18. The Complaint did not
allege violations of section 201 or section 202, and Marpin
devoted only one half page of its brief to these alleged
violations. Marpin Brief at 18. As a result, the record
provides an inadequate basis for us to assess the merits of
Marpin's section 201 and 202 claims. See, e.g., AT&T Corp. v.
Jefferson Telephone Co., Memorandum Opinion and Order, 16 FCC Rcd
16130, 16133 n.18 (2001); Consumer.Net v. AT&T Corp., Order, 15
FCC Rcd 281, 300, ¶ 40 n.93 (1999) (declining to consider an
argument raised for the first time in the briefs). Cf., Building
Owners and Managers Ass'n Int'l v. FCC, 254 F.3d 89, 100 n.14
(D.C. Cir. 2001) (declining to address an issue raised cursorily
in the brief).
49 Complaint at 7, ¶ 13; at 8, ¶ 15; at 23-24, ¶ 56; at 24-25,
¶ 58; Reply at ¶ 23 (noting that ``the entire focus of Marpin's
Complaint is the violation of the U.S. Defendants' section 214
authorizations by all three Defendants'')
50 Answer at ¶ II (A) (4); Marpin Brief at 4.
51 We therefore find it unnecessary to reach the separate
question of whether the Commission has personal jurisdiction over
CW plc. We conclude that, even assuming jurisdiction exists,
Marpin cannot establish that CW plc violated section 214 of the
Act or CW USA's section 214 authorization.
52 Marpin moved for summary judgment against CWI and CW plc
based on their failure to answer the Complaint or, in the
alternative, to compel the defendants to answer fully the
allegations in the Complaint. Motion for Summary Judgment or, in
the Alternative, to Compel, File No. EB-01-MD-015 (filed Sept. 4,
2001). Since filing that motion, Marpin has conceded that ``CWI
no longer exists separate from CWUSA,'' Marpin Brief at 3, and
has stated that it ``sees no need for an exercise of separate
jurisdiction over CWI'' as long as CW USA ``is held fully
responsible for the actions of CWI and for the production of
documents formerly in the possession of CWI,'' id. Consequently,
we consider Marpin's request for summary judgment against CWI to
be withdrawn. In any event, we deny the Motion for Summary
Judgment as moot because, as discussed above, even assuming the
facts alleged by Marpin are true, we find that Marpin cannot
establish a violation of section 214 or CW USA's section 214
authorization by CW USA, its predecessor CWI, or its indirect
parent CW plc. Moreover, because we deny the Complaint based on
Marpin's failure to establish that any of the defendants violated
section 214 or CW USA's section 214 authorization, we need not
address the additional grounds for dismissal that CW USA and CW
plc raised in the Joint Motion to Dismiss. In addition, we deny
as moot Marpin's two letter requests for leave to supplement the
exhibits to the Marpin Brief. Letter from Eric Fishman, counsel
for Marpin, to Lisa J. Saks, Attorney, Market Dispute Resolution
Division, Enforcement Bureau, File No. EB-01-MD-015 (filed Feb.
22, 2002); Letter from Eric Fishman, counsel for Marpin, to Lisa
J. Saks, Attorney, Market Dispute Resolution Division,
Enforcement Bureau, File No. EB-01-MD-015 (filed Mar. 7, 2002).