Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Centennial Communications )
Corp., Centennial )
Communications Puerto Rico, )
Inc., All America Cable & )
Radio, Inc., )
Complainants, ) File No. EB-01-MD-021
Tricom USA, Inc., )
MEMORANDUM OPINION AND ORDER
Adopted: May 23, 2002 Released: May 31, 2002
By the Commission:
In this Memorandum Opinion and Order, we dismiss a formal
complaint that Centennial Communications Corporation
(``Centennial'') and its affiliates Centennial Communications
Puerto Rico, Inc. (``Centennial Puerto Rico'') and All America
Cable & Radio, Inc. (``AACR'') filed against Tricom USA, Inc.
(``Tricom USA'')1 pursuant to section 208 of the Communications
Act of 1934, as amended (``Act'').2 The Complaint alleges, inter
alia, that Tricom USA violated section 63.14(a) of the
Commission's rules3 and sections 201(b), 202(a), and 214 of the
Act4 by accepting from its parent company in the Dominican
Republic (Tricom S.A.) unfairly favorable rates, terms and
conditions concerning interconnection and international call
termination in the Dominican Republic. As explained in detail
below, principles of international comity lead us to dismiss the
Complaint, because the Dominican Republic's telecommunications
regulatory authority - Instituto Dominicano de las
Telecomunicaciones (``INDOTEL'')5 - has either already addressed,
or plans soon to address, all of the significant issues raised in
II.A. The Parties
Centennial is a telecommunications holding company incorporated
in the United States.6 Centennial initiated this action on
``behalf of itself and its affiliates.''7 Two of Centennial's
affiliates are AACR and Centennial Puerto Rico.8
AACR is a British Virgin Islands corporation that is licensed to
provide a full range of telecommunications services within and
from the Dominican Republic,9 including international
telecommunications services from the Dominican Republic.10 AACR
is a subsidiary of All America Cables & Radio, Inc., a Cayman
Islands corporation, of which Centennial owns 70 percent.11
Centennial Puerto Rico is a telecommunications company that is
incorporated in the United States and headquartered in Puerto
Rico.12 It is a wholly-owned subsidiary of Centennial, through
various intermediate subsidiaries.13
Tricom USA is a United States carrier that is licensed, pursuant
to section 214 of the Act,14 to provide international
telecommunications services from the United States to foreign
countries.15 Tricom USA is not a licensed carrier in the
Dominican Republic and does not install, maintain, or operate
telecommunications infrastructure in that country.16 Tricom USA
is a wholly-owned subsidiary of Tricom S.A., a telecommunications
carrier in the Dominican Republic that is not a party to this
action.17 Tricom S.A. provides a full array of
telecommunications services within and from the Dominican
Republic, pursuant to INDOTEL's authorization.18
II.B. This Proceeding
According to the Complaint, Tricom S.A. has supplied AACR with
interconnection capacity in the Dominican Republic since 1995.19
AACR allegedly uses this interconnection capacity to carry calls
to Tricom S.A. subscribers that originate with AACR's domestic
wireless subscribers in the Dominican Republic, or that originate
with callers in other countries, such as the United States.20
The Complaint pleads that AACR and Tricom S.A. first entered into
a letter agreement regarding interconnection in February 1995.21
The agreement allegedly provided that the parties would
interconnect their networks solely for the purpose of terminating
in-coming international traffic from AACR's facilities to Tricom
S.A.'s local exchange network.22 In early 1998, AACR purportedly
asked Tricom S.A. to provide additional circuits for AACR's
growing domestic service, and proposed that the parties enter
into a formal interconnection agreement that would address
additional types of traffic not covered by the 1995 letter
agreement.23 According to the Complaint, Tricom S.A. refused
both requests.24 Although the parties exchanged correspondence
regarding these issues between February 1999 and February 2000,
the Complaint asserts that they failed to reach a resolution.25
In March 2000, Tricom S.A. allegedly presented AACR with a draft
interconnection agreement addressing the termination of all types
of traffic.26 The Complaint avers that AACR refused to sign the
proposed agreement on the ground that it allegedly contained a
discriminatory volume discount provision under which AACR was
required to have 75,000 lines in service before it could obtain
the most favorable pricing on certain calls.27
According to the complaint, in October 2000, Tricom S.A.
provisioned additional circuits for interconnection to AACR;
however, this capacity still was inadequate to meet AACR's
needs.28 In December 2000, AACR allegedly paid Tricom S.A. for
four additional T-1 lines, but Tricom S.A. refused to activate
the lines until AACR signed Tricom S.A.'s draft interconnection
agreement.29 AACR purportedly rejected Tricom S.A.'s proposed
interconnection agreement, and in March 2001, AACR sent Tricom
S.A. its own draft agreement.30 The Complaint asserts that
AACR's draft agreement contained pricing terms that differed
substantially from those proposed by Tricom S.A. Specifically,
AACR's draft agreement allegedly set forth a rate of 1.1 cents
per minute for local termination of international calls to Tricom
S.A. customers, known as the ``international access charge,''31
while Tricom S.A.'s proposed agreement specified an international
access charge of 4.2 cents.32
By May 2001, Tricom S.A. and AACR purportedly had failed to reach
an interconnection agreement, and Tricom S.A. still had not
activated the T-1 lines that AACR purchased in December 2000.33
The Complaint avers that, on May 2, 2001, AACR filed a petition
with INDOTEL asking INDOTEL to intervene in AACR's
interconnection dispute with Tricom S.A.34
The Complaint advances two principal contentions. First, the
Complaint alleges that Tricom S.A. has delayed providing
interconnection capacity to AACR, a competitor in the Dominican
Republic, and that Tricom S.A. does not impose similar capacity
constraints on its affiliate, Tricom USA.35 The Complaint avers
that Tricom S.A.'s failure to provide adequate interconnection
capacity to AACR impeded the complainants' ability to complete
both domestic and international calls to Tricom S.A. subscribers
in the Dominican Republic.36 Second, the Complaint argues that
Tricom S.A.'s practice of charging 4.2 cents to terminate
international calls - allegedly well above the cost of that
service - amounts to preferential treatment of Tricom USA.37
Even if Tricom S.A. charges Tricom USA the same rate of 4.2 cents
that it charges AACR for terminating international calls, the
Complaint maintains that the charge does not represent a true
cost to Tricom USA, because Tricom USA, in effect, pays itself
when it remits payment to its parent.38 The Complaint contends
that because Tricom USA has been free of the capacity constraints
and excessive international call termination costs that Tricom
S.A. has imposed on AACR, Tricom USA unlawfully has accepted
preferential treatment from a foreign carrier in violation of 47
C.F.R. § 63.14(a) and the Section 214 Order,39 and has engaged in
unreasonable and discriminatory practices in violation of 47
U.S.C. §§ 201(b) and 202(a).40
II.C. The Proceeding Before INDOTEL
1. INDOTEL's Authority
Under the Dominican Republic's telecommunications statute,
INDOTEL has ``national jurisdiction'' over the regulation and
control of telecommunications.41 The statute charges INDOTEL
with guaranteeing ``the existence of an effective, fair and
supportable competition in the provision of the public
telecommunication services.''42 INDOTEL has authority, inter
alia, to issue regulations,43 to ``[p]revent or correct
anticompetitive or discriminatory practices . . . ,''44 and to
``[s]ettle . . . disputes that may originate among providers . .
. .''45 Such disputes may include disagreements about the terms
of interconnection.46 Although the statute states that
``[i]nterconnection agreements are to be freely negotiated by the
parties,'' it provides that, in the case of disagreement, INDOTEL
may intervene, at the request of the parties or on the
government's initiative, to establish the conditions of
2. AACR's Petition
The petition that AACR filed with INDOTEL, like the Complaint
before this Commission, charged that Tricom S.A. had engaged in
anticompetitive behavior by denying AACR additional capacity to
interconnect the two companies' networks in the Dominican
Republic. The petition described in detail AACR's alleged
unsuccessful efforts to obtain interconnection capacity from
Tricom S.A. and to agree upon the terms of an interconnection
agreement.48 The petition accused Tricom S.A. of delaying the
completion of a formal interconnection agreement with AACR in
order to avoid providing AACR with capacity that it could use to
compete with Tricom S.A.49 According to the petition, Tricom's
failure to provide additional interconnection capacity had
adversely affected AACR's ability to terminate calls.50
The petition also complained that the rate of 4.2 cents per
minute that Tricom S.A. and other Dominican local operators
charge for local termination of international calls was well
above the rate they charge for local termination of domestic
calls.51 The petition argued that this price differential was
the result of an anticompetitive effort by Tricom S.A. and other
companies that control local termination of calls to ``caus[e]
the international business to operate with a minimum of
profitability.''52 The petition also challenged as
discriminatory Tricom S.A.'s requirement that AACR meet a
threshold of 75,000 lines in service in order to obtain the most
favorable pricing terms on certain calls.53 The petition
acknowledged that the terms that Tricom S.A. sought to include in
the parties' interconnection agreement were ``standard'' terms
for such agreements in the Dominican Republic, but argued that
the standard terms were inappropriate for modern
In the petition's request for relief, AACR asked INDOTEL, inter
alia, to issue an order setting the interconnection terms and
conditions that would govern the AACR-Tricom S.A. relationship;55
to declare that Tricom S.A. had violated DR Law 153 and damaged
AACR by delaying execution of an interconnection agreement;56 to
order Tricom S.A. to activate immediately the T-1 lines that AACR
purchased in December 2000;57 and to impose monetary sanctions on
3. INDOTEL's Rulings
On June 11, 2001, INDOTEL ordered Tricom S.A. to activate the
four T-1 lines that AACR purchased in December 2000.59 Tricom
S.A. complied with that order.60 INDOTEL also ordered the
parties to appear for a hearing on the terms of the AACR-Tricom
S.A. interconnection agreement.61 AACR and Tricom S.A. submitted
further briefs, and INDOTEL held a hearing on June 25, 2001,
during which each side was permitted to present oral argument
concerning the terms of their interconnection agreement.62
On August 21, 2001, INDOTEL ruled on the AACR-Tricom S.A.
dispute.63 INDOTEL concluded, inter alia, that it could not
find, as AACR urged, that Tricom S.A. delayed the execution of an
interconnection agreement between the parties, observing instead
that the ``contract has not been signed because of the
disagreement promoted by both parties . . . .''64 INDOTEL
further ruled that the interconnection terms that AACR claimed
were discriminatory, specifically the 75,000 line threshold and
4.2 cent access charge for termination of international calls,
were standard interconnection terms in the Dominican Republic.65
INDOTEL found that because the interconnection terms that AACR
proposed were different from the standard terms, adopting AACR's
terms would ``introduce distortion in the market,'' 66 and
INDOTEL ordered AACR and Tricom S.A. to sign an interconnection
agreement that does not ``introduce provisions that are
discriminatory . . . .''67 Finally, INDOTEL stated its intention
subsequently to assess the interconnection terms that AACR had
proposed within the framework of new interconnection regulations
and rate regulations that would apply to all carriers.68
AACR filed a petition with INDOTEL seeking reconsideration of
Resolution 053-01 and requesting that INDOTEL set the terms of
the interconnection agreement between AACR and Tricom S.A.69 On
September 13, 2001, INDOTEL issued a decision affirming its
earlier ruling.70 INDOTEL again rejected AACR's claim that
Tricom S.A. improperly had denied AACR access to its network:
[T]he difference existing between AACR and
Tricom [S.A.] . . . has not resulted from
the refusal by Tricom [S.A.] to allow AACR
access to its networks via the corresponding
interconnection contract; but rather the same
has been the consequence of the iron will of
each of the parties to sign the indicated
contract within the terms and conditions
proposed by each of them.71
As for the terms of interconnection, INDOTEL ruled that the
``access charges included by the parties in their interconnection
contract must be the same established in the market.''72 INDOTEL
reiterated its concern that adopting AACR's proposed
interconnection terms could cause ``distortions in the Dominican
telecommunications market'' that may be ``at variance with the
Principle of Non-Discrimination'' established in Dominican law.73
INDOTEL also underscored its intent, in response to the issues
AACR had raised, to initiate a regulatory process aimed at
revising existing regulations dealing with rates and costs of
services.74 In addition, INDOTEL ordered AACR and Tricom S.A. to
enter into an interconnection agreement by no later than
September 21, 2001 that included terms that Tricom S.A.
previously had proposed.75 Neither party appealed this decision
to a Dominican Court, and it now is final.76
On September 21, 2001, Tricom S.A. signed and delivered to AACR
an interconnection agreement containing the terms that INDOTEL
had mandated.77 AACR did not sign the proffered agreement, but
instead attempted, unsuccessfully, to negotiate alternative terms
with Tricom S.A.78 On November 9, 2001, INDOTEL issued a
resolution stating that AACR would be subject to monetary
sanctions under DR Law 153 if AACR refused to sign the
interconnection agreement.79 Ten days later, AACR signed the
interconnection agreement ``under protest.''80 The parties
stipulate that, since executing the interconnection agreement,
they have cooperated with each other regarding provisioning of T-
1 lines, and that neither party accuses the other of failing to
cooperate in either payment for or installation of T-1 lines.81
A.The Doctrine of Comity Permits a Tribunal, in Its
Discretion, to Decline Jurisdiction Over a Matter that
Is Properly Adjudicated in a Foreign Tribunal.
The doctrine of international comity permits a tribunal to
decline to exercise jurisdiction in a case properly adjudicated
in a foreign tribunal.82 Comity reflects the broad concept of
respect among nations.83 It embodies ``the recognition which one
nation allows within its territory to the legislative, executive,
or judicial acts of another nation, having due regard both to
international duty and convenience, and to the rights of its own
citizens, or of other persons who are under the protection of its
laws.''84 As the Commission has noted, such recognition is
entirely discretionary by individual nations.85 Tribunals in the
United States have invoked comity principles in deciding (i)
whether to decline to adjudicate matters based on the pendency or
availability of litigation in a foreign forum;86 (ii) whether to
enforce foreign judgments;87 and (iii) whether to accept the
judgments of foreign tribunals on a cause of action or a
particular issue.88 In general, United States tribunals have
deferred to the proceedings and judgments of foreign tribunals
where the foreign forum afforded the litigants an opportunity for
a full and fair adjudication, and there is no evidence of
partiality, prejudice, or other special circumstances
demonstrating that comity should not apply.89
B.We Apply the Doctrine of Comity and Decline to
Exercise Jurisdiction over the Complaint.
A number of important considerations support a decision to apply
the doctrine of international comity and dismiss this case.
First, the actions at issue here - Tricom S.A.'s alleged delay in
providing interconnection capacity to AACR in the Dominican
Republic, and Tricom S.A.'s allegedly excessive fee for local
termination of international calls - were the subject of the
proceeding before INDOTEL. INDOTEL rejected AACR's claim that
Tricom S.A. denied AACR interconnection, instead concluding that
the parties' interconnection dispute resulted from each side's
insistence on the interconnection terms it had proposed.90
INDOTEL further found that adopting the non-standard pricing
terms proposed by AACR for the Tricom S.A.-AACR relationship,
while leaving the standard terms in place for other Dominican
carriers, would cause distortions in the Dominican
telecommunications market and would conflict with the non-
discrimination provisions of the Dominican telecommunications
law.91 INDOTEL thus declined to adopt AACR's proposed non-
standard pricing terms when it set the terms of the Tricom S.A.-
AACR interconnection agreement. In short, the facts and issues
that INDOTEL addressed are the same ones that this Commission
would have to consider in deciding the instant Complaint.
Second, both parties apparently regard INDOTEL as an appropriate
forum to address AACR's complaints about Tricom S.A.'s alleged
anticompetitive conduct. AACR asked INDOTEL to intervene in its
dispute with Tricom S.A.,92 and Tricom USA consistently has
argued that INDOTEL is the proper forum to decide AACR's
Third, there is no allegation that the proceedings before INDOTEL
in any way were conducted unfairly or in a prejudicial manner.
Indeed, Centennial never disputed Tricom's contention that AACR
had a full and fair opportunity to litigate its claims before
INDOTEL.94 INDOTEL rendered its final decision in this matter
after receiving pleadings and briefs from both sides, holding an
oral hearing, and reviewing AACR's motion for reconsideration of
INDOTEL's initial decision.95 AACR was also accorded the right
to appeal INDOTEL's decision to a Dominican court, although AACR
chose not to exercise that right.96 AACR appears simply to be
unhappy about the result INDOTEL reached.
Fourth, the relevant dealings between AACR and Tricom S.A. all
took place in the Dominican Republic, the witnesses with
knowledge of these facts are located in the Dominican Republic,
and the relevant documents, all of which are written in Spanish,
also are located there. Consequently, from the standpoint of
administrative convenience, INDOTEL is better-equipped to handle
Finally, INDOTEL's announced intention to address AACR's
challenge to the 4.2 cent price that Tricom S.A. (and other
Dominican carriers) charges for local termination of
international calls in an upcoming regulatory proceeding, rather
than in the context of AACR's individual dispute with Tricom
S.A., also weighs against an exercise of jurisdiction here.
INDOTEL chose this regulatory approach based on its concern that
any change in call termination rates ought to apply to all
carriers in the Dominican market, so as to avoid potential price
discrimination and market distortions. We believe that INDOTEL's
desire to avoid a piecemeal approach to these rate issues is
entitled to deference. Accordingly, while we cannot predict the
results of INDOTEL's upcoming regulatory proceedings - and thus
express no view on any actions INDOTEL may take - we believe
that considerations of international comity counsel in favor of
our declining to address the merits of AACR's position on
international call termination rates while INDOTEL is in the
process of reviewing these very same issues in the context of a
broader regulatory proceeding.
For the reasons stated above, even though the findings and
conclusions of INDOTEL may be different than those we might have
reached, we conclude that the Complaint filed in this matter
should be dismissed on grounds of international comity.97
INDOTEL has either already addressed, or plans soon to address,
all of the significant issues raised in this Complaint. Thus, we
should not allow complainants to relitigate those issues here.
IV. ORDERING CLAUSES
ACCORDINGLY, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j),
201(b), 202(a), and 214 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 151, 154(i), 154(j), 201(b), 202(a), and
214, and section 63.14(a) of the Commission's rules, 47 C.F.R. §
63.14(a), that the Complaint filed by Centennial Communications
Corp. and its affiliates against Tricom USA, Inc. IS DISMISSED
WITH PREJUDICE, and this proceeding is TERMINATED.
IT IS FURTHER ORDERED that Complainants' Motion to Strike and for
Summary Judgment, filed on October 26, 2001, is denied as moot.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
1 Formal Complaint, File No. EB-01-MD-021 (filed Sept. 4,
2 47 U.S.C. § 208.
3 47 U.S.C. § 63.14(a).
4 47 U.S.C. §§ 201(b), 202(a), 214.
5 Joint Submission, File No. EB-01-MD-021 (filed Nov. 9,
2001) (``Joint Submission'') at 1, ¶ 8.
6 Joint Submission at 1, ¶ 4; Supplement to Joint Submission,
File No. EB-01-MD-021 (filed Jan. 11, 2002) (``Supp. Joint
Submission'') at 9, ¶ 1.
7 Formal Complaint, File No. EB-01-MD-021 (filed Sept. 4,
2001) (``Complaint'') at 1, ¶ 1.
8 Complaint at 2-3, ¶ 4; Joint Submission at 1, ¶ 6; Supp.
Joint Submission at 9, ¶ 5. Although the parties stipulate that
AACR is one of the complainants in this case (Joint Submission
at 1, ¶ 5; Supp. Joint Submission at 9, ¶ 2), they disagree as
to whether Centennial Puerto Rico is a party. Supp. Joint
Submission at 11-12, ¶ 1. Because we dismiss the Complaint, we
need not resolve this issue.
9 Joint Submission at 1, ¶ 6-7; Supp. Joint Submission at 9,
10 Joint Submission at 1-2, ¶ 9.
11 Joint Submission at 1, ¶ 6.
12 Supp. Joint Submission at 9, ¶ 5.
13 Supp. Joint Submission at 9, ¶ 5.
14 47 U.S.C. § 214.
15 Domtel Communications, Inc. Application for Authority to
Provide Direct Service Between the United States and the
Dominican Republic, Memorandum Opinion, Order, Authorization and
Certificate, 10 FCC Rcd 12159 (1995) (``Section 214 Order''), at
¶ 1. Tricom USA formerly operated as Domtel Communications,
Inc. (``Domtel''). Joint Submission at 2, ¶ 11. As the
successor to Domtel, Tricom USA is subject to all of the terms
and conditions of the Section 214 Order. Joint Submission at 2,
¶ 11; Complaint at 3, ¶ 5; Defendant Tricom USA, Inc.'s Answer
to the Complaint of Centennial Communications Corp., Centennial
Communications Puerto Rico, Inc., and All America Cable & Radio,
Inc., File No. EB-01-MD-021 (filed Oct. 13, 2001) (``Answer'')
at 18, ¶ 5.
16 Supp. Joint Submission at 10, ¶ 11.
17 Joint Submission at 2, ¶¶ 13-15. The parties stipulate
that the Commission lacks jurisdiction over Tricom S.A. Joint
Submission at 1, ¶ 1.
18 Joint Submission at 2, ¶ 14. Neither Tricom S.A. nor AACR
appears on the Commission's list of foreign carriers that do not
qualify for the presumption that they lack market power. See 47
C.F.R. § 63.14 (note to paragraph (a)). This list, which is
posted at http://www.fcc.gov.ib, identifies Compania Dominicana
de Telefonos (``Codetel'') as a carrier in the Dominican
Republic that does not qualify for the presumption, but contains
no reference to Tricom S.A. or AACR.
19 Complaint at 12, ¶ 22. In describing the events giving
rise to this action, the Complaint frequently refers to
Centennial and its affiliates collectively as ``Centennial'' and
to Tricom S.A. simply as ``Tricom.'' See, e.g., Complaint at
12-16, ¶¶ 23-34; at 20, ¶ 43. These references are misleading.
Our review of the record establishes that the operative events
took place in the Dominican Republic and involved AACR and
Tricom S.A. Accordingly, in summarizing the Complaint's
allegations, we distinguish between Centennial and AACR and
between Tricom USA and Tricom S. A., even though the Complaint
often does not.
20 Complaint, Exhibit A (Declaration of Jose A. Rizek (``Rizek
Decl.'')) at 2-3, ¶¶ 7-8.
21 Complaint at 12, ¶ 22.
22 Complaint at 12, ¶¶ 22, 23.
23 Complaint at 12, ¶ 23.
24 Complaint at 12, ¶ 23.
25 Complaint, Exhibit A (Rizek Decl.) at 7, ¶¶ 14-15.
26 Complaint at 13-14, ¶ 27; Exhibit A (Rizek Decl.) at 7, ¶
27 Complaint at 13-14, ¶ 27; Exhibit A (Rizek Decl.) at 7, ¶¶
28 Complaint at 12-13, ¶ 24; Exhibit A (Rizek Decl.) at 6-7,
29 Complaint at 13, ¶ 25.
30 Complaint at 14, ¶ 28; Exhibit A (Rizek Decl.) at 8-9, ¶
31 Complaint at 14, ¶ 29; Exhibit A (Rizek Decl.) at 4, ¶ 9;
at 8-9, ¶ 22. The charges referenced here, and throughout this
opinion and order, are in U.S. dollar equivalents.
32 Complaint at 14, ¶ 30.
33 Complaint at 15, ¶ 31; Exhibit A (Rizek Decl.) at 10, ¶¶
34 Complaint at 15, ¶ 31; Exhibit A (Rizek Decl.) at 10, ¶ 25.
Accordingly, the INDOTEL proceeding, which is discussed in
detail below, was pending at the time Complainants commenced the
instant action on September 4, 2001.
35 Complaint at 7-8, ¶¶ 14-15; at 23-24, ¶¶ 49-50.
36 Complaint at 16-18, ¶¶ 35-39.
37 Complaint at 8, ¶ 15; at 24-25, ¶ 52; Centennial
Communications Corp.'s Reply to Affirmative Defenses, File No.
EB-01-MD-021 (filed Oct. 23, 2001) (``Reply'') at 15-17.
According to the Complaint, the 1.1. cent charge is the rate
that all carriers in the Dominican Republic charge for local
termination of domestic traffic. Complaint at 14, ¶ 29; Exhibit
A (Rizek Decl.) at 8-9, ¶ 22; at 15, ¶ 39. The Complaint
maintains that because local termination of international
traffic uses the same resources and involves the same costs as
local termination of domestic traffic, Tricom S.A.'s 4.2 cent
international access charge is excessive. Complaint at 14, ¶
38 Complaint at 8, ¶ 15; at 24-25, ¶ 52; Exhibit A (Rizek
Decl.) at 16, ¶ 42; Reply at 15-17. The Complaint concedes that
complainants do not know what Tricom S.A. charges Tricom USA for
local termination of international calls. Complaint, Exhibit B
(Declaration of Lee L. Selwyn) at 23, ¶ 27.
39 Complaint at 7-9, ¶¶ 14-16; at 22-31, ¶¶ 48-67.
40 Complaint at 32, ¶ 69.
41 Tricom USA, Inc.'s Brief in Response to the Federal
Communications Commission's November 5, 2001 Letter Ruling, File
No. EB-01-MD-021 (filed Nov. 28, 2001) (``Tricom Opening
Brief''), Exhibit 3 (English Translation of Article 76.2 of the
Dominican Republic General Telecommunications Law 153-98 (``DR
Law 153'')). The parties have stipulated to the accuracy of
this translation. Supp. Joint Submission at 4. All citations
to DR Law 153 in this order are to the English translation.
42 Tricom Opening Brief, Exhibit 3 (DR Law 153), Article
43 See, e.g., Tricom Opening Brief, Exhibit 3 (DR Law 153),
Articles 77 (c), 78(a), 78(o).
44 Tricom Opening Brief, Exhibit 3 (DR Law 153), Article
45 Tricom Opening Brief, Exhibit 3 (DR Law 153), Article
46 Tricom Opening Brief, Exhibit 3 (DR Law 153), Article 56.
47 Tricom Opening Brief, Exhibit 3 (DR Law 153), Article 56.
48 Answer, Exhibit 7 (INDOTEL Petition) at 3-7, §§ 1.8-1.19.
49 Answer, Exhibit 7 (INDOTEL Petition) at 3-4, § 1.9
(alleging that Tricom S.A. had shown a ``lack of interest in
formalizing . . . [an interconnection] [a]greement'' because
such an agreement involved ``increasing the market competition
capacity of [AACR]''). See Answer, Exhibit 7 (INDOTEL Petition)
at 4, § 1.11 (alleging that Tricom S.A. had ``refus[ed] to
expand the traffic originating and terminating capacity between
both networks, which prevented [AACR] from fulfilling its
international correspondent undertakings, and offering its
services to customers owning a TRICOM line'').
50 Answer, Exhibit 7 (INDOTEL Petition) at 7, § 1.19 (``calls
originating in our network and intended for TRICOM were being
blocked by limitations on the capacity attributable solely to
TRICOM''). See Answer, Exhibit 7 (INDOTEL Petition) at 8, § 2.1
(AACR was forced to ``request from international companies with
whom [it] hold[s] correspondent relations to abstain from
sending [AACR] calls intended for TRICOM network [sic], due to
the inability to complete them . . .'').
51 Answer, Exhibit 7 (INDOTEL Petition) at 18, § 2.3; Supp.
Joint Submission at 2, ¶ 7 (stipulating that .68 centavos
Dominicanos is equal to 4.2 cents in U.S. currency). See Supp.
Joint Submission at 6, ¶ 9.
52 Answer, Exhibit 7 (INDOTEL Petition) at 18, § 2.3.
53 Answer, Exhibit 7 (INDOTEL Petition) at 16-17, § 2.2; See
Supp. Joint Submission at 6, ¶ 9.
54 Supp. Joint Submission at 5, ¶ 4.
55 Answer, Exhibit 7 (INDOTEL Petition) at 26.
56 Answer, Exhibit 7 (INDOTEL Petition) at 26.
57 Answer, Exhibit 7 (INDOTEL Petition) at 26. See id. at 8,
58 Answer, Exhibit 7 (INDOTEL Petition) at 26.
59 Supp. Joint Submission at 6, ¶ 6; Complaint, Exhibit 20
(INDOTEL Resolution No. 043-01 (``Resolution No. 043-01'')) at
1. The parties have stipulated to the accuracy of an English
translation of Complaint Exhibit 20, which was attached to the
Letter from Karlyn D. Stanley, counsel for complainants, to
Judith O'Neill, counsel for defendant, File No. EB-01-MD-021
(filed Sept. 18, 2001); Supp. Joint Submission at 4, § III. All
citations to Resolution No. 043-01 in this Order are to the
60 Supp. Joint Submission at 6, ¶ 6.
61 Supp. Joint Submission at 6, ¶ 7.
62 Supp. Joint Submission at 6, ¶¶ 7-8.
63 Complaint, Exhibit 24 (INDOTEL Resolution No. 053-01
(``Resolution No. 053-01'')); Supp. Joint Submission at 6, ¶ 9.
The parties have stipulated to the accuracy of an English
translation of Exhibit 24, which was attached to the Letter from
Christopher W. Savage, counsel for complainants, to Lisa Saks,
Market Disputes Resolution Division, Enforcement Bureau, File
No. EB-01-MD-021 (dated Feb. 26, 2002); Supp. Joint Submission
at 4, § III. All citations to Resolution No. 053-01 in this
Order are to the English translation.
64 Complaint, Exhibit 24 (Resolution No. 053-01) at 27.
65 Supp. Joint Submission at 6, ¶ 9. See Complaint, Exhibit
24 (Resolution No. 053-01) at 24-26.
66 Complaint, Exhibit 24 (Resolution No. 053-01) at 25.
67 Complaint, Exhibit 24 (Resolution No. 053-01) at 35; Supp.
Joint Submission at 6, ¶ 9.
68 Complaint, Exhibit 24 (Resolution No. 053-01) at 29; see
id. at 26, 32-33, 37.
69 Supp. Joint Submission at 6, ¶ 10. Shortly after filing
the petition for reconsideration, complainants filed the instant
Complaint on September 4, 2001.
70 Supp. Joint Submission at 6-7, ¶ 11. Answer, Exhibit 1
(INDOTEL Resolution No. 056-01 (``Resolution No. 056-01'')).
Exhibit 1 to the Answer is an English translation of Resolution
No. 056-01, and the parties have stipulated to the accuracy of
the translation. Supp. Joint Submission at 4, § III. All
citations to Resolution No. 056-01 in this Order are to the
71 Answer, Exhibit 1 (Resolution No. 056-01) at 16.
72 Answer, Exhibit 1 (Resolution No. 056-01) at 22.
73 Answer, Exhibit 1 (Resolution No. 056-01) at 11.
74 Answer, Exhibit 1 (Resolution No. 056-01) at 15. INDOTEL
explained that interconnection costs would remain at the market
level until such regulatory revisions occurred. Id.
75 Supp. Joint Submission at 6-7, ¶ 11.
76 Supp. Joint Submission at 8, ¶ 25.
77 Supp. Joint Submission at 7, ¶ 12.
78 Supp. Joint Submission at 7, ¶ 13.
79 Supp. Joint Submission at 7, ¶ 14; Tricom Opening Brief,
Exhibit 5 (INDOTEL Resolution No. 070-01 (``Resolution No. 070-
01'')) at 13. Exhibit 5 to Tricom's Opening Brief is an English
translation of Resolution No. 070-01, and the parties have
stipulated to the accuracy of the translation. Supp. Joint
Submission at 4, § III. All citations to Resolution No. 070-01
in this Order are to the English translation.
80 Supp. Joint Submission at 7, ¶¶ 15-16.
81 Supp. Joint Submission at 9, ¶¶ 6, 27.
82 See, e.g., Bigio v. The Coca Cola Co., 239 F.3d 440, 454
(2d Cir. 2001 ) (remanding a dispute against a United States
defendant over government confiscation of property in Egypt to
district court for a determination of whether to dismiss on
comity grounds.); In re Maxwell Communication Corp., 93 F.3d
1036, 1047 (2d Cir.1996) (affirming dismissal of complaint by
debtor in deference to English bankruptcy proceedings).
83 Enforcement of Other Nations' Prohibitions Against the
Uncompleted Call Signaling Configuration of International Call-
Back Service, FCC 02-28, Notice of Proposed Rulemaking, 2002 WL
226650 (rel. Feb. 13, 2002) (``Call-Back NPRM'') at 2, ¶ 4. See
Hilton v. Guyot, 159 U.S. 113, 163-64 (1895).
84 Hilton v. Guyot, 159 U.S. at 164; Restatement (Third) of
the Foreign Relations Law of the United States, § 101, comment e
85 Call-Back NPRM, 2002 WL 22650 at 2, ¶ 4.
86 Diorinou v. Mezitis, 237 F.3d 133, 138-39 (2d Cir. 2001).
See e.g., Finanz AG Zurich v. Banco Economico S.A., 192 F.3d
240, 246?50 (2d Cir.1999) (affirming dismissal of creditor's
suit against debtor on comity grounds in deference to a pending
liquidation proceeding against the debtor in Brazil); Allstate
Life Ins. Co. v. Linter Group Ltd., 994 F.2d 996, 998-1002 (2d
Cir. 1993), cert. denied, 510 U.S. 945 (1993) (affirming
dismissal of securities action on grounds of comity and forum
non-conveniens in recognition of pending liquidation proceedings
87 Diorinou v. Mezitis, 237 F.3d at 139. See, e.g., Victrix
Steamship Co. v. Salen Dry Cargo A.B., 825 F.2d 709 (2d
Cir.1987) (affirming decision not to enforce a British judgment
against a bankrupt debtor in deference to pending bankruptcy
proceedings in Sweden).
88 Diorinou v. Mezitis, 237 F.3d at 139-40. See, e.g., id. at
142-46 (deferring to Greek court's custody determination on
comity grounds); Alfadda v. Fenn, 966 F. Supp. 1317, 1326
(S.D.N.Y 1997), aff'd on other grounds, 159 F.3d 41(2d Cir.
1998) (recognizing French judgment, as a matter of comity, and
holding that judgment had preclusive effect as to certain
89 Hilton v. Guyot, 159 U.S. at 202-03 (``where there has been
opportunity for a full and fair trial abroad before a court of
competent jurisdiction, conducting the trial upon regular
proceedings, . . . under a system of jurisprudence likely to
secure an impartial administration of justice . . . and there is
nothing to show either prejudice in the court, or in the system
of laws under which it was sitting, or fraud in procuring the
judgment, or any other special reason why the comity of this
nation should not allow [the judgment] full effect, the merits
of the case should not . . . be tried afresh''); Diorinou v.
Mezitis, 237 F.3d at 142-43 (observing that ``American courts
will normally accord considerable deference to foreign
adjudications as a matter of comity'' and that applying the
doctrine of comity ``often entails consideration of the fairness
of a foreign adjudicating system'') (citations omitted); Finanz
AG Zurich v. Banco Economico S.A., 192 F.3d at 246 (``'United
States courts ordinarily refuse to review acts of foreign
governments and defer to proceedings taking place in foreign
countries . . . so long as `the foreign court had proper
jurisdiction and enforcement does not prejudice the rights of
United States citizens or violate domestic public policy.''')
90 See Answer, Exhibit 1 (Resolution No. 056-01) at 16.
91 Complaint, Exhibit 24 (Resolution No. 053-01) at 24-26;
Answer, Exhibit 1 (Resolution No. 056-01) at 11.
92 Answer, Exhibit 7 (INDOTEL Petition); Supp. Joint
Submission at 5, ¶¶ 3, 4.
93 Tricom Opening Brief 12; Answer at 57, 61, 64.
94 See Tricom Opening Brief at 4-5, 12-13, 24-25; Centennial
Communications Corp.'s Supplemental Reply Brief, File No. EB-01-
MD-021 (filed Dec. 19, 2001) at 7-8, 10-14.
95 See Supp. Joint Submission at 6, ¶¶ 7-11.
96 See Supp. Joint Submission at 8, ¶ 25.
97 Complainants filed a Motion to Strike and for Summary
Judgment that sought to strike portions of the Answer based on
Tricom USA's asserted lack of candor in denying knowledge of
certain facts alleged in the Complaint, and argued that striking
that material would entitle complainants to summary judgment.
Centennial's Motion to Strike and for Summary Judgment, File No.
EB-01-MD-021 (filed Oct. 26, 2001). We deny this motion as
moot, because our decision to dismiss this case on grounds of
international comity does not depend in any way upon the
portions of the Answer that are the subject of the motion.