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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
APCC Services, Inc., )
Data Net Systems, LLC )
Davel Communications, Inc. )
Jaroth, Inc. dba Pacific Telemanagement )
Services, and )
Intera Communications Corp., )
)
Complainants, )
)
)
v. ) File No. EB-02-MD-013
)
United Technological Systems, Inc., )
)
Defendant. )
ORDER
Adopted: July 10, 2002 Released: July 10,
2002
By the Deputy Chief, Market Disputes Resolution Division,
Enforcement Bureau:
1. On April 19, 2002, APCC Services, Inc., et al.
(``APCC'' or ``Complainants''), filed with this
Commission a formal complaint against United
Technological Systems, Inc. (``United'') pursuant to
section 208 of the Communications Act of 1934, as
amended (the ``Act'').1 The complaint alleges that
United failed to pay dial-around compensation to
Complainants for certain categories of completed
coinless calls originating from payphones, in violation
of Commission rules and orders.2 United failed to
submit an answer to the complaint or otherwise contact
Commission staff with regard to the proceeding against
it.3
2. During a telephone conference with counsel for
Complainants held on May 23, 2002, Commission staff
indicated that, in light of United's failure to
participate in this proceeding, Complainants must, on
or before July 8, 2002, either withdraw the complaint
(in order to file an informal complaint against United
alleging identical claims), or file a motion for
default judgment, and that a failure to take either of
these steps may result in a dismissal for failure to
prosecute.4 On May 24, 2002, Commission staff sent a
letter to Complainants and United via U.S. mail and by
facsimile restating that Complainants must withdraw
their complaint or file a motion for default judgment
by July 8, 2002, or risk dismissal for failure to
prosecute.5 This directive was repeated one week later
in a separate letter establishing a status conference
to discuss Complainants' options in this matter.6
Despite these warnings, APCC failed to take either of
these steps.
3. It is settled that the Commission will dismiss a
complaint for failure to prosecute when the complainant
has ceased to pursue its complaint in accordance with
the Commission's rules.7 In this case, Complainants
declined to withdraw the complaint or file a motion for
default judgment by the required date, despite a
specific notification from Commission staff that a
failure to act in this manner might result in dismissal
for failure to prosecute. Moreover, Complainants have
not requested additional time within which to pursue
either of these actions.
4. We view Complainants' failure to withdraw the
complaint, or file a motion for default judgment, as an
indication that Complainants do not intend to pursue
their claim in accordance with the Commission's rules.
Under these circumstances, we conclude that dismissal
for failure to prosecute is warranted, and that
termination of this matter will serve the public
interest by eliminating the need for the expenditure of
further time and resources by the Commission.
5. Typically, when the Commission dismisses formal
complaints for failure to prosecute, it does so with
prejudice.8 In this case, however, given that the
complaint was filed merely three months ago, and United
has not participated in this proceeding, we find that
this sanction would be unduly severe. Accordingly, we
dismiss the Complaint without prejudice. In this way,
we balance our need to manage our docket and the public
interest in expeditious resolution of litigation with
insignificant prejudice to defendants from delay.9 We
caution Complainants, however, that, should they refile
a Formal Complaint, future instances of failing to
adhere to our rulings will result in dismissal with
prejudice.
6. Accordingly, IT IS ORDERED, pursuant to sections
1, 4(i), 4(j), 208 and 276 of the Communications Act of
1934, as amended, 47 U.S.C. §§ 151, 154(i), 154(j),
208, and 276, sections 64.1300-64.1320 of the
Commission's rules, 47 C.F.R. §§ 64.1300-64.1320, and
authority delegated by sections 0.111, 0.311, and
1.720-1.736 of the Commission's rules, 47 C.F.R. §§
0.111, 0.311, 1.720-1.736, that the above-captioned
complaint IS DISMISSED WITHOUT PREJUDICE and that this
proceeding IS TERMINATED in its entirety.
FEDERAL COMMUNICATIONS
COMMISSION
Radhika V. Karmarkar
Deputy Chief, Market Disputes
Resolution Division
Enforcement Bureau
_________________________
1 47 U.S.C. § 208.
2 See 47 C.F.R. §§ 64.1300-64.1320. The Commission
promulgated these rules to implement section 276 of the Act,
47 U.S.C. § 276.
3 See APCC Services, Inc. et al. v. United
Technological Systems, Inc., Letter from Warren Firschein,
Attorney, Market Disputes Resolution Division, Enforcement
Bureau, FCC, to Albert H. Kramer and Edward G. Modell,
counsel for Complainants, and S.K. Mohan, President, United
Technological Systems, Inc., File No. EB-02-MD-013 (dated
May 24, 2002).
4 Id.
5 Id. (stating that ``Complainants must, on or
before July 8, 2002 (forty-five (45) days from the date of
this letter), either withdraw the complaint, or file a
motion for default judgment, and that a failure to take
either of these steps may result in a dismissal for failure
to prosecute.'').
6 See APCC Services, Inc. et al. v. United
Technological Systems, Inc., Letter from Warren Firschein,
Attorney, Market Disputes Resolution Division, Enforcement
Bureau, FCC, to Albert H. Kramer and Edward G. Modell,
counsel for Complainants, and S.K. Mohan, President, United
Technological Systems, Inc., File No. EB-02-MD-013 (dated
May 31, 2002).
7 See, e.g, Voice Networks, Inc. v. U S West
Wireless, L.L.C., Order, 16 FCC Rcd 4904 (Enf. Bur. 2001);
Nassau Communications Network, Inc. v. National
Communications Network, Inc., Order, 12 FCC Rcd 15191 (Com.
Car. Bur. 1997); IBEX Ltd. v. New Valley Corporation, Order,
11 FCC Rcd 14387 (Com. Car. Bur. 1996); Cellular Marketing
Inc. v. Houston Cellular Telephone Co., Order, 10 FCC Rcd
8897 (Wireless Bur. 1995).
8 See, e.g, Voice Networks, Inc. v. U S West
Wireless, L.L.C., Order, 16 FCC Rcd 4904, 4906, ¶ 8 (Enf.
Bur. 2001); Nassau Communications Network, Inc. v. National
Communications Network, Inc., Order, 12 FCC Rcd 15191,
15195, ¶ 9 (Com. Car. Bur. 1997); IBEX Ltd. v. New Valley
Corporation, Order, 11 FCC Rcd 14387, 14388, ¶ 4 (Com. Car.
Bur. 1996); Cellular Marketing Inc. v. Houston Cellular
Telephone Co., Order, 10 FCC Rcd 8897, 8898, ¶8 (Wireless
Bur. 1995).
9 See Citizens Utilities Co. v. American Tel. & Tel.
Co., 595 F.2d 1171, 1174 (9th Cir.), cert. denied, 444 U.S.
93 (1979).