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Before the
Federal Communications Commission
Washington, D.C. 20554
Marpin Telecoms and )
Broadcasting Company Limited, )
)
Com- )
plainant, )
) EB-01-MD-015
v. )
)
Cable & Wireless, Inc., Cable & )
Wireless USA, Inc., and Cable & )
Wireless, plc, )
De-
fendants.
ORDER ON RECONSIDERATION
Adopted: January 3, 2003 Released: January 9,
2003
By the Commission:
I. INTRODUCTION
1. In this Order on Reconsideration, we deny a petition
for reconsideration1 filed by Marpin Telecoms and Broadcasting
Company Limited (``Marpin'') pursuant to section 405 of the
Communications Act of 1934, as amended (``Communications Act'' or
``Act'')2 and section 1.106 of the Commission's rules.3 Marpin
seeks reconsideration of the Commission's order4 denying a formal
complaint5 that Marpin filed against Cable & Wireless, Inc.
(``CWI''), Cable & Wireless, USA, Inc. (``CW USA''),6 and Cable &
Wireless, plc (``CW plc'') pursuant to section 208 of the
Communications Act.7 The Commission denied Marpin's Complaint in
its entirety, because Marpin failed as a matter of law to allege
facts sufficient to state the claims it purported to assert.8
2. As grounds for reconsideration, Marpin argues that (1)
in issuing the Order, the Commission failed to follow its own
procedures;9 (2) the Order conflicts with the record;10 and (3)
the Order conflicts with clearly-established legal precedent.11
For the reasons discussed below, we conclude that Marpin's
grounds for reconsideration lack merit and deny the
Reconsideration Petition.
II. BACKGROUND
3. The Order set forth the background of this dispute,
which we incorporate by reference here.12 As discussed in the
Order, Marpin provides telecommunications, Internet, and cable
television services in the Commonwealth of Dominica, West Indies
(``Dominica'') pursuant to licenses granted by the government of
Dominica.13 CW USA is authorized pursuant to section 214 of the
Act to provide international telecommunications services between
the United States and various foreign points, including
Dominica.14 CW USA is an indirect, wholly-owned subsidiary of CW
plc, a corporation organized under the laws of England and Wales
that does not operate any communications facilities in the United
States.15 Non-party CW Dominica, another subsidiary of CW plc,
is the dominant telecommunications carrier in Dominica.16
4. In its Complaint, Marpin alleged that the defendants
violated section 214 of the Act,17 and the terms and conditions
of CW USA's section 214 authorization,18 by failing to restrain
allegedly anticompetitive conduct of non-party CW Dominica in
Dominica.19 Marpin asserted that this allegedly anticompetitive
conduct by CW Dominica has impeded Marpin's efforts to offer
competing telecommunications service in Dominica, and has
adversely affected domestic communications within Dominica, and
international communications between Dominica and the United
States.20
5. The Commission denied the Complaint based on Marpin's
``fail[ure] 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.''21 The
Commission held that, ``even assuming the facts alleged by Marpin
are true ... Marpin cannot establish a violation of section 214
or CW USA's section 214 authorization.''22 Specifically, the
Commission held that the conditions of CW USA's section 214
authorization on which Marpin based its claims imposed
obligations on CW USA only with respect to Jamaica and St. Kitts
and Nevis, and therefore did not apply to conduct in Dominica.23
Further, the Commission found that, even if the conditions in the
section 214 authorization covered conduct by CW USA outside of
Jamaica and St. Kitts and Nevis, Marpin could not establish a
violation of these conditions, because Marpin failed to allege
that CW USA had engaged in any affirmative anticompetitive
conduct, or that CW USA had participated in the allegedly
anticompetitive conduct of CW Dominica.24
III. DISCUSSION
III.A. The Commission Followed Its Procedures.
6. After the parties had filed their initial pleadings
(i.e., a complaint, answer and reply),25 Commission staff
directed the parties to engage in discovery and briefing
regarding only certain jurisdictional issues.26 Following this
briefing, the Commission released the Order concluding that
Marpin's Complaint failed to state a claim and declining,
therefore, to reach the jurisdictional issues.27
7. Marpin contends that the Commission violated Marpin's
due process rights by ruling on the ``merits'' of the Complaint
following discovery and briefing of only the jurisdictional
issues.28 According to Marpin, the staff's ruling allowing
discovery on the jurisdictional issues ``made clear that, if [the
Enforcement Bureau] made an affirmative finding on jurisdiction,
the Bureau would have ordered discovery on the substantive issues
....''29 Marpin argues that the Commission's decision to
``bypass'' the jurisdictional issues and rule on the merits,
without allowing briefing or discovery on the merits, was a
departure from the ``procedural framework'' established by the
staff for this proceeding that fatally ``taints'' the
Commission's entire ruling.30
8. Marpin's due process arguments lack merit. First,
neither discovery nor briefing is a matter of right in all
Commission complaint proceedings,31 and the Bureau's procedural
rulings in this case established no such right, nor any
expectation that discovery and briefing would necessarily be
allowed before any ruling on the merits.32 Indeed, Marpin
concedes that discovery is not a matter of right under the
Commission's formal complaint rules.33 The Commission eliminated
self-executing discovery in 1997.34 That decision comported with
the Commission's adoption of ``fact pleading'' rules - which
require a complainant to know, and to plead, ``the specific facts
necessary to prove its claim at the time of filing'' - instead of
``notice pleading'' rules (used in federal district court) -
which ``anticipate[] the use of discovery to obtain evidence of
the facts to support a complainant's claims.''35 Thus, rather
than mandating discovery in every case, the formal complaint
rules allow the Commission to determine, based on the particular
circumstances, ``[w]hether discovery is necessary and, if so, the
scope, type and schedule for such discovery.''36 As to briefing,
although briefs may be filed as a matter of right in cases in
which discovery is conducted,37 the Commission may limit the
scope of any authorized briefs to certain subjects or issues.38
The status conference order on which Marpin relies merely stated
that the Enforcement Bureau ``deferred ruling'' on Marpin's
interrogatories directed to the merits;39 it did not state that
discovery or briefing on the merits necessarily would be
permitted at some future point.40 Thus, by releasing the Order
when it did, the Commission did not breach any procedural rules
or orders governing the conduct of this proceeding.
9. The Commission has broad discretion to manage cases
brought before it.41 The Commission appropriately exercised this
case management discretion in issuing the Order without first
allowing discovery or briefing on the merits. The Order
concludes that, even assuming the truth of all of the Complaint's
allegations, the Complaint failed to state a claim, i.e., Marpin
``failed to allege facts sufficient to support its claims''
against the defendants.42 Marpin was not entitled under our
rules to seek to cure this facial pleading deficiency through the
discovery process.43 Further, Marpin suffered no unfair
prejudice from the Commission's decision not to order briefing on
the merits. The formal complaint rules require complainants to
make thorough factual and legal presentations in their complaints
and replies.44 Thus, Marpin had two full opportunities to
present its arguments on the merits (i.e., in its 28-page
Complaint and 20-page Reply).
10. Marpin misreads the Order in suggesting that the
Commission unfairly faulted Marpin for failing to prove facts as
to which it was denied discovery.45 Specifically, the
Commission's observation in the Order that ``[n]othing in the
record suggests that CW USA participated in the conduct of CW
Dominica''46 merely underscored the point, made elsewhere in the
Order, that Marpin's pleadings did not even allege - much less
prove - defendants' active involvement in CW Dominica's purported
wrongdoing.47 Similarly, the Commission's observation in the
Order that ``Marpin has not identified any `arrangement' between
CW USA and CW Dominica that has not been offered to similarly
situated U.S.-licensed carriers'' does not amount to a denial of
Marpin's claim under 47 C.F.R § 63.14 based on a failure of
proof.48 Rather, the Commission made it clear in the sentence
directly preceding the quoted passage that its ruling stemmed
from Marpin's ``fail[ure] to allege the essential elements of a
claim under section 63.14,'' and not a failure to prove such a
claim.49
III.B. The Order Is Consistent with the Record.
11. Marpin contends that the Order conflicts with the
record in two respects. First, according to Marpin, the
Commission erroneously found that Marpin had properly alleged
only that defendants violated the terms and conditions of the
section 214 authorization.50 Marpin asserts that it actually
alleged in its Complaint that defendants violated section 214 of
the Act and ``long-standing Commission policies,'' as well as the
terms and conditions of the section 214 authorization,51 and that
it additionally alleged violations of sections 201 and 202 of the
Act in its brief on jurisdictional issues.52 For the following
reasons, Marpin's contentions lack merit.
12. Regarding the alleged violation of section 214 itself,
in the first paragraph of the Order, the Commission expressly
noted that Marpin had alleged both a violation of section 214 of
the Act and a violation of the section 214 authorization.53
Because the claimed violation of the section 214 authorization
was the only violation of section 214 that Marpin ever had
alleged, however, the Order treated the two claims as
coterminous.54 This approach was fully justified.
13. Regarding the alleged violation of ``long-standing
Commission policies,'' the Commission did not directly address
this claim in the Order because Marpin failed to plead it in the
Complaint. 55 In any event, as discussed below,56 even assuming
that the allegation was sufficiently specific to satisfy the
pleading requirements in our formal complaint rules, we deny this
claim because Marpin is mistaken in concluding that Commission
precedent establishes a policy of penalizing U.S. carriers based
solely on the anticompetitive conduct of their foreign
affiliates.57
14. Regarding the section 201 and 202 allegations, the
Commission did not err in declining to address these allegations,
because Marpin failed to assert them in its initial pleadings,
and raised them for the first time in its brief on
jurisdiction.58 As stated in the Order,59 Marpin's attempt to
assert new legal claims in its brief was plainly barred by our
rules, which require a complaint to include citations to each
statutory provision, order, or rule alleged to be violated,60
together with a ``detailed explanation'' of the manner in which
the alleged violation occurred.61
15. As a second ground for claiming that the Order
conflicts with the record, Marpin contends that the Commission
erroneously concluded that Marpin alleged ``no affirmative
anticompetitive conduct'' by defendants, but only a ``failure to
restrain'' CW Dominica.62 Marpin argues that, ``[b]ecause the
Commission's policy is that a failure by a U.S. Affiliate to
control the anti-competitive activities of its foreign affiliate
is itself anticompetitive conducts [sic], this finding is not
consistent with the record.''63 As discussed below, Marpin
misstates Commission policy. In any event, Marpin's real quarrel
is with the Commission's decision not to characterize defendants'
alleged ``failure to restrain'' CW Dominica's alleged
anticompetitive activities as ``affirmative anticompetitive
conduct.'' Marpin does not dispute the Commission's finding that
Marpin never alleged that defendants directly participated in CW
Dominica's alleged misconduct.64 Accordingly, we find no
``inconsistency'' between the record of Marpin's claims and the
description of those claims in the Order.
III.C. The Order Is Consistent with Commission Precedent.
16. Marpin takes issue with the Order's holding65 that the
conditions contained in paragraph 19 of the section 214
authorization66 imposed obligations on CWI (and its successor, CW
USA) only with respect to Jamaica and St. Kitts and Nevis, not
all foreign affiliates or all foreign countries.67 Marpin's
arguments in this regard duplicate those made in its initial
pleadings and rejected in the Order. We therefore reject them
again here, for the reasons stated in the Order.68
17. One argument merits further mention, however. Marpin
argues that the Commission's construction of paragraph 19 of the
section 214 authorization conflicts with a ``long standing
commitment'' by the Commission ``to take decisive action against
U.S. carriers based on the anticompetitive activities of their
foreign affiliates outside the U.S.''69 Marpin contends that
three FCC orders evidence such a policy70 - the Foreign
Participation Order,71 the KDD America Order, 72 and the
Telmex/Sprint Order.73 Marpin's reliance on these orders is
misplaced.
18. Marpin contends that a Commission policy of taking
action against U.S. carriers based on the misconduct of their
foreign affiliates is evidenced by language in the Foreign
Participation Order affirming the Commission's authority to
revoke a section 214 authorization in cases of ``adjudicated
misconduct.''74 Although the Foreign Participation Order does
affirm the Commission's authority to revoke a U.S. carrier's
section 214 authorization in cases where the U.S. carrier has
engaged in ``adjudicated misconduct''75¾which would include a
violation of the terms of an authorization, the Act, or a
Commission rule or order¾nothing in that order supports Marpin's
theory that the Commission may revoke a U.S. carrier's
authorization based solely on the misconduct of its foreign
affiliate. Because Marpin's complaint does not allege that CW
USA engaged in any ``adjudicated misconduct,'' even with all
asserted facts taken as true, its reliance on the Foreign
Participation Order is unavailing.
19. In the KDD America Order, the International Bureau
granted KDD America's section 214 authorization to resell certain
private lines services, after finding that U.S. carriers had
``effective competitive opportunities'' to resell such services
in Japan.76 The Bureau reserved the right to ``revisit'' this
decision if changed circumstances placed the effectiveness of
these competitive opportunities ``in serious doubt.''77 The
Bureau did not, as Marpin suggests, impose a general condition
holding KDD America responsible for any anticompetitive actions
by its Japanese parent company.
20. In the Telmex/Sprint Order, the International Bureau
ordered Telmex/Sprint Communications to show cause why it should
not be found to have violated an existing, specific condition of
its section 214 authorization.78 By contrast, in this case, the
Commission found that the Complaint did not allege a violation of
the terms and conditions of CW USA's section 214 authorization,
even assuming all alleged facts to be true.
21. In sum, the cited orders do not, as Marpin suggests,
establish a general policy of holding section 214 licensees
liable for any anti-competitive conduct by a foreign affiliate
anywhere outside the United States that affects United States
telecommunications. The Order in this case in no way conflicted
with Commission policy, but simply dealt with specific conditions
in the section 214 authorization, which were limited to
anticompetitive conduct by CW USA and two foreign affiliates, CWJ
and Skantel, in Jamaica and St. Kitts and Nevis.79 The
Commission properly construed the section 214 authorization and
concluded, correctly, that Marpin failed to allege a violation of
its conditions. Nothing in the Order or our decision here should
be construed to condone the alleged anticompetitive conduct of CW
Dominica. We believe that under these circumstances competition
policy in Dominica is a matter best left to the Dominican
government and regulator.
IV. ORDERING CLAUSE
22. Accordingly, IT IS ORDERED that, pursuant to sections
1, 4(i), 4(j), 214, and 405 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 151, 154(i), 154(j), 214, and 405, and
section 1.106 of the Commission's rules, 47 C.F.R. § 1.106, that
the Petition for Reconsideration filed by Marpin Telecoms and
Broadcasting Company Limited IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
_________________________
1 Marpin Telecoms and Broadcasting Company, Limited
Petition for Reconsideration, File No. EB-01-MD-015 (filed May
20, 2002) (``Reconsideration Petition'').
2 47 U.S.C. § 405.
3 47 C.F.R. § 1.106.
4 Marpin Telecoms and Broadcasting Company Limited v.
Cable & Wireless, Inc., et al., Memorandum Opinion and Order, 17
FCC Rcd 7601 (2002) (``Order'').
5 Formal Complaint, File No. EB-01-MD-015 (filed Aug. 9,
2001) (``Complaint'').
6 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. Order, 17 FCC Rcd at
7602, ¶ 4 & n.11. Accordingly, as in the Order, we refer to CWI
and its successor CW USA collectively as ``CW USA'' in discussing
Marpin's allegations in this case. Id.
7 47 U.S.C. § 208.
8 Order, 17 FCC Rcd at 7608, ¶ 18. Specifically, the
Order denied Marpin's claims against CW USA and CW plc. Id.
Because the entity formerly known as CWI had merged with CW USA
and ceased to exist as a separate entity prior to the filing of
this action, the Commission did not enter a separate ruling
denying Marpin's claims against CWI. See Order, 17 FCC Rcd at
7602, ¶ 4 & n.11.
9 Reconsideration Petition at 1, 9-13; Reply to
Opposition, File No. EB-01-MD-015 (filed June 11, 2002)
(``Reconsideration Reply'') at 2-5.
10 Reconsideration Petition at 4-9; Reconsideration Reply at 2,
5-6.
11 Reconsideration Petition at 1, 13-17; Reconsideration Reply
at 2, 7-9.
12 Order, 17 FCC Rcd at 7602-04, ¶¶ 2-9.
13 Order, 17 FCC Rcd at 7602, ¶ 3.
14 Order, 17 FCC Rcd at 7602, ¶ 4.
15 Order, 17 FCC Rcd at 7602-03, ¶ 5.
16 Order, 17 FCC Rcd at 7603, ¶ 6.
17 47 U.S.C. § 214.
18 Cable & Wireless, Inc., Order, Authorization and
Certificate, 13 FCC Rcd 17933 (Int. Bur. 1998) (``section 214
authorization'' or ``1998 Section 214 Order'').
19 Order, 17 FCC Rcd at 7603, ¶ 8 & n.22.
20 Order, 17 FCC Rcd at 7603-04, ¶ 8 & nn. 24, 25.
21 Order, 17 FCC Rcd at 7608, ¶ 18.
22 Order, 17 FCC Rcd at 7608 n.52 (emphasis added).
23 Order, 17 FCC Rcd at 7605-06, ¶ 13.
24 Order, 17 FCC Rcd at 7605-06, ¶ 13.
25 See 47 C.F.R. §§ 1.721, 1.724, and 1.726.
26 Letter from David A. Strickland, Attorney, Market Disputes
Resolution Division, Enforcement Bureau, to Eric Fishman, counsel
for Marpin, and Robert L. Pettit, counsel for CW USA and CW plc,
File No. EB-01-MD-015 (rel. Sept. 25, 2001) (``Status Conference
Order'') at 2, ¶¶ III.3, III.4; at 4, ¶¶ V.12, V.14.
27 Order, 17 FCC Rcd at 7608, ¶ 18 & n.51.
28 Reconsideration Petition at 1, 9-13; Reconsideration Reply
at 2-5.
29 Reconsideration Petition at 11.
30 Reconsideration Reply at 3.
31 See, e.g., 47 C.F.R. §§ 1.733(a)(5); 1.720 (a); 1.732 (c),
(d).
32 See Status Conference Order.
33 Reconsideration Petition at 10-11; Reconsideration Reply at
4.
34 Implementation of the Telecommunications Act of 1996,
Amendment of Rules Governing Procedures to be Followed When
Formal Complaints are Filed Against Common Carriers, Report and
Order, 12 FCC Rcd 22497, 22547, ¶ 115 (1997) (``Formal Complaints
Order'').
35 Formal Complaints Order, 12 FCC Rcd at 22550, ¶ 120. See
id. at 22547, ¶ 115 (stating that the formal complaint rules
require parties to ``exercise diligence in compiling and
submitting facts to support their complaints and answers,'' and
discourage ``reliance on the ... discovery process as a means to
identify or develop information needed to support a complaint or
answer''). See also Implementation of the Telecommunications Act
of 1996, Amendment of Rules Governing Procedures to be Followed
When Formal Complaints are Filed Against Common Carriers, Order
on Reconsideration, 16 FCC Rcd 5681, 5695, ¶ 32 (2001) (``Formal
Complaints Reconsideration Order'') (``Complaints and answers
filed at the Commission ... should not resemble their
counterparts filed in federal courts ... . Instead, if anything,
complaints and answers filed here should resemble a combination
of complaints/answers filed under Fed. R. Civ. P. 8, motions to
dismiss (and oppositions thereto) filed under Fed. R. Civ. P.
12(b), and motions for summary judgment (and oppositions thereto)
filed under Fed. R. Civ. P. 56.'').
36 47 C.F.R. § 1.733(a)(5). See, e.g., 47 C.F.R. § 1.720 (a)
(``Formal complaint proceedings are generally resolved on a
written record consisting of a complaint, answer, and joint
statement of stipulated facts, disputed facts and key legal
issues, along with all associated affidavits, exhibits and other
attachments. Commission proceedings may also require or permit
other written submissions such as briefs, written
interrogatories, and other supplementary documents or
pleadings.'') (emphasis added). See also Formal Complaints
Order, 12 FCC Rcd at 22547, ¶ 115 (amended formal complaint rules
``provide Commission staff with more control over the discovery
process'').
37 47 C.F.R. § 1.732(d). See, e.g., Formal Complaints Order,
12 FCC Rcd at 22606, ¶ 267 (``parties may ... file briefs as a
matter of right in cases in which discovery is conducted'').
38 47 C.F.R. § 1.732(b). See, e.g., Formal Complaints Order,
12 FCC Rcd at 22607, ¶ 270 (``The Commission may limit the scope
of any authorized briefs where appropriate, and set timetables
for the filing of such briefs.'').
39 Status Conference Order at 2.
40 See Status Conference Order. Indeed, even Marpin recognizes
that discovery on the merits would not inevitably have been
ordered, because the Reconsideration Petition asserts that ``had
the Bureau known that the Commission intended to bypass the
jurisdictional issues in this case and rule directly on the
merits, it would have entertained, if not granted, Marpin's
requests for substantive discovery.'' Reconsideration Reply at 3
(emphasis added).
41 See 47 U.S.C. §§ 208 (The Commission shall investigate
complaints under § 208 ``in such manner and by such means as it
shall deem proper''); 154(i) (The Commission may ``perform any
and all acts ... and issue such orders ... as may be necessary in
the execution of its functions''); 154(j) (The Commission may
``conduct its proceedings in such manner as will best conduce to
the proper dispatch of business and to the ends of justice'').
See also High-Tech Furnace Sys., Inc. v F.C.C., 224 F.3d 781, 789
(D.C. Cir. 2000) (Courts view Commission determinations regarding
discovery with ``extreme deference'').
42 Order, 17 FCC Rcd at 7608, ¶ 18 & n.52.
43 See, e.g., 47 C.F.R §§ 1.720(b) (a complaint is required to
``contain facts which, if true, are sufficient to constitute a
violation of the Act or Commission order or regulation''); §
1.721(a)(5) (complaints must contain a ``complete statement of
the facts which, if proven true, would constitute a violation''
of a statutory provision, order, or regulation, ``relevant
affidavits and documentation'' supporting such factual
allegations, and a ``detailed explanation of the manner and time
period'' in which the defendant committed the alleged
violations).
44 47 C.F.R. §§ 1.720, 1.721(a), 1.726(c). See Formal
Complaints Order, 12 FCC Rcd at 22607, ¶ 270 (under the formal
complaint rules, all parties are ``given the opportunity to file
... a complete legal analysis on the issues they deem relevant
with their complaint, answer and any necessary reply'').
45 Reconsideration Petition at 11 (citing Order, 17 FCC Rcd at
7605-06, ¶¶ 13, 14 and 16), 12-13.
46 Order, 17 FCC Rcd at 7606, ¶ 13.
47 Order, 17 FCC Rcd at 7608, ¶ 18.
48 Reconsideration Petition at 11 (quoting Order, 17 FCC Rcd at
7607, ¶ 16).
49 Order, 17 FCC Rcd at 7607, ¶ 16 (emphasis added). Marpin
also misinterprets the Commission's comment in paragraph 14 of
the Order that Marpin had not ``presented any facts''
demonstrating that the safeguards against competitive abuses set
forth in the Commission's rules, and in the conditions of CW
USA's section 214 authorization, were insufficient to protect
``against harm to competition ... by CW USA's foreign
affiliates.'' Reconsideration Petition at 11 (citing Order, 17
FCC Rcd at 7606, ¶ 14). The comment responded to Marpin's
unsupported allegation made in its Reply that the construction of
paragraph 19 of the section 214 authorization adopted by the
Commission would give defendants' foreign affiliates ``free
rein'' to engage in market abuses. 17 FCC Rcd at 7606, ¶ 14. In
any event, such factual support, even if presented, would not
have changed the Commission's construction of paragraph 19, which
was compelled by the plain language of that paragraph, read in
the context of the entire section 214 authorization.
50 Reconsideration Petition at 1, 4-6.
51 Reconsideration Petition at 2.
52 Reconsideration Petition at 6; Reconsideration Reply at 6.
Marpin argues that its jurisdictional brief also identified
``Part 64 of the Commission's rules'' as a legal basis for its
claims. Id. Neither Marpin's pleadings nor brief asserted
claims under ``Part 64'' of the rules, however. The Order did
address Marpin's contention that CW USA violated the terms and
conditions of the section 214 authorization by accepting a
special concession in contravention of 47 C.F.R. § 63.14, which
is included in Part 63 of our rules (not Part 64). See Order, 17
FCC Rcd at 7606-07, ¶¶ 15-16.
53 Order, 17 FCC Rcd at 7601, ¶ 1 (noting that Marpin claimed
that ``the defendants' failure to restrain the allegedly
anticompetitive activities of their affiliate/subsidiary
operating in the Commonwealth of Dominica, West Indies ...
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'').
54 Order, 17 FCC Rcd at 7601 n.2. Marpin's pleadings on
reconsideration, like its original pleadings, also fail to
identify any separate violation of section 214, apart from the
alleged violation of CW USA's section 214 authorization.
55 The formal complaint rules require a complaint to separately
and clearly identify each legal ground on which the complainant's
claims are based. See, e.g., 47 C.F.R §§ 1.723(b) (``Two or more
grounds of complaint ... should be separately stated and
numbered''); 1.720(a) (``Pleadings must be clear, concise and
explicit. All matters concerning a claim ... should be pleaded
fully and with specificity.''); 1.721(a) (5), (6) (complaints
must contain ``[c]itation to the section of the Communications
Act and/or order and/or regulation ... alleged to have been
violated'' and ``legal analysis'' relevant to the complainants'
claims and arguments). To the extent that Marpin intended to
allege a violation of Commission policy as a separate legal
ground for relief, it did not do so in conformity with these
rules. Marpin's Complaint did not allege a violation of
Commission policy as a separate count in the Complaint, and did
not clearly indicate that the assertions concerning ``Commission
policy'' that Marpin included in the Complaint were intended to
state a separate grounds for relief, distinct from the alleged
violation of CW USA's section 214 authorization.
56 See Section III.C., infra.
57 See discussion infra at ¶¶ 17-21.
58 Reconsideration Petition at 6. See Order, 17 FCC Rcd at
7607 n.48.
59 Order, 17 FCC Rcd at 7607 n.48 (citing cases in which the
Commission declined to address issues raised for the first time
in briefs).
60 47 C.F.R § 1.721(a)(4).
61 47 C.F.R § 1.721(a)(5). See, e.g., 47 C.F.R. §§ 1.720;
1.721(a)(6); 1.727(h) (``Amendments or supplements to complaints
to add new claims or requests for relief are prohibited.'').
62 Reconsideration Petition at 6. See Order, 17 FCC Rcd at
7604, ¶ 10; at 7606, ¶ 13.
63 Reconsideration Petition at 6.
64 See, e.g., Reconsideration Petition at 13 (arguing that the
Commission erred in ``refusing to take action against Defendants
on the basis of the anticompetitive activities of their wholly
owned foreign affiliate''); id. at 17 (arguing that Marpin's
Complaint and Reply ``presented dozens of documents supporting
its contentions that Defendants failed to restrain the anti-
competitive conduct of their wholly owned Dominican affiliate'');
Reconsideration Reply at 8 (arguing that defendants ``mistakenly
insist that, in order for the Commission to take corrective
action against a U.S. carrier or its foreign parent, the agency
must make a finding of `affirmative wrongdoing''').
65 Order, 17 FCC Rcd at 7605-06, ¶ 13.
66 Paragraph 19 provides, in pertinent part:
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.
1998 Section 214 Order, 13 FCC Rcd at 17941-42, ¶
19 (footnotes omitted).
67 Reconsideration Petition at 15-16; Reconsideration Reply at
7 n.22.
68 Order, 17 FCC Rcd at 7605-06, ¶ 13.
69 Reconsideration Petition at 7, 13-14.
70 Reconsideration Petition at 7-8; Reconsideration Reply at 8.
71 Rules and Policies on Foreign Participation in the U.S.
Telecommunications Market, Report and Order and Order on
Reconsideration, 12 FCC Rcd 23891 (1997) (``Foreign Participation
Order'').
72 KDD America, Inc., Order, Authorization and Certificate, 11
FCC Rcd 11329 (Intl. Bur. 1996) (``KDD America Order'').
73 Telmex/Sprint Communications, LLC, Order to Show Cause, 13
FCC Rcd 24990 (Intl. Bur. 1998) (``Telmex/Sprint Order'').
74 Reconsideration Petition at 13-14 (citing Foreign
Participation Order, 12 FCC Rcd at 24023, ¶ 295).
75 Foreign Participation Order, 12 FCC Rcd at 24023, ¶ 295.
The Foreign Participation Order also established a rule, codified
as 47 C.F.R. § 63.21(g), enabling the Commission to review a
carrier's authorization and, if warranted, impose additional
requirements where it appears that harm to competition is
occurring on U.S. international routes. Id. at 24023, ¶ 295 &
n.631. As Marpin notes, the 1998 Section 214 Order includes a
citation to 47 C.F.R. § 63.21(g). Reconsideration Reply at 7
(citing 1998 Section 214 Order at 17940-41, ¶ 16). In its
Complaint, however, Marpin did not request that the Commission
impose additional conditions on CW USA's section 214
authorization. Instead, Marpin took the position that the
defendants had violated the existing terms and conditions of the
authorization. Complaint at 26-28, ¶¶ 62-63.
76 KDD America Order, 11 FCC Rcd at 11330, ¶ 1. The Commission
adopted the ``effective competitive opportunities'' (ECO) test in
the Foreign Carrier Entry Order, Market Entry and Regulation of
Foreign?affiliated Entities, Report and Order, 11 FCC Rcd 3873.
(1995); see KDD America Order, 11 FCC Rcd at 11331, ¶ 4
(``Foreign Carrier Entry Order''). The ECO test required, as a
condition of foreign carrier entry into the U. S. market, that
there be no legal or practical restrictions on U. S. carriers'
entry into the foreign carrier's market. See Foreign Carrier
Entry Order, 11 FCC Rcd at 3875-6; ¶¶ 1-3; Foreign Participation
Order, 12 FCC Rcd at 23894-95, ¶ 5. Subsequently, in the Foreign
Participation Order, the Commission replaced the ECO test with an
open entry standard for applicants from World Trade Organization
(``WTO'') Member countries. 12 FCC Rcd at 23896, ¶ 9.
77 KDD America Order, 11 FCC Rcd at 11349, ¶ 46. The Bureau
noted that such doubts could arise, for example, if KDD America's
Japanese parent company were to obtain regulatory approval to
offer additional services in Japan. Id. The Commission retains
the authority to impose additional conditions on an authorization
should the demonstrated need arise. See 47 C.F.R. § 63.21(g).
78 Telmex/Sprint Order, 13 FCC Rcd at 24992-93, ¶ 6. The
Enforcement Bureau issued a Notice of Apparent Liability
(``NAL'') in the matter, which the Bureau later canceled. Telmex
International Ventures USA, Inc., Notice of Apparent Liability
for Forfeiture, 15 FCC Rcd 714 (2000); Telmex International
Ventures USA, Inc., Memorandum Opinion and Order, File No. EB-00-
IH-0040, DA 01-1752 ( rel. July 25, 2001).
79 See Order, 17 FCC Rcd at 7606, ¶ 13.