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Before the
Federal Communications Commission
Washington, D.C. 20554
General Communications, Inc.,
)
d/b/a GCI,
)
)
Complainant, File No. EB-03-MD-008
)
)
v. )
)
ACS of Anchorage, Inc., d/b/a
Alaska )
Communications Systems, ACS
Local )
Service, and ACS; ACS of
Fairbanks, )
d/b/a Alaska Communications
Systems, )
ACS Local Service, and ACS; and
ACS of )
Alaska, Inc., d/b/a Alaska
Communications )
Systems, ACS Local Service, and
ACS, )
)
Defendants.
)
ORDER
Adopted: October 15, 2004 Released: October
15, 2004
By the Chief, Market Disputes Resolution Division,
Enforcement Bureau:
On May 1, 2004, General Communications, Inc. d/b/a GCI
(``GCI'') filed with this Commission a formal complaint
against ACS of Anchorage, Inc., d/b/a Alaska Communications
Systems, ACS Local Service, and ACS; ACS of Fairbanks, d/b/a
Alaska Communications Systems, ACS Local Service, and ACS;
and ACS of Alaska, Inc., d/b/a Alaska Communications
Systems, ACS Local Service, and ACS (collectively ``ACS''),
pursuant to sections 201, 202, 251, and 258 of the
Communications Act of 1934, as amended (the ``Act''),1 and
sections 1.720-1.736 of the Commission's rules.2 The
complaint alleges, among other things, that ACS has failed
to comply with the Act and the Commission's rules requiring
the non-discriminatory provisioning of unbundled network
elements and telecommunications services for resale.3
In December 2003, the parties jointly requested that the
Commission defer establishing a further schedule in this
proceeding, because they were actively engaged in settlement
discussions. We granted the parties' request,4 and their
subsequent oral abeyance requests in January and February
2004. In March 2004, the parties reported that they had
settled their dispute and were waiting for the Regulatory
Commission of Alaska to act on matters on which dismissal of
this proceeding is contingent.5 As a result, we granted
their request to hold this proceeding temporarily in
abeyance pending such action.6
On October 7, 2004, the parties filed a Joint Motion to
Dismiss Claims Against ACS of Fairbanks, Inc. and ACS of
Alaska, Inc.; Request to Convert Claims Against ACS of
Anchorage, Inc. to Claims in an Informal Complaint.7 In
their request, the parties report that they have satisfied
the conditions of their settlement relating to ACS of
Fairbanks and ACS of Juneau, and request that the claims in
the Formal Complaint against these entities be dismissed
with prejudice.8 The parties also request that the
remaining claims against ACS of Anchorage in the Formal
Complaint be converted to an informal complaint. They
further request that the filing date of the informal
complaint be deemed May 1, 2003, which is the filing date of
the Formal Complaint, and that the Commission extend the
six-month period within which the informal complaint must be
converted to a formal complaint under sections 1.717-18 of
the Commission's rules, 47 C.F.R. §§ 1.717-18, to January
31, 2005 (the ``Conversion Date'').9 Moreover, the parties
requested that either of the parties, or the Commission on
its own motion, be permitted, upon a showing of good cause,
to move for an extension of the Conversion Date. The
parties also requested that either party be allowed to re-
convert the informal complaint to a formal complaint by
filing and serving a motion requesting such action.10
ACS also requests that the Commission incorporate an
additional safeguard into its conversion order that ``absent
a ruling from the Commission prior to January 31, 2005 that
good cause has been shown either to re-convert the complaint
to a formal complaint or to extend the deadline for re-
converting to a formal complaint, GCI will be deemed to have
abandoned its complaint as to ACS of Anchorage.''11 GCI
objects to this proposed condition because it would make
GCI's right to reinstatement of its formal complaint
contingent upon FCC action.12
Based upon a careful review of the record in this
proceeding, we are satisfied that granting the Joint Motion
will serve the public interest by promoting the efficient
and orderly management and resolution of complaint
proceedings, and by postponing the need for further
litigation and expenditure of further time and resources of
the parties and of this Commission until such time as may
actually be necessary. We are not satisfied, however, that
the additional safeguard requested by ACS is necessary
and/or serves the public interest.
Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j),
and 208 of the Communications Act of 1934, as amended, 47
U.S.C. §§ 154(i), 154(j), and 208, and sections 1.3, 1.716-
18, and 1.720-1.736 of the Commission's rules, 47 C.F.R. §§
1.3, 1.716-18, 1.720-36, and the authority delegated in
sections 0.111 and 0.311 of the Commission's rules, 47
C.F.R. §§ 0.111, 0.311, that the Joint Motion to Dismiss
Claims Against ACS of Fairbanks, Inc. and ACS of Alaska,
Inc.; Request to Convert Claims Against ACS of Anchorage,
Inc. to Claims in an Informal Complaint IS GRANTED to the
extent indicated herein.
IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and
208 of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 154(i), 154(j), and 208, and sections 1.3, 1.716-18, and
1.720-1.736 of the Commission's rules, 47 C.F.R. §§ 1.3,
1.716-18, 1.720-36, and the authority delegated in sections
0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§
0.111, 0.311, that GCI's claims in the Formal Complaint
against ACS of Fairbanks and ACS of Juneau ARE DISMISSED
WITH PREJUDICE.
IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and
208 of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 154(i), 154(j), and 208, and sections 1.3, 1.716-18, and
1.720-1.736 of the Commission's rules, 47 C.F.R. §§ 1.3,
1.716-18, 1.720-36, and the authority delegated in sections
0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§
0.111, 0.311, that GCI's Formal Complaint be converted to an
informal complaint with a designated filing date of May 1,
2003, and that the formal complaint and answer filed in the
above-captioned proceeding satisfy sections 1.716-17 of the
Commission's rules, 47 C.F.R. §§ 1.716-17.
IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and
208 of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 154(i), 154(j), and 208, and sections 1.3, 1.716-18, and
1.720-1.736 of the Commission's rules, 47 C.F.R. §§ 1.3,
1.716-18, 1.720-36, and the authority delegated in sections
0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§
0.111, 0.311, that the file number for the informal
complaint is EB-04-MDIC-0104.
IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and
208 of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 154(i), 154(j), and 208, and sections 1.3, 1.716-18, and
1.720-1.736 of the Commission's rules, 47 C.F.R. §§ 1.3,
1.716-18, 1.720-36, and the authority delegated in sections
0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§
0.111, 0.311, that the docket established in the above-
captioned formal complaint proceeding shall be transferred
in its entirety to the newly established informal complaint
docket.
IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and
208 of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 154(i), 154(j), and 208, and sections 1.3, 1.716-18, and
1.720-1.736 of the Commission's rules, 47 C.F.R. §§ 1.3,
1.716-18, 1.720-36, and the authority delegated in sections
0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§
0.111, 0.311, that the period within which the informal
complaint (EB-04-MDIC-0104) may be converted to a formal
complaint under sections 1.717-18 of the Commission's rules,
47 C.F.R. §§ 1.717-18, shall end on January 31, 2005, unless
extended by further order.
IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and
208 of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 154(i), 154(j), and 208, and sections 1.3, 1.716-18, and
1.720-1.736 of the Commission's rules, 47 C.F.R. §§ 1.3,
1.716-18, 1.720-36, and the authority delegated in sections
0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§
0.111, 0.311, that, on or before January 31, 2005, either
party may move to re-convert the informal complaint (EB-04-
MDIC-0104) to a formal complaint by filing and serving a
motion requesting that the informal complaint proceeding and
its entire docket be re-converted to a formal complaint
proceeding.
IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and
208 of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 154(i), 154(j), and 208, and sections 1.3, 1.716-18, and
1.720-1.736 of the Commission's rules, 47 C.F.R. §§ 1.3,
1.716-18, 1.720-36, and the authority delegated in sections
0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§
0.111, 0.311, that, on or before January 5, 2005, either
party, or the Commission on its own motion, may, upon a
showing of good cause, move for an extension of the January
31, 2005 re-conversion date.
FEDERAL COMMUNICATIONS COMMISSION
Alexander P. Starr
Chief, Market Disputes Resolution
Division
Enforcement Bureau
_________________________
1 47 U.S.C. §§ 201, 202, 251, and 258.
2 47 C.F.R. §§ 1.720-1.736.
3 Formal Complaint, File No. EB-03-MD-008 (filed May 1,
2003) (``Formal Complaint'').
4 Letter dated December 19, 2003 from Anthony J.
DeLaurentis, Attorney, Markets Dispute Resolution Division,
to John T. Nakahata, Counsel for GCI, and Karen Brinkman,
Counsel for ACS, File No. EB-04-MD-008.
5 Joint Request to Hold Proceeding Temporarily In
Abeyance and Joint Motion to Dismiss Complaint, File No.
EB-03-MD-008 (filed Mar.11, 2004).
6 Letter dated March 16, 2004 from Anthony J.
DeLaurentis, Attorney, Markets Dispute Resolution Division,
to John T. Nakahata, Counsel for GCI, and Karen Brinkman,
Counsel for ACS, File No. EB-04-MD-008.
7 Joint Motion to Dismiss Claims Against ACS of
Fairbanks, Inc. and ACS of Alaska, Inc.; Request to Convert
Claims Against ACS of Anchorage, Inc. to Claims in an
Informal Complaint, File No. EB-03-MD-008 (filed Oct. 7,
2004) (``Joint Motion'').
8 Joint Motion at 4.
9 Joint Motion at 2-3.
10 Joint Motion at 3.
11 Id.
12 Id.