******************************************************** 
                      NOTICE
********************************************************

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.

*****************************************************************



                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   )

   In the Matter of )

   )

   NextG Networks of Illinois, Inc., )

   )

   Complainant, ) File No. EB-09-MD-006

   )

   v. )

   )

   RCN Telecom Services of Illinois, LLC, )

   )

   Respondent. )

   )

                               ORDER OF DISMISSAL

   Adopted: June 8, 2009 Released: June 8, 2009

   By the Chief, Market Disputes Resolution Division, Enforcement Bureau:

   I. introduction

    1. On May 4, 2009, NextG Networks of Illinois, Inc. ("NextG") filed a
       Complaint against RCN Telecom Services of Illinois, LLC ("RCN")
       pursuant to sections 224 and 251 of the Communications Act of 1934, as
       amended (the "Act"), and section 1.1404 of the Commission's rules.

    2. On May 20, 2009, following a telephone conference with counsel for the
       parties, Commission staff issued a Notice of Complaint instructing
       NextG to file an amended complaint in order cure certain deficiencies
       in the Complaint, and setting a schedule for subsequent pleadings in
       this matter.

    3. On May 22, 2009, NextG's counsel informed Commission staff and counsel
       for RCN that NextG wished to withdraw its Complaint without prejudice
       in order to allow further development of facts that may lead to either
       resolution of the dispute or at least a narrowing of the disputed
       issues. On May 26, 2009, RCN's counsel informed NextG and Commission
       staff that RCN did not object to NextG's proposal to withdraw its
       pending Complaint, but noted that RCN did not waive or prejudice its
       right to challenge the Commission's jurisdiction over this matter.
       Later that day, NextG filed a consent motion to dismiss the complaint
       without prejudice.

    4. We are satisfied that granting the Consent Motion will serve the
       public interest by encouraging parties to work privately to narrow and
       resolve disputed issues, which may limit or eliminate the need for
       litigation and the further expenditure of resources by the parties and
       this Commission.

    5. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), 224, and
       251 of the Act, 47 U.S.C. S:S: 154(i), 154(j), 224, 251, and sections
       1.1401-1.1418 of the Commission's rules, 47 C.F.R. S:S: 1.1401-1.1418,
       and the authority delegated in sections 0.111 and 0.311 of the
       Commission's rules, 47 C.F.R. S:S: 0.111, 0.311, that the Consent
       Motion to Dismiss Complaint Without Prejudice IS GRANTED.

    6. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), 224, and 251
       of the Act, 47 U.S.C. S:S: 154(i), 154(j), 224, 251, and sections
       1.1401-1.1418 of the Commission's rules, 47 C.F.R. S:S: 1.1401-1.1418,
       and the authority delegated in sections 0.111 and 0.311 of the
       Commission's rules, 47 C.F.R. S:S: 0.111, 0.311, that NextG's
       Complaint against RCN IS DISMISSED WITHOUT PREJUDICE.

   FEDERAL COMMUNICATIONS COMMISSION

   Alexander P. Starr

   Chief, Market Disputes Resolution Division

   Enforcement Bureau

                                   Exhibit A

   Lisa Saks

   From: Dieterich, Elise [mailto:edieterich@sandw.com]
   Sent: Tuesday, May 26, 2009 12:11 PM
   To: Alex Starr; Thompson, Scott; Lisa Saks
   Cc: Moylan, Leslie; Paul.Eskildsen@rcn.net; Tom Steel
   Subject: RE: NextG Networks of Illinois Complaint Against RCN Telecom
   Services of Illinois

   All -

    

   RCN has conferred, and does not object to NextG's withdrawal of the
   pending Complaint as proposed below.  To be clear, as Scott notes, RCN
   does not intend hereby to waive or otherwise prejudice its position
   regarding jurisdiction over this matter.

    

   If there are questions or if a more formal expression of RCN's consent is
   required, please feel free to contact me.  Best regards,

    

   - Elise 

    

   Elise Dieterich
   Attorney at Law

   Sullivan & Worcester LLP

   1666 K Street, NW
   Washington, DC 20006

   T        202 370 3925
   F        202 293 2275
   edieterich@sandw.com
   www.sandw.com

   BOSTON   NEW YORK   WASHINGTON, DC

   From: Alex Starr [mailto:Alex.Starr@fcc.gov]
   Sent: Friday, May 22, 2009 4:58 PM
   To: Thompson, Scott; Lisa Saks; Dieterich, Elise; Paul.Eskildsen@rcn.net;
   Tom Steel
   Cc: Moylan, Leslie; Alex Starr
   Subject: RE: NextG Networks of Illinois Complaint Against RCN Telecom
   Services of Illinois

   Counsel:

   In light of NextG's desire to withdraw its complaint, we hereby waive the
   deadline to file an amended complaint by today.  We look forward to
   hearing RCN's response to NextG's proposal promptly, preferably after
   having discussed the issue with NextG.

   Alex Starr, Chief EB-MDRD

   From: Thompson, Scott [mailto:ScottThompson@dwt.com]
   Sent: Friday, May 22, 2009 2:56 PM
   To: Lisa Saks; Dieterich, Elise; Paul.Eskildsen@rcn.net; Tom Steel
   Cc: Alex Starr; Moylan, Leslie
   Subject: RE: NextG Networks of Illinois Complaint Against RCN Telecom
   Services of Illinois

   All,

    

   NextG has decided to propose the following course of action in an attempt
   to potentially resolve this dispute, but at a minimum, narrow the
   potential issues.  NextG proposes to withdraw its Complaint, without
   prejudice, and to submit to RCN a request for access to conduit at
   specific locations within Chicago where NextG believes that RCN may own
   conduit.  If necessitated by RCN's response to those specific requests,
   NextG would refile a new complaint.  Obviously, if access is granted on
   lawful terms and conditions, NextG would not need to re-file.

    

   While I believe that NextG could ultimately dismiss its complaint without
   prejudice unilaterally since RCN has not yet answer, please let me know if
   you have any objection to this proposal.  I understand that RCN's position
   is probably that the FCC would not have jurisdiction over any subsequent
   complaint, and we are not suggesting that RCN would be waiving that
   position or that NextG would be waiving its position regarding
   jurisdiction by withdrawing its current complaint without prejudice now
   with this proposed course of action.

    

   We would propose to file the withdrawal without prejudice on Tuesday in
   lieu of filing an amended complaint today.  We anticipate providing RCN
   with the specific locations sometime next week.

    

   Please contact me if you have any questions regarding this proposal.

    

   Thanks

    

   Scott

   From: Lisa Saks [mailto:Lisa.Saks@fcc.gov]
   Sent: Wednesday, May 20, 2009 1:36 PM
   To: Dieterich, Elise; Thompson, Scott; Moylan, Leslie;
   Paul.Eskildsen@rcn.net; Tom Steel

   Cc: Alex Starr
   Subject: RE: NextG Networks of Illinois Complaint Against RCN Telecom
   Services of Illinois

   Dear Counsel:

    

   Enclosed is a letter memorializing the rulings made during
   yesterday's telephone conference.  A hard copy will follow by U.S. mail. 

    

   Lisa J. Saks
   Assistant Chief, Market Disputes Resolution Division
   Enforcement Bureau
   Federal Communications Commission
   445 12th Street, S.W.
   Room 4-C261
   Washington, D.C. 20554
   202/418-7335 (phone)
   Lisa.Saks@fcc.gov


     This message is intended to be confidential and may be legally          
     privileged. It is intended solely for the addressee. If you are not     
     the intended recipient, please delete this message from your system     
     and notify us immediately. Any disclosure, copying, distribution or     
     action taken or omitted to be taken by an unintended recipient in       
     reliance on this message is prohibited and may be unlawful.             
                                                                             
     Communications from our firm may contain or incorporate federal tax     
     advice. Under recently promulgated US Internal Revenue Service (IRS)    
     standards, we are required to inform you that only formal, written tax  
     opinions meeting IRS requirements may be relied upon by taxpayers for   
     the purpose of avoiding tax-related penalties. Accordingly, this        
     communication is not intended or written to be used, and it cannot be   
     used, for the purpose of avoiding tax-related penalties under the       
     Internal Revenue Code. Please contact a member of our law firm's Tax    
     Department if you require a formal, written tax opinion that satisfies  
     applicable IRS requirements, or if you have any other questions         
     regarding federal tax advice.                                           


   Complaint for Denial of Access to Conduits, File No. EB-09-MD-006 (filed
   May 4, 2009) ("Complaint").

   47 U.S.C. S:S: 224, 251.

   47 C.F.R. S: 1.1404

   Notice of Complaint, File No. EB-09-MD-006 (rel. May 20, 2009).

   Attached as Exhibit A is a chain of e-mail communications, including the
   May 22, 2009 message from NextG's counsel, Scott Thompson, proposing to
   withdraw the Complaint without prejudice, and the May 26, 2009 message
   from RCN's counsel, Elise Dietrich, stating that RCN does not object to
   NextG's proposal.

   Consent Motion to Dismiss Complaint Without Prejudice, File No.
   EB-09-MD-006 (filed May 26, 2009) ("Consent Motion").

   Federal Communications Commission DA 09-1293

   1

   1

   Federal Communications Commission DA 09-1293