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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of
)
APCC Services, Inc.,
)
Complainant,
) File No. EB-08-MD-011
v.
)
Pulsar Communications, Inc.,
)
Defendant.
)
)
)
ORDER of dismissal
Adopted: September 14, 2009 Released: September 14, 2009
By the Deputy Chief, Market Disputes Resolution Division, Enforcement
Bureau:
1. In this Order we dismiss, with prejudice, a formal complaint in the
captioned proceeding.
The Complaint
2. On December 10, 2008, APCC Services, Inc. ("APCC") filed a formal
complaint against Pulsar Communications, Inc. ("Pulsar") under section
208 of the Communications Act of 1934, as amended ("Act"). The
complaint alleges that Pulsar failed to pay dial-around compensation
to APCC for certain categories of completed coinless payphone calls,
in violation of sections 201(b) and 276 of the Act.
Pulsar's Failure to Answer
3. Under the Commission's formal complaint rules, Pulsar's answer to
APCC's complaint was due by January 9, 2009. Pulsar did not submit an
answer by that date. Commission staff accordingly sent an e-mail to
the parties on January 14, 2009 attempting to schedule a conference
call to discuss next steps in the case. Pulsar, however, did not
respond to the staff's e-mail. Rather, on January 15, 2009, Pulsar
sent Commission staff an e-mail attaching a two-page memorandum
disputing that it is liable to APCC. On January 22, 2009, Commission
staff released a letter explaining that the Pulsar Memorandum is a
defective pleading, because it does not comply with the Commission's
formal complaint rules in numerous, significant respects. In the same
letter, Commission staff attempted again to schedule a conference call
with the parties. Pulsar failed to respond to the January 22 Letter as
well.
4. On January 27, 2009, Commission staff sent another letter detailing
the numerous ways in which the Pulsar Memorandum did not satisfy the
Commission's rules. The January 27 Letter further stated that Pulsar
had "one final opportunity ... to submit an answer that complies fully
with Commission rules," and that, if Pulsar did not do so by February
23, 2009, APCC could pursue a default judgment. Pulsar did not respond
to the January 27 Letter.
APCC's Failure to Pursue a Default Judgment or Seek Dismissal
5. On March 4, 2009, Commission staff held a telephone conference in
which both parties were asked to participate, but only counsel for
APCC participated. During that call, staff advised APCC that it had
the option of pursuing a default judgment against Pulsar. Staff
instructed APCC that it must, on or before April 20, 2009, either (1)
file a motion for default judgment, or (2) withdraw the complaint.
Commission staff further stated that, if APCC failed to take either of
those steps, it risked dismissal of the complaint for failure to
prosecute. Staff memorialized those rulings in a letter dated March 5,
2009.
6. On April 10, 2009, APCC filed a Motion for Extension of Time and
Request for Expedited Decision, requesting an additional 90 days
(until July 19, 2009) to file a motion for a default judgment against
Pulsar. APCC sought an extension of the April 20, 2009 filing deadline
in order to pursue settlement discussions with another carrier
(Teleconnection, Inc.) about "many of the same calls that are at issue
in the . . . [Pulsar] formal complaint." In the Motion for Extension,
APCC also sought an expedited ruling from staff, arguing that Pulsar
should be granted no more than three business days to respond or
oppose the motion. In support of its request for an expedited
decision, APCC noted that its default judgment motion filing deadline
was imminent and that Pulsar repeatedly had been unresponsive in this
proceeding.
7. On April 13, 2009, staff directed Pulsar to respond to APCC's Motion
for Extension by April 15, 2009. Pulsar did not respond. Staff then
granted the requested extension, ordering APCC either to file a motion
for default judgment or withdraw its formal complaint against Pulsar
by July 19, 2009. The ruling again warned APCC that a failure to take
either of these steps could result in a dismissal for failure to
prosecute.
Analysis
8. The Commission will dismiss a complaint for failure to prosecute when
"it is apparent that complainant has ceased to pursue its complaint."
The facts here demonstrate that APCC has abandoned its complaint
against Pulsar.
9. As explained above, APCC participated in a discussion with Commission
staff regarding the necessity of APCC either withdrawing the complaint
or filing a motion for default judgment by a date certain. Commission
staff memorialized that ruling in an order, which established an April
20, 2009 deadline. When APCC was concerned that it would be unable to
meet the Commission's April deadline, it filed the Motion for
Extension, arguing that an expedited decision was necessary in light
of the looming due date. We agreed with APCC, and granted an extension
to July 19, 2009.
10. Nonetheless, APCC allowed the July 19, 2009 deadline to come and go
without seeking a further extension. And nearly two more months have
since passed without word from APCC about pursuing a default judgment
against Pulsar. APCC's failure to timely withdraw the complaint, or
file a motion for default judgment, leads us to conclude that
dismissal is warranted. Termination of this matter will serve the
public interest by eliminating the need for the expenditure of further
time and resources by the Commission, and by affording Pulsar
certainty about the status of the claims against it.
Ordering Clause
11. 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. S:S:
151, 154(i), 154(j), 208, and 276, and sections 1.720-1.736 of the
Commission's rules, 47 C.F.R. S:S: 1.720-1.736, and the authority
delegated by sections 0.111 and 0.311 of the Commission's rules, 47
C.F.R. S:S: 0.111, 0.311, that the above-captioned complaint IS
DISMISSED WITH PREJUDICE and that this proceeding IS TERMINATED in its
entirety.
FEDERAL COMMUNICATIONS COMMISSION
Lisa B. Griffin
Deputy Chief, Market Disputes Resolution Division
Enforcement Bureau
47 U.S.C. S: 208.
47 U.S.C. S:S: 201(b), 276. See APCC Services, Inc. v. Pulsar
Communications, Inc., File No. EB-08-MD-011 (filed Dec. 10, 2008).
Notice of Formal Complaint, File No. EB-08-MD-011 (Dec. 18, 2008) at 2
("Notice of Formal Complaint").
E-mail, with attachment, to Jacqueline Spindler, FCC, from Kathy Baker and
Keith Liljestrand, representatives of Pulsar, File No. EB-08-MD-011 (Jan.
15, 2009) ("Pulsar Memorandum").
Letter to Albert H. Kramer and Jacob S. Farber, counsel for APCC, and
Keith Liljestrand and Kathy Baker, representatives of Pulsar, from
Jacqueline Spindler, FCC, File No. EB-08-MD-011 (Jan. 22, 2009) ("January
22 Letter"). See 47 C.F.R. S:S: 1.720, 1.724, 1.728.
January 22 Letter at 2.
Letter to Albert H. Kramer and Jacob S. Farber, counsel for APCC, and
Keith Liljestrand and Kathy Baker, representatives of Pulsar, from
Jacqueline Spindler, FCC, File No. EB-08-MD-011 (Jan. 27, 2009) ("January
27 Letter").
January 27 Letter at 3.
Letter to Albert H. Kramer and Jacob S. Farber, counsel for APCC, and
Keith Liljestrand and Kathy Baker, representatives of Pulsar, from
Jacqueline Spindler, FCC, File No. EB-08-MD-011 (Mar. 5, 2009) ("March 5
Letter").
APCC Motion for Extension of Time and Request for Expedited Decision, File
No. EB-08-MD-011 (filed Apr. 10, 2009) at 1 ("Motion for Extension").
Id. at 2 & n.3 (appending a copy of the informal complaint filed against
Teleconnection).
Motion for Extension at 2. Under the Commission's rules, oppositions to
motions filed in formal complaint proceedings must be filed within five
business days of the motion's filing. 47 C.F.R. S: 1.727(e).
Id. at 1.
Letter to Albert H. Kramer and Jacob S. Farber, counsel for APCC, and
Keith Liljestrand and Kathy Baker, representatives of Pulsar, from
Jacqueline Spindler, FCC, File No. EB-08-MD-011 (Apr. 13, 2009).
Letter to Albert H. Kramer and Jacob S. Farber, counsel for APCC, and
Keith Liljestrand and Kathy Baker, representatives of Pulsar, from
Jacqueline Spindler, FCC, File No. EB-08-MD-011 (Apr. 16, 2009).
Voice Networks, Inc. v. U S West Wireless, L.L.C., Order, 16 FCC Rcd 4904,
4906, P: 6 (Enf. Bur. 2001); Nassau Communications Network, Inc. v.
National Communications Network, Inc., Order, 12 FCC Rcd 15191, 15194,
P: 6 (Com. Car. Bur. 1997); Cellular Marketing Inc. v. Houston Cellular
Telephone Co., Order, 10 FCC Rcd 8897, 8897, P: 7 (Wireless Bur. 1995).
Cf. NetworkIP, LLC v. FCC, 548 F.3d 116, 125-28 (D.C. Cir. 2008) (vacating
as arbitrary and capricious the FCC's decision to waive a complaint filing
deadline).
See APCC Services, Inc. v. Advance Business Tel., Order, 17 FCC Rcd 13479,
13481, P: 5 (Enf. Bur. 2002) (dismissing, without prejudice, a complaint
APCC failed to prosecute against a defendant that did not file an answer
and warning APCC that "future instances of failing to adhere to our rules
[regarding the necessity of either pursuing a default judgment or
withdrawing complaints] will result in dismissal with prejudice")
(emphasis added).
(Continued from previous page)
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Federal Communications Commission DA 09-2040
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Federal Communications Commission DA 09-2040