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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
)
In the Matter of
)
All American Telephone Co.,
)
e-Pinnacle Communications, Inc., and
)
ChaseCom,
) File No. EB-10-MD-003
Complainants,
)
v.
)
AT&T Corp.,
)
Defendant.
)
)
)
)
order
Adopted: October 26, 2011 Released: October 27, 2011
By the Chief, Enforcement Bureau:
I. Introduction
1. This Order dismisses the Petition for Reconsideration or Clarification
of Aventure Communication Technology, L.L.C., and the Petition of
Qwest Communications Company, LLC to Accept Opposition Filing. As
discussed below, we dismiss the Aventure Petition for Reconsideration
because Aventure has not satisfied the requirements for non-parties to
seek reconsideration of a Commission order in an adjudicatory
proceeding. Similarly, we dismiss the Qwest Petition to Accept Filing
because Qwest has not demonstrated that it should be permitted to
intervene in the proceeding.
II. BACKGROUND
2. This is a formal complaint proceeding effectuating a primary
jurisdiction referral of litigation by the United States District
Court for the Southern District of New York. The parties to the
proceeding are complainants All American Telephone Co., e-Pinnacle
Communications, Inc., and ChaseCom (collectively, the "CLECs"), and
defendant AT&T Corp. ("AT&T"). On January 20, 2011, the Commission
issued a Memorandum Opinion and Order denying the CLECs' complaint and
holding that neither AT&T's failure to pay the CLECs' terminating
access charges nor its failure to file a "rate complaint " with the
Commission violated any provision of the Communications Act of 1934,
as amended ( "Act ").
3. Aventure Communication Technology, L.L.C. ("Aventure") - which is not
a party to this proceeding - filed a petition for reconsideration of
the All American Order. Aventure is a rural local exchange carrier
that has been "embroiled in litigation in federal district court in
Iowa related to interexchange carriers' ... refusals to provide
payment for the access services they have been taking" from Aventure.
4. Qwest Communications Company, LLC ("Qwest") - also not a party to this
proceeding - is one of the interexchange carriers involved in the Iowa
litigation with Aventure. Qwest filed a petition seeking permission to
file an opposition to the Aventure Petition for Reconsideration and to
the CLECs' Petition for Reconsideration.
III. Analysis
A. We Dismiss the Aventure Petition for Reconsideration.
5. In order to seek reconsideration of a Commission order in an
adjudicatory proceeding to which it was not a party, a petitioner must
demonstrate that (1) the petitioner's "interests are adversely
affected" by the order, and (2) the petitioner has "good reason why it
was not possible for [the petitioner] to participate in the earlier
stages of the proceeding." Aventure claims that it is adversely
affected by the All American Order because that Order allegedly is
"vague" and "subject to multiple interpretations." According to
Aventure, it will incur costs briefing the Iowa courts about the
precedential value of the All American Order and defending itself
against Qwest's efforts to dismiss some of Aventure 's claims with
prejudice based on the All American Order.
6. The Commission previously considered - and rejected - the precise
argument Aventure makes in this case. In AT&T v. BTI, the Commission
dismissed a petition for reconsideration filed by five CLECs and a
CLEC trade association that were not parties to a complaint proceeding
under section 208 of the Act. The Commission held that the mere
precedential value of an adjudicatory order in a section 208 complaint
proceeding cannot "adversely affect" a non-party to the adjudication
within the meaning of section 405(a) of the Act and section 1.106 of
the Commission's rules. AT&T v. BTI compels the conclusion here that
Aventure has not demonstrated that the All American Order "adversely
affects" its interests under rule 1.106(b)(1).
7. Aventure further asserts that it was "neither given notice of the
scope of the proceeding nor an opportunity to participate in the
action," because the complaint proceeding between the CLECs and AT&T
is "restricted" for purposes of the ex parte rules. We need not reach
this argument since Aventure fails to satisfy the "adversely affected"
component of rule 1.106(b)(1). We note, however, that the public is
able to ascertain the "scope" of any proceeding - including a
restricted proceeding - by reviewing the pleadings, which are publicly
available in the Commission's Reference Information Center.
A. We Dismiss the Qwest Petition to Accept Filing.
8. The Qwest Petition to Accept Filing cites no Commission rule or
precedent as a basis for allowing Qwest to participate in the
reconsideration phase of this complaint proceeding. Rather, the
Petition simply argues that Qwest 's participation "at this time is
warranted and is consistent with the public interest and orderly
process ," because Qwest " is a party to a number of lawsuits brought
by what are known as `traffic pumping' LECs to collect what they claim
are tariffed access charges." We construe Qwest's request as being
tantamount to a petition to intervene.
9. The Commission's rules make no provision for filing of petitions to
intervene in adjudicatory non-hearing proceedings. In past complaint
proceedings, however, the Commission has looked for guidance to the
standard contained in rule 1.223(b), which requires a petition for
leave to intervene as a party in a hearing to show, among other
things, the "interest of petitioner in the proceedings" and "how such
petitioner's participation will assist the Commission in the
determination of the issues in question."
10. The Qwest Petition to Accept Filing fails to satisfy the requirements
for intervention. Specifically, even if Qwest has an "interest" in
this proceeding, it has made no showing as to how its "participation
will assist the Commission in the determination of the issues in
question." Because, as discussed above, we dismiss the Aventure
Petition for Reconsideration, Qwest has no need to respond to the
arguments Aventure has advanced. Moreover, AT&T timely filed a 22-page
opposition to the CLECs Petition for Reconsideration, and Qwest does
not contend that AT&T's submission fails to adequately address the
issues raised in that Petition. Accordingly, we dismiss the Qwest
Petition to Accept Filing.
IV. ordering clauses
11. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), 208, and
405 of the Communications Act of 1934, as amended, 47 U.S.C. S:S:
154(i), 154(j), 208, and 405, and sections 0.111, 0.311, and 1.106 of
the Commission's rules, 47 C.F.R. S:S: 0.111, 0.311, and 1.106, that
the Petition for Reconsideration or Clarification of Aventure
Communication Technology, L.L.C. IS DISMISSED.
12. 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. S:S: 154(i), 154(j),
and 208, and sections 0.111, 0.311, and 1.223 of the Commission's
rules, 47 C.F.R. S:S: 0.111, 0.311, and 1.223, that the Petition of
Qwest Communications Company, LLC to Accept Opposition Filing IS
DISMISSED.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau
Petition for Reconsideration or Clarification of Aventure Communication
Technology, L.L.C., File No. EB-10-MD-003 (filed Feb. 22, 2011) ("Aventure
Petition for Reconsideration").
Petition of Qwest Communications Company, LLC to Accept Opposition Filing,
File No. EB-10-MD-003 (filed Mar. 4, 2011) ("Qwest Petition to Accept
Filing").
See All American Tel. Co., Inc. v. AT&T Corp., Order Referring Issues to
the Federal Communications Commission, Case No. 1:07-cv-00861-WHP
(S.D.N.Y. Feb. 5, 2010).
All American Telephone Co., e-Pinnacle Communications, Inc., and ChaseCom
v. AT&T Corp., Memorandum Opinion and Order, 26 FCC Rcd 723 (2011) ("All
American Order").
See Aventure Petition for Reconsideration.
Aventure Petition for Reconsideration at 1.
See Qwest Petition to Accept Filing. See also Petition for Reconsideration
or Clarification of All American Telephone Co., Inc., e-Pinnacle
Communications, Inc., and Chasecom, File No. EB-10-MD-003 (filed Feb. 22,
2011) ("CLECs Petition for Reconsideration"). See also AT&T's Opposition
to Petition for Reconsideration, File No. EB-010-MD-003 (filed Mar. 4,
2011) ("AT&T Opposition to Petition for Reconsideration").
47 C.F.R. S: 1.106(b)(1).
Aventure Petition for Reconsideration at 2-3.
Id. at 3. Qwest has requested that Aventure "voluntarily withdraw all
Communications Act claims from the pending federal court litigation, in
light of the All American Order, or Qwest will move the court to dismiss
those claims with prejudice." Id. at 2.
AT&T Corp. v. Business Telecom, Inc., Order on Reconsideration, 16 FCC Rcd
21750 (2001) ("AT&T v. BTI").
Id., 16 FCC Rcd at 21752-53, P:P: 6-7.
Aventure Petition for Reconsideration at 3. See 47 C.F.R. S: 1.1208
(Restricted Proceedings).
Qwest Petition to Accept Filing at 1.
Id. at 3.
Commission rule 1.106(b)(1) addresses petitions for reconsideration filed
by persons who are not parties to the proceeding. 47 C.F.R. S: 1.106(b).
It does not speak to non-parties' attempts to file oppositions to
petitions for reconsideration.
47 C.F.R. S: 1.223(b). See Teleconnect Co. v. The Bell Company of
Pennsylvania, Memorandum Opinion and Order, 6 FCC Rcd 5202, 5206, P:P:
18-20 (Com. Car. Bur. 1991) ("Although this section specifically addresses
intervention in an evidentiary hearing, we believe it to be a useful
standard when considering the petition for intervention before us" in a
formal complaint proceeding), aff'd on review, 10 FCC Rcd 1626 (1995). See
also JNE Investments, Inc., Memorandum Opinion and Order, 23 FCC Rcd 623,
627, P: 12 (2008) (noting that the "Commission's Rules do not provide for
petitions to intervene in non-hearing cases," but looking to the "factors
for intervention" in rule 1.223(b)).
47 C.F.R. S: 1.223(b). See Texas Cable and Telecommunications Assoc. v.
GTE Southwest Inc., Order, 17 FCC Rcd 6261, 6265, P: 9 (2002) (rejecting a
request to intervene in a pole attachment proceeding where the petitioner
failed to show how its participation would assist in the resolution of the
issues).
See AT&T Opposition to Petition for Reconsideration.
(continued from previous page)
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Federal Communications Commission DA 11-1731
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Federal Communications Commission DA 11-1731