Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the matter of ) ) COMSAT CORPORATION, ) ) Complainant, ) ) v. ) File No. E-99-08 ) IDB MOBILE COMMUNICATIONS, INC., ) ) Defendant. ) MEMORANDUM OPINION AND ORDER Adopted: May 5, 2000 Released: May 8, 2000 By the Chief, Enforcement Bureau: I. INTRODUCTION 1. In this Order, we dismiss with prejudice a complaint filed by COMSAT Corporation (COMSAT) against IDB Mobile Communications, Inc. (IDB) pursuant to section 208 of the Communications Act of 1934, as amended (Communications Act or Act).1 COMSAT's complaint alleges that IDB violated the International Maritime Satellite Telecommunications Act2 and sections 201(b), 202(a), and 214 of the Communications Act3 by obtaining certain communications satellite capacity used by IDB's U.S. land earth stations (LESs) from an entity other than COMSAT.4 In dismissing COMSAT's FCC Complaint, we hold that the doctrine of res judicata precludes COMSAT from maintaining the claims alleged in its FCC Complaint, because a federal district court has already issued a final judgment against COMSAT and in favor of IDB concerning claims that arose out of the same transaction from which the claims in this proceeding arise. We further hold that section 207 of the Communications Act precludes COMSAT from maintaining the claims in its FCC Complaint, because COMSAT previously elected to seek in a federal district court the same damages, arising from the same transaction, that are at issue in the FCC Complaint.5 II. BACKGROUND 2. The parties agree that ``there are no key facts in dispute....'' 6 COMSAT is a corporation created pursuant to the Communications Satellite Act of 1962.7 COMSAT provides a wide range of international satellite communications services.8 IDB also is a corporation that provides many international satellite communications services.9 3. In 1976, numerous national governments created the International Mobile Satellite Organization (Inmarsat) as a United Nations-chartered, international treaty organization to operate a global network of satellites to support communications services.10 As of the time that COMSAT filed its FCC Complaint, two key documents governed Inmarsat - the Inmarsat Convention and the Inmarsat Operating Agreement. The Convention is a treaty among national governments that are Parties of Inmarsat, each of whom designated an entity to act as its Signatory to the Operating Agreement. The Operating Agreement is a contract between the Signatories, each of which owned a portion of Inmarsat.11 4. In 1978, Congress passed the Maritime Satellite Act, designating COMSAT as the sole U.S. Signatory to Inmarsat and authorizing COMSAT to sign the Inmarsat Operating Agreement on behalf of the United States. In 1979, the United States signed the Inmarsat Convention.12 5. IDB was not an Inmarsat Signatory. At the time that COMSAT filed its FCC Complaint, IDB provided satellite communications services by combining its own land earth stations with satellite capacity (or space segment) purchased from an Inmarsat Signatory, such as COMSAT. IDB operates land earth stations in the United States.13 6. COMSAT and IDB entered into an intercarrier agreement, dated June 30, 1995, for the provision of space and combined space-and- ground segment services.14 Pursuant to this Agreement, from the summer of 1995 until September 1, 1997, IDB purchased space segment capacity for its U.S. LESs solely from COMSAT.15 7. Beginning September 1, 1997, IDB began to purchase space segment capacity for its U.S. LESs from an Inmarsat Signatory other than COMSAT. IDB notified COMSAT of this change in November 1997. At all relevant times since August 31, 1997, IDB has not purchased space segment capacity for its U.S. LESs from COMSAT.16 8. On January 28, 1998, in response to IDB's decision to purchase space segment capacity from an Inmarsat Signatory other than COMSAT, COMSAT filed a complaint against IDB in the United States District Court for the District of Maryland, Southern Division (District Court or Court).17 COMSAT included in the District Court Complaint three counts against IDB, all of them styled as ``Breach of Contract.'' Each of the three ``Breach of Contract'' counts essentially alleged that (1) the Maritime Satellite Act and the Communications Act require IDB to purchase space segment capacity for IDB's U.S. LESs exclusively from COMSAT; (2) the COMSAT/IDB Agreement incorporates those requirements of federal law; and, therefore, (3) IDB's purchasing of space segment capacity for its U.S. LESs from an entity other than COMSAT violated the COMSAT/IDB Agreement.18 COMSAT sought damages in the amount of, inter alia, whatever charges IDB would have paid COMSAT had IDB complied with IDB's alleged contractual obligation to purchase space segment capacity for IDB's U.S. LESs exclusively from COMSAT.19 COMSAT's District Court Complaint did not include any claim/count based directly on any alleged breach of the Maritime Satellite Act or the Communications Act. 9. In response to COMSAT's District Court Complaint, IDB filed a motion to dismiss in lieu of an answer pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. IDB asked the District Court either to dismiss the complaint for failure to state a claim or to stay the proceedings and refer certain issues to the Commission pursuant to the primary jurisdiction doctrine.20 10. On April 30, 1998, the District Court granted IDB's motion to dismiss COMSAT's District Court Complaint for failure to state a claim.21 In doing so, the District Court observed that ``this is not an action to vindicate COMSAT's statutory rights under the [Maritime Satellite] Act - this is a breach of contract case.''22 According to the District Court, even assuming, arguendo, that the Maritime Satellite Act required IDB to purchase space segment capacity for its U.S. LESs exclusively from COMSAT, IDB's failure to do so did not breach the COMSAT/IDB Agreement, because the Agreement permitted IDB to purchase such capacity from entities other than COMSAT.23 Thus, the District Court concluded that, ``[w]hile COMSAT may certainly have the power to vindicate its statutory rights in another forum, the Court can find no breach of the agreement.''24 In a footnote to the first clause of the foregoing statement, the Court stated: ``The [Maritime Satellite] Act does not provide for a civil cause of action to enforce its provisions. The FCC is charged with carrying out the provisions of 47 U.S.C. § 752. See 47 U.S.C. § 753(c)(1).''25 11. On January 6, 1999, COMSAT filed its FCC Complaint. COMSAT alleges that IDB violated the Maritime Satellite Act and sections 201(b), 202(a), and 214 of the Communications Act by purchasing space segment capacity for IDB's U.S. LESs from an entity other than COMSAT. COMSAT seeks damages in the amount of whatever charges IDB would have paid COMSAT had IDB purchased space segment capacity for IDB's U.S. LESs exclusively from COMSAT during the relevant period. Thus, COMSAT's FCC Complaint arises from the very same circumstances, and seeks essentially the very same damages, as COMSAT's District Court Complaint. The two Complaints differ only in that the District Court Complaint asserted a breach of contract theory, whereas the FCC Complaint asserts statutory theories. III. DISCUSSION A. The Doctrine Of Res Judicata Requires Dismissal Of All Of The Claims In COMSAT's Complaint. 12. IDB asserts that the doctrine of res judicata (or claim preclusion, in modern parlance) requires dismissal of COMSAT's FCC Complaint, because the claims alleged in the FCC Complaint arise from the same transaction as the claims previously alleged in the District Court Complaint.26 COMSAT responds that the doctrine of res judicata does not apply, because the District Court allegedly held that it lacked authority to adjudicate COMSAT's statutory claims, and that COMSAT should, therefore, bring such statutory claims to the FCC.27 For the following reasons, we agree with IDB that the doctrine of res judicata precludes all of COMSAT's claims here, and on that basis we dismiss COMSAT's FCC Complaint with prejudice. 13. According to the general rule of claim preclusion, a valid and final judgment rendered against a plaintiff and in favor of a defendant in one action bars another action by the same plaintiff against the same defendant that seeks to assert any legal theory regarding any right to any remedy relating to the same transaction from which the first action arose.28 In other words, a plaintiff usually must assert in one action all claims against a defendant that arise from the same operative facts. This rule rests ``largely on the ground that fairness to the defendant, and sound judicial administration, require that at some point litigation over the particular controversy come to an end.''29 14. It is beyond dispute that the District Court Order is a valid and final judgment against COMSAT and in favor of IDB concerning the same transaction at issue here. Thus, in the absence of some exception to the general rule of claim preclusion, we must dismiss COMSAT's FCC Complaint, even though it asserts different legal theories than the District Court Complaint.30 15. COMSAT argues that two exceptions to the general rule of claim preclusion apply here, because (1) the District Court expressly reserved COMSAT's right to bring its statutory claims to the FCC,31 and (2) the District Court held that it lacked jurisdiction to adjudicate COMSAT's statutory claims.32 We conclude that, although COMSAT accurately characterizes these exceptions to claim preclusion in the abstract, COMSAT inaccurately applies these exceptions to the circumstances of this case. 16. According to some authorities, claim preclusion should not occur where ``the court in the first action has expressly reserved the plaintiff's right to maintain the second action.''33 To support its assertion that this exception to the general rule of claim preclusion applies here, COMSAT relies only on one clause in the text of the District Court's Order and one sentence in a footnote in the District Court's Order. In particular, COMSAT points to the Court's observation that ``COMSAT may certainly have the power to vindicate its statutory rights in another forum,''34 followed by the Court's notation that ``[t]he FCC is charged with carrying out the provisions of 47 U.S.C. § 752.''35 In COMSAT's view, these remarks by the District Court ``directed COMSAT to bring the present Complaint to the Commission'' and thereby reflect the Court's intention to preserve COMSAT's right to litigate at the FCC all of the claims raised in its FCC Complaint.36 17. We disagree. First, a review of the District Court Order as a whole clearly reveals that the Court's reference to COMSAT's ``statutory rights'' pertains only to COMSAT's rights (if any) under the Maritime Satellite Act, and not to COMSAT's rights (if any) under the Communications Act.37 In fact, the District Court's Order does not refer to the Communications Act at all. Thus, the ``express reservation'' exception to claim preclusion cannot save COMSAT's Communications Act claims in its FCC Complaint. 18. Second, with respect to COMSAT's statutory rights under the Maritime Satellite Act, the District Court's references are essentially passing ones. Read in context, they appear to be merely speculations about what COMSAT might have done or might still do to attempt to pursue its statutory claims, and seem to be made solely to highlight that COMSAT did not pursue such claims in the District Court. They surely do not ``direct'' COMSAT to file a complaint with the FCC, and they clearly do not compare in either specificity or clarity to the ``express reservations'' stated by the courts in the cases cited by COMSAT.38 Most importantly, they do not plainly reveal an intent to ensure that the judgment in the District Court would not bar COMSAT's assertion of a claim under the Maritime Satellite Act with the FCC. Such oblique remarks do not suffice to overcome the compelling interests of fairness, repose, and judicial economy that underlie the rule of claim preclusion. 19. Indeed, the treatise cited by COMSAT suggests that the ``express reservation'' exception to claim preclusion should apply only where a plaintiff ``come[s] to trial prepared to prove a claim on one theory and [is] justifiably unaware of another theory or unprepared to prove it'';39 even in such an instance of ``legitimate surprise and reasonable excuse,'' the court may expressly reserve a claim for later litigation only by engaging in procedures of record tantamount to those required by Federal Rule of Civil Procedure 41.40 Nothing of that sort occurred here. The District Court Order indicates that COMSAT had full knowledge of the theory of recovery under the Maritime Satellite Act that it belatedly seeks to assert now; the Court's brief mention of the possibility of COMSAT asserting that theory in another forum falls far short of the explicit ``terms and conditions'' of dismissal contemplated by Federal Rule of Civil Procedure 41. Thus, the District Court's cursory comments do not qualify as an ``express reservation'' of COMSAT's right to litigate its Maritime Satellite Act claim at the Commission. 20. Another exception to the general rule of claim preclusion may apply where ``the plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts ..., and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief.''41 COMSAT asserts that this jurisdictional exception to the general rule of claim preclusion saves all of its claims from dismissal here, because the District Court stated in one sentence in a footnote that ``[t]he Act does not provide for a civil cause of action to enforce its provisions.''42 According to COMSAT: [t]he District Court itself held that COMSAT could not raise a statutory claim in the court proceeding, because "[t]he Inmarsat Act does not provide for a civil cause of action to enforce its provisions," but instead requires COMSAT to bring an action before the Commission. The District Court thus ruled that COMSAT was not obliged to -- indeed, could not -- raise its claims for IDB's violation of the Inmarsat Act, FCC authorizations, the Inmarsat Operating Agreement, as well as other applicable provisions of the Communications Act, as incorporated into the contract, in that forum.43 21. We again disagree with COMSAT. First, the District Court Order says nothing about COMSAT's potential claims under the Communications Act; as we stated above, the District Court Order mentions only the Maritime Satellite Act. Moreover, the District Court clearly could have adjudicated claims under the Communications Act, had COMSAT chosen to allege them in that forum.44 Therefore, the jurisdictional exception to claim preclusion does not apply to the Communications Act claims in COMSAT's FCC Complaint. 22. Second, the District Court's note that the Maritime Satellite Act does not provide for a civil cause of action is classic obiter dicta.45 COMSAT did not attempt to allege a civil cause of action under the Maritime Satellite Act, so the District Court's note was not necessary, or even relevant, to the District Court's sole holding that COMSAT's District Court Complaint failed to state a claim for breach of contract. In fact, the parties never raised before the District Court the question whether the Maritime Satellite Act provides for a civil cause of action,46 and that question is apparently a challenging one of first impression.47 Thus, the District Court did not hold that the Maritime Satellite Act lacks provision for a civil cause of action, and we are not convinced that, had the issue been squarely and thoroughly raised, the District Court necessarily would have so held. Accordingly, we cannot conclude that COMSAT was legally barred in the District Court from asserting a claim under the Maritime Satellite Act such that the jurisdictional exception to claim preclusion saves COMSAT's claim under the Maritime Satellite Act here.48 23. In sum, in the absence of an exception to the general rule of claim preclusion, we must dismiss all of COMSAT's claims against IDB in the FCC Complaint, because those claims arise from the same transaction from which COMSAT's claims against IDB arose in the fully adjudicated District Court Complaint. Neither of the exceptions to the general rule of claim preclusion asserted by COMSAT - the express reservation exception and the jurisdictional exception - applies to any of COMSAT's claims in its FCC Complaint. COMSAT should have asserted its federal statutory claims in its District Court Complaint if it wanted those claims adjudicated by any tribunal. Consequently, pursuant to the rule of claim preclusion, i.e., the doctrine of res judicata, we dismiss COMSAT's FCC Complaint with prejudice. B. Section 207 Of The Communications Act Requires Dismissal Of COMSAT's FCC Complaint. 24. IDB argues that, even if the res judicata doctrine does not require us to dismiss COMSAT's FCC Complaint, we should dismiss COMSAT's FCC Complaint on another ground. In IDB's view, section 207 of the Communications Act requires dismissal of COMSAT's FCC Complaint, because COMSAT's FCC Complaint arises from the same facts, and seeks the same damages, as COMSAT's District Court Complaint.49 COMSAT counters that section 207 does not require dismissal of COMSAT's FCC Complaint, because COMSAT's FCC Complaint asserts different legal theories than the District Court Complaint (federal statutory theories in the former, state contract theories in the latter), and the District Court allegedly ruled that it lacked jurisdiction over COMSAT's statutory claims and ``directed'' COMSAT to assert such claims at the FCC.50 For the following reasons, we agree with IDB and therefore dismiss COMSAT's FCC Complaint with prejudice on this alternative ground, as well. 25. Section 207 of the Communications Act, is entitled ``Recovery of Damages'' and provides: Any person claiming to be damaged by any common carrier subject to the provisions of this Act may either make complaint to the Commission as hereinafter provided for, or may bring suit for the recovery of the damages for which such common carrier may be liable under the provisions of this Act, in any district court of the United States of competent jurisdiction; but such person shall not have the right to pursue both such remedies.51 Very little precedent concerning the preclusive effect of section 207 exists.52 In fact, neither we nor the parties have found a decision involving circumstances where, as here, the claims in the two tribunals arise from the same transaction, but the plaintiff asserts different legal theories in the two tribunals. 26. Nevertheless, we have little trouble concluding that section 207 bars the instant complaint. Under section 207, a complainant may not pursue a lawsuit against a common carrier seeking damages for which the carrier ``may be'' liable under the Act and also file a complaint with the Commission under section 208. In the instant case, COMSAT filed a complaint in U.S. District Court seeking damages under a breach of contract theory, and the complaint was dismissed on the merits. COMSAT later filed a complaint with the Commission seeking damages under various Communications Act theories. The question is whether the damages that COMSAT sought in U.S. District Court were damages for which IDB ``may have been'' liable under the Act. If so, COMSAT's claims are barred under section 207. 27. As noted above, the damages that COMSAT sought in U.S. District Court are the very same damages it is seeking in the instant complaint - lost revenues resulting from IDB's failure since August 1997 to purchase space segment capacity for its U.S. LESs exclusively from COMSAT. There can be no doubt that, according to COMSAT, the damages it sought in U.S. District Court were damages for which IDB ``may have been'' liable under the Act, given that COMSAT's FCC Complaint seeks those very damages (i.e., the lost revenues) under various provisions of the Act. The fact that COMSAT's District Court Complaint asserted different theories of liability than its FCC Complaint has no apparent bearing on the section 207 inquiry before us. The text of section 207, as well as its title (``Recovery of Damages''), indicate that the focus of the provision is the nature of the relief sought by the plaintiff, rather than the legal theories in which the plaintiff's claims are dressed. We also note that the self-evident purposes of section 207, avoiding duplicative litigation and maximizing judicial economy, would be ill-served by allowing a plaintiff to litigate a damages claim to completion in one forum, then file a separate claim seeking the same relief (even if under different legal theories) in a separate forum. We thus conclude that section 207 precludes COMSAT from pursuing the instant claims.53 28. The three cases on which COMSAT primarily relies provide COMSAT no support. In Long Distance/USA, Inc. v. Bell Telephone Co. of Pennsylvania,54 the plaintiff's FCC Complaint did not seek any damages at all, much less the same damages as were at issue in its previously filed court complaint. In Mocatta Metals Corp. v. ITT World Communications, Inc., the Commission held that section 207 required the plaintiff to dismiss forthwith either its FCC complaint or its previously filed court complaint, stating that ``[s]ection 207 of the Act will not permit [the complainant] to go forward with a complaint before the Commission while it litigates the same claim before a District Court.''55 Mocatta Metals does not discuss whether the ``claim'' before the District Court presented the same liability theory as the section 208 complaint, and thus does not address the question before us. In the third case, COMSAT v. News Corp. Ltd.,56 the court entertained a court complaint, notwithstanding a previously filed FCC complaint regarding the same issues, but only because the FCC complaint had been dismissed without prejudice by stipulation of the parties, which meant that ``neither party ha[d] had any advantage or any decision in that [FCC] forum.''57 Here, by stark contrast, the District Court Complaint did result in a final decision, and IDB did thereby obtain an advantage in the court forum. Accordingly, we believe the cases cited by COMSAT do not support its position.58 IV. CONCLUSION 29. In view of the foregoing, we conclude that the doctrine of res judicata precludes COMSAT from maintaining the claims alleged in its FCC Complaint, because a federal district court has already issued a final judgment against COMSAT and in favor of IDB concerning claims that arose out of the same transaction from which the claims in this proceeding arise. We further conclude that section 207 of the Communications Act precludes COMSAT from maintaining the claims in its FCC Complaint, because COMSAT previously elected to seek in a federal district court the same damages, arising from the same transaction, that are at issue in the FCC Complaint. Accordingly, we dismiss COMSAT's FCC Complaint with prejudice. V. ORDERING CLAUSE 30. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), 207, and 208 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 207, 208, and authority delegated by sections 0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§ 0.111, 0.311, that the formal complaint in this proceeding IS DISMISSED WITH PREJUDICE and this proceeding IS TERMINATED. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau _________________________ 1 47 U.S.C. § 208. 2 47 U.S.C. §§ 751-757 (Maritime Satellite Act or Inmarsat Act). COMSAT also refers to the Inmarsat Convention, the Inmarsat Operating Agreement, and related Commission orders, but all of those references are derivative of COMSAT's claim under the Maritime Satellite Act. 3 47 U.S.C. §§ 201(b), 202(a), 214. COMSAT also refers to IDB's Commission authorizations to provide communications service, but those references are derivative of COMSAT's claims under the Communications Act. 4 Formal Complaint of COMSAT Corporation, File No. E-99-08 (filed Jan. 6, 1999) (FCC Complaint). 5 47 U.S.C. § 207. Given these holdings, we need not and do not reach IDB's argument that the Commission lacks authority under section 208 of the Act to adjudicate COMSAT's claim that IDB violated the Maritime Satellite Act. 6 Joint Statement, File No. E-99-08 (filed Feb. 12, 1999) (Joint Statement) at 5. 7 47 U.S.C. §§ 701, et seq. (Satellite Act). 8 FCC Complaint at ¶¶ 5-7; Answer of IDB Mobile Communications, Inc., File No. E-99-08 (filed Jan. 27, 1999) (Answer) at ¶ 59; Joint Statement at 2, ¶ 2. 9 FCC Complaint at ¶ 9; Answer at ¶ 59; Joint Statement at 2, ¶ 3. 10 FCC Complaint at ¶ 25; Answer at ¶ 73. 11 FCC Complaint at ¶ 25; Answer at ¶ 73; COMSAT Corp. v. IDB Mobile Communications Inc., et al., Memorandum Opinion and Order, No. AW 98-281 (D. Md. April 30, 1998), dismissed without opinion, COMSAT Corp. v. IDB Mobile Communications, Inc., et al., No. 98- 2525 (4th Cir. May 21, 1999) (District Court Order) at 2-3. Inmarsat became a private corporation on April 15, 1999, at which time the Maritime Satellite Act no longer governed satellite distribution services. See In the Matter of Requests for Special Temporary Authority to Change Points of Communications from Inmarsat to Inmarsat Limited, Order, DA 00-744 (Satellite and Radiocommunication Div., International Bur., released Apr. 3, 2000). Thus, the relevant period with respect to the matters here in issue is September 1, 1997 to April 14, 1999. 12 FCC Complaint at ¶¶ 24-25; Answer at ¶ 73. 13 FCC Complaint at ¶ 29; Answer at ¶ 77; Joint Statement at 2- 3, ¶¶ 2-3, 5. 14 FCC Complaint at Exhibit 3, Agreement Between COMSAT Mobile Communications and IDB Mobile Communications, Inc. (COMSAT/IDB Agreement or Agreement). By its own terms, this Agreement terminated on September 1, 1999. Id. at § 1.1. 15 Joint Statement at 3-4, ¶¶ 4-8. 16 Id. 17 COMSAT Corporation v. IDB Mobile Communications, Inc. et al., No. AW 98-281 (D. Md., filed January 28, 1998) (District Court Complaint). The District Court Complaint also named Teleglobe, Inc. and WorldCom, Inc. as defendants, but COMSAT's inclusion of these defendants in the District Court Complaint does not affect any of the issues here. 18 District Court Complaint at 3-9. 19 Id. at 10. 20 Defendants' Motion to Dismiss or, in the Alternative, to Stay, COMSAT Corp. v. IDB Mobile Communications, Inc., No. AW 98-281 (D. Md) (filed Feb. 24, 1998), attached as Tab 1 to Letter dated Mar. 31, 2000, from Rebekah J. Kinnett, counsel for COMSAT, to Magalie Roman Salas, Secretary, Federal Communications Commission, File No. E-99-08 (filed Mar. 31, 2000). 21 District Court Order, supra. 22 Id. at 9. 23 Id. at 6-10. 24 Id. at 10 (footnote omitted). 25 Id. at 10 n.3. COMSAT appealed the District Court Order on October 13, 1998. COMSAT Corp. v. IDB Mobile Communications, Inc., et al., No.98-2525 (4th Cir. filed Oct. 13, 1998). On May 21, 1999, the U. S. Court of Appeals for the Fourth Circuit dismissed COMSAT's appeal without issuing an opinion. COMSAT Corp. v. IDB Mobile Communications, Inc., et al., No.98-2525 (4th Cir. May 21, 1999). On June 16, 1999, COMSAT filed a motion with the District Court pursuant to Rule 60 of the Federal Rules of Civil Procedure asking the District Court, inter alia, to clarify that the District Court intended to allow COMSAT to file a complaint with the Commission. COMSAT Corporation v. IDB Mobile Communications, Inc., No. AW-98-281 (D. Md.), Motion of Plaintiff COMSAT Corporation Pursuant to Federal Rules of Civil Procedure 60(a) and 60(b)(6), attached to Letter dated Jul. 14, 1999, from Mark D. Wegener, counsel for COMSAT, to Adrien R. Auger, Staff Counsel, Federal Communications Commission, File No. E-99-08 (filed Jul. 14, 1999). Then, at a July 8, 1999 status conference attended by the parties' FCC and court counsel, both COMSAT and IDB asked Commission staff to hold this proceeding in abeyance until the District Court ruled on COMSAT's Rule 60 motion. The District Court denied COMSAT's Rule 60 motion on August 23, 1999. See Letter dated Sept. 1, 1999, from Alfred M. Mamlet, counsel for IDB, to Magalie R. Salas, Secretary, Federal Communications Commission, File No. E-99-08 (filed Sept. 1, 1999). 26 Answer at 21-27; Brief of IDB Mobile Communications, Inc., File No. E-99-08 (filed Mar. 19, 1999) (IDB Brief) at 5-13; Reply Brief of IDB Mobile Communications, Inc. File No. E-99-08 (filed Apr. 9, 1999) (IDB Reply Brief) at 5-8. 27 Plaintiff's Reply to Affirmative Defenses, File No. 99-08 (filed Feb. 2, 1999) (COMSAT's Reply to Affirmative Defenses) at 2-9; Brief of COMSAT Corp., File No. E-99-08 (filed Mar. 19, 1999) (COMSAT Brief) at 21-23; Reply of COMSAT Corp., File No. E- 99-08 (filed Apr. 9, 1999) (COMSAT Reply Brief) at 1-2. 28 See, e.g., Restatement (2d) of Judgments §§ 19, 24, 25. 29 Id. § 19, comment a. 30 See, e.g., id. § 24, comment c, § 25, comment d, § 19, comment a (stating that claim preclusion can apply ``even though the substantive issues have not been tried, especially if the plaintiff has failed to avail himself of opportunities to pursue his remedies in the first proceeding.''). COMSAT does not dispute that claim preclusion may apply where, as here, the first action was before a court and the second action is before an administrative agency. See, e.g., Puerto Rico Maritime Shipping Authority v. Federal Maritime Commission, 75 F.3d 63 (1st Cir. 1996). 31 COMSAT's Reply to Affirmative Defenses at 2-6, 9; COMSAT Brief at 21-23; COMSAT Reply Brief at 1-2. We call this the ``express reservation'' exception. 32 COMSAT's Reply to Affirmative Defenses at 7-9; COMSAT Brief at 22; COMSAT Reply Brief at 1-2. We call this the ``jurisdictional'' exception. 33 Restatement (2d) of Judgments § 26(1)(b) (emphasis added). See Venuto v. Witco Corp., 117 F.3d 754 (3d Cir. 1997); Stolberg v. Board of Trustees for the State Colleges of the State of Connecticut, 541 F.2d 890 (2d Cir.), cert. denied, 429 U.S. 897 (1976); 18 Wright, Miller, & Cooper, Federal Practice and Procedure, § 4413 (Wright & Miller) (``A judgment that expressly leaves open the opportunity to bring a second action on specified parts of the claim or cause of action that was advanced in the first action should be effective to forestall preclusion.'') (emphasis added). 34 District Court Order at 10. 35 Id. at n.3. 36 COMSAT Brief at 21. See COMSAT's Reply to Affirmative Defenses at 2-6, 9; COMSAT Brief at 21-23; COMSAT Reply Brief at 1-2. 37 For example, the Court states that ``this is not an action to vindicate COMSAT's statutory rights under the Act . . .,'' District Court Order at 9, and defines ``Act'' as the Maritime Satellite Act alone. Id. at 3. 38 Venuto v. Witco Corp., 117 F.3d at 759-761; Stolberg v. Board of Trustees, 541 F.2d at 893. 39 18 Wright & Miller § 4413 (emphasis added). 40 Id. 41 Restatement (2d) of Judgments § 26(1)(c). See id. at § 25, comment e; International Association of Machinists & Aerospace Workers, 512 F.2d 125, 131 ( 5th Cir. 1975). 42 District Court Order at 10 n.3. See COMSAT's Reply to Affirmative Defenses at 7-9; COMSAT Brief at 22; COMSAT Reply Brief at 1-2. 43 COMSAT Reply at 8 (footnote omitted). 44 47 U.S.C. § 207. 45 The literal translation of that Latin phrase is ``remarks by the way.'' Black's Law Dictionary at 454 (Sixth Ed. 1990). We use it to mean ``opinions of a judge which do not embody the resolution or determination of the court, and made without argument, or full consideration of the point, are not the professed deliberate determinations of the judge himself.'' Id. 46 See Letter dated March 31, 2000 from Rebekah J. Kinnett, counsel for COMSAT Corporation, to Magalie Roman Salas, Secretary, Federal Communications Commission, File No. E-99-08 (filed Mar. 31, 2000) (enclosing documents filed before the United States District Court for the District of Maryland in Civil Action No. AW-98-0281, COMSAT Corporation v. IDB Mobile Communications, Inc.). Moreover, neither of the parties raised this issue in its appellate papers filed with the Fourth Circuit, reflecting the parties' awareness that the District Court's note about the jurisdictional ramifications of the Maritime Satellite Act was extraneous dicta. See COMSAT Corp. v. IDB Mobile Communications, Inc., et al., No. 98-2525 (4th Cir.), Brief of Plaintiff-Appellant (dated Dec. 21, 1998); Brief of Defendants- Appellees (dated Jan. 20, 1999); Reply Brief of Plaintiff- Appellant (dated Feb. 3, 1999). 47 See COMSAT's Reply to Affirmative Defenses at 10; COMSAT Brief at 16-20; COMSAT Reply Brief at 3-4; IDB Brief at 15-17; IDB Reply Brief at 11-16. 48 See Restatement (2d) of Judgments § 25, comment e (stating that the jurisdictional exception to the general rule of claim preclusion applies only if ``the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly have declined to exercise it as a matter of discretion)....)'' (emphasis added). We note that we are not deciding whether the Maritime Satellite Act provides for a civil cause of action in a federal district court. We conclude only that, given the state of the law and of the record in the District Court, it is not certain that the District Court would have precluded COMSAT from litigating a claim under the Maritime Satellite Act, had COMSAT actually chosen to assert such a claim. This conclusion suffices to render inapplicable the jurisdictional exception to the general rule of claim preclusion. 49 IDB Brief at 13-15; IDB Reply Brief at 8-11. 50 COMSAT Brief at 23-24; COMSAT Reply Brief at 2-3. 51 47 U.S.C. § 207. 52 See generally Bell Atlantic Corp. v. MFS Communications Co., Inc., 901 F. Supp 835, 852 (D. Del. 1995)(observing that ``[n]o extant caselaw applies § 207 to complaints brought before the district court and the FCC, where each complaint arguably subsumes conduct addressed by the other.''). 53 See also Cancall PCS, LLC v. Omnipoint Corp., 2000 WL 272309 (S.D.N.Y. March 10, 2000) (holding that, under section 207, ``Plaintiffs' complaint in this action may proceed because it does not seek the same relief as that sought in its 1997 informal complaint'' with the FCC.) (emphasis added); RCA Global Communications, Inc. v. Western Union Telegraph Co., 521 F. Supp. 998, 1005-1006 (S.D.N.Y. 1981) (holding that, under section 207, Globcom could assert its court claim because, ``[w]hile Globcom did invoke the FCC's remedial authority in 1979 with respect to WU's overseas service, WU has failed to demonstrate that Globcom ever presented a claim for damages to the FCC concerning WU's overseas operations.'') (emphasis added); Long Distance/USA, Inc. v. Bell Telephone Co. of Pennsylvania, 7 FCC Rcd 408, 410-11 n.30 (Comm. Car. Bur. 1992) (stating that section 207 did not preclude FCC complaint because it did not seek the damages relief being sought in a pre-existing court complaint); Fairmount Telephone Co., Inc. v. Southern Bell Tel. & Tel. Co., 53 RR 2d 639, 643 (Com. Car. Bur. 1983) (holding that section 207 did not bar FCC complaint, because the plaintiff, who had previously filed a court complaint, ``d[id] not seek double recovery of damages.''). Cf. Standard Oil Co. v. United States, 283 U.S 235, 241 (1931) (holding that ICA analog to section 207 barred court complaint, because the plaintiff sought ``the same relief it failed to secure from the [Interstate Commerce] Commission.''). 54 7 FCC Rcd 408 (Com. Car. Bur. 1992). 55 44 FCC 2d 605, 607 (1973). 56 See Letter dated Feb. 22, 2000, from Danny E. Adams, counsel to COMSAT, to Magalie R. Salas, Secretary, Federal Communications Commission, File No. E-99-08 (filed Feb. 22, 2000) (enclosing COMSAT Corporation v. News Corporation Limited, No. CV 96-7528 SVW (CTx), ``Order Granting Summary Adjudication to Defendants and Denying Paintiff's Cross-motion for Summary Adjudication'' (C.D. Ca. Dec. 29, 1999) (COMSAT v. News Corp.)). 57 COMSAT v. News Corp. at 16 n.13. 58 Given our prior determination that the Court did not direct COMSAT to bring its Maritime Satellite Act claim to the Commission, we need not address COMSAT's argument that such a court direction would alter the section 207 analysis. We also note that our decision in this case does not reach the question whether section 207 precludes a FCC complaint when a previously filed court complaint arises from the same facts as the FCC complaint, but seeks different relief than the FCC complaint.