Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

AT&T v. All American

Download Options

Released: June 10, 2014
image01-00.jpg612x792

Federal Communications Commission

FCC 14-84

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

)

)

AT&T Corp.,

)

)

Complainant,

)

)

v.

)

File No. EB-09-MD-010

)

All American Telephone Co.,

)

e-Pinnacle Communications, Inc., and

)

ChaseCom,

)

)

Defendants.

)

ORDER ON RECONSIDERATION

Adopted: June 10, 2014

Released: June 10, 2014

By the Commission:

I.

INTRODUCTION

1.

On April 30, 2010, AT&T Corp. (AT&T) filed a formal complaint against All American

Telephone Co. (All American), e-Pinnacle Communications, Inc. (e-Pinnacle), and ChaseCom

(ChaseCom) (collectively, Defendants) under Section 208 of the Communications Act of 1934, as

amended (Act).1 On March 22, 2013, the Commission ruled in favor of AT&T on Counts I and II of the

Complaint.2 Thereafter, the Defendants filed a Petition for Reconsideration and Clarification3 under

Section 1.106 of the Commission’s rules.4

For the reasons explained below, we dismiss the Petition on

procedural grounds and, as an independent and alternative basis for this decision, deny it on the merits.

2.

Beehive Telephone Co., Inc. and Beehive Telephone Co., Inc. Nevada (collectively,

Beehive), which are neither parties to this litigation nor to the district court case from which this litigation

1 See Amended Formal Complaint of AT&T Corp., File No. EB-09-MD-010 (filed Apr. 30, 2010) (Complaint); 47

U.S.C. § 208. The litigation arises from two primary jurisdiction referrals from the United States District Court for

the Southern District of New York (District Court).

2 AT&T Corp. v. All Am. Tel. Co., Memorandum Opinion and Order, 28 FCC Rcd 3477 (2013) (Order). AT&T

elected to bifurcate the claims in Count III of its Complaint into a supplemental complaint for damages in

accordance with 47 C.F.R. §§ 1.722(d)–(e). Id. at 3477, n.4; 3497, para. 45.

3 Petition for Reconsideration and Clarification of All American Telephone Co., Inc., e-Pinnacle Communications,

Inc., and ChaseCom, File No. EB-09-MD-010 (filed Apr. 24, 2013) (Petition); see also Opposition of AT&T Corp.

to Defendants’ Petition for Reconsideration, File No. EB-09-MD-010 (filed May 6, 2013); Reply of All American

Telephone Co., Inc., e-Pinnacle Communications, Inc., and ChaseCom in Support of Their Petition for

Reconsideration and Clarification, File No. EB-09-MD-010 (filed May 13, 2013) (Reply).

4 47 C.F.R. § 1.106.

image02-00.jpg612x792

Federal Communications Commission

FCC 14-84

arose, also filed a Petition for Reconsideration.5 As discussed below, we dismiss the Beehive Petition

because Beehive has not satisfied the requirements for non-parties to seek reconsideration of a

Commission order in an adjudicatory proceeding.

II.

BACKGROUND6

3.

At all relevant times, the Defendants purported to provide terminating interstate switched

access services to AT&T, an interexchange carrier, pursuant to federal tariffs that the Defendants filed

with the Commission. The Defendants charged AT&T for terminating interstate switched access

services, but AT&T refused to pay, asserting that the Defendants were not providing such services in

accordance with their federal tariffs and were sham entities.

4.

The Defendants sued AT&T in federal district court to collect the access charges billed,

alleging, inter alia, that AT&T’s refusal to pay violated the Defendants’ federal tariffs, Section 201(b) of

the Act, and Section 203(c) of the Act.7 AT&T filed an answer and counterclaims, asserting federal law

claims that Defendants violated Sections 201(b) and 203 of the Act.8 AT&T also claimed that, regardless

of whether Defendants provided access services pursuant to tariff, they committed unreasonable practices

through “sham” arrangements designed for the purpose of inflating access charges.9 The District Court

issued two primary jurisdiction referrals. The First Court Referral Order, issued on March 16, 2009,

referred AT&T’s “sham entity” counterclaim to the Commission.10 AT&T effectuated this referral by

filing an informal complaint with the Commission on April 15, 2009, which it converted into a formal

complaint on November 16, 2009.11

5.

Thereafter, Defendants requested that the District Court refer additional issues to the

Commission, which the District Court did on February 5, 2010.12 At Commission staff’s direction,

AT&T filed an Amended Complaint to effectuate certain issues in the Second Court Referral Order.13

5 Petition for Reconsideration, File No. EB-09-MD-010 (filed Apr. 24, 2013) (Beehive Petition); see also Opposition

of AT&T Corp. to Beehive Telephone Co., Inc.’s Petition for Reconsideration, File No. EB-09-MD-010 (filed

May 6, 2013); Reply to Opposition to Petition for Reconsideration, File No. EB-09-MD-010 (filed May 13, 2013)

(Beehive Reply).

6 This is an abridged description of the factual and legal background. The Order contains a more complete

discussion of the background, which is incorporated herein by reference. See Order, 28 FCC Rcd at 3478–87, paras.

2–23.

7 Id. at 3486–87, para. 22.

8

Id.

9

Id.

10 All Am. Tel. Co., Inc. v. AT&T, Inc., Memorandum & Order, 07-Civ 861, 2009 WL 691325 (WHP) (Mar. 16,

2009) (First Court Referral Order).

11 Order, 28 FCC Rcd at 3487, para. 23. See Formal Complaint of AT&T, File No. EB-09-MD-010 (filed Nov. 16,

2009).

12 All Am. Tel. Co., Inc., et al. v. AT&T, Inc., Order Referring Issues to the Federal Communications Commission,

07-Civ 861, (WHP) (Feb. 5, 2010) (Second Court Referral Order). See also All Am. Tel. Co., Inc., et al. v. AT&T,

Inc., Memorandum & Order, 07-Civ 861, 2010 WL 7526933 (Jan. 19, 2010) (Second Court Referral Memorandum

Opinion).

13 Order, 28 FCC Rcd at 3486–87, para. 23. See Letter Ruling from Lisa B. Griffin, Deputy Division Chief, EB,

MDRD, to James F. Bendernagel, Jr., Counsel for AT&T, and Jonathan Canis, Counsel for Defendants, File No.

EB-09-MD-010 (filed Apr. 2, 2010). At the same time, the Defendants filed their own formal complaint to

effectuate the remaining issues in the Second Court Referral Order, which the Commission has already resolved.

See All Am. Tel. Co. v. AT&T Corp., Memorandum Opinion and Order, 26 FCC Rcd 723 (2011) (All American v.

AT&T), recon. denied, 28 FCC Rcd 3469 (2013) (All American v. AT&T Recon. Order).

2

image03-00.jpg612x792

Federal Communications Commission

FCC 14-84

After the pleading cycle closed, the Commission ruled in favor of AT&T on Counts I and II of its

Complaint.14

The Commission found, based on the totality of the record, that Defendants were “sham”

Competitive Local Exchange Carriers (CLECs) created to “capture access revenues that could not

otherwise be obtained by lawful tariffs,” and that billing AT&T for access charges in furtherance of this

scheme constitutes an unjust and unreasonable practice in violation of Section 201(b) of the Act.15 The

Commission also found that Defendants violated Sections 201(b) and 203 of the Act by billing for

services that they did not provide pursuant to valid and applicable tariffs.16

III.

DISCUSSION

A.

We Dismiss Defendants’ Petition on Procedural Grounds.

6.

The Defendants’ Petition and Reply repeat many arguments that the Commission has

already fully considered and rejected. These include the Defendants’ assertions that (1) the Commission

ignored a statutory deadline;17 (2) the Commission ignored the contentions made in Defendants’ March

15th Request for Declaratory Ruling;18 (3) the Order was based upon a collateral attack on the rates and

practices of a non-party that were never subject to investigation;19 (4) Defendants’ rates are “conclusively

deemed reasonable” because Beehive’s rates are “deemed lawful” and are the only rates that could

apply;20 (5) Defendants’ discovery rights were unreasonably restricted;21 (6) the formal complaint process

was inherently prejudicial to the Defendants and failed to answer critical questions referred by the District

Court;22 (7) the complaint proceeding took a fragmented view of the service provided in order to prevent

the Defendants from defending themselves;23 (8) the Order failed to address AT&T v. Jefferson

Telephone;24 (9) the Order made findings that are inconsistent with established Commission precedent;25

and (10) the formal complaint process was designed to reach a predetermined conclusion and

14 Order, 28 FCC Rcd at 3497, para. 44. Count I of AT&T’s Complaint effectuates Issues 1a to 1e of the Second

Court Referral Order, and Count II effectuates the issues in the First Court Referral Order. Count III, which AT&T

bifurcated into a supplemental complaint for damages, effectuates issues 2, 3, 5a, 5c, 5d, and 5e of the Second Court

Referral Order. See id. at 3487, nn.98–99.

15 Order, 28 FCC Rcd at 3487–92, paras. 24–33. The Commission did not base its conclusions, as Defendants

contend, on a “single finding-that the rates that the [Defendants] billed and sought to collect are excessive.”

See

Petition at 9, 12–13.

16 Order, 28 FCC Rcd at 3492–95, paras. 34–41.

17 Compare Petition at 4–9, with Order, 28 FCC Rcd at 3497, para. 43, n.190.

18 Compare Petition at 8-9, with Order, 28 FCC Rcd at 3496, para. 42, n.183. See Request for Declaratory Ruling In

Response to Recent Order by Southern District of New York re Primary Jurisdiction Referral In File No. EB-09-

MD-010 (filed Mar. 15, 2012) (March 15th Request for Declaratory Ruling).

19 Compare Petition at 9–13, 18; Reply at 1–2, with Order, 28 FCC Rcd at 3492, para. 33, nn.143–45.

20 Compare Petition at 11–12, with Order, 28 FCC Rcd at 3491–92, para. 31, nn.137–39.

21 Compare Petition at 12-13, with Order, 28 FCC Rcd at 3496–97, paras. 42–43, n.186–90 (endorsing Bureau

analysis). See Letter from Lisa B. Griffin, Deputy Division Chief, EB/MDRD to Jonathan Canis, Counsel for All

American, and James F. Bendernagel, Jr., Counsel for AT&T, File No. EB-09-MD-010 (filed Sept. 2, 2010).

22 Compare Petition at 13–16, with Order, 28 FCC Rcd at 3496–97, paras. 42–43, nn.182–83, 189 (endorsing

Bureau analysis). See Letter from Lisa B. Griffin, Deputy Division Chief, EB/MDRD to Jonathan Canis, Counsel

for All American, and James F. Bendernagel, Jr., Counsel for AT&T, File No. EB-09-MD-010 (filed Apr. 27, 2010)

(concluding that “relevant factors of law, policy, and practicality” supported the procedural rulings).

23 Id.

24 Compare Petition at 12, n.19, with Order, 28 FCC Rcd at 3491–92, para. 32, nn.140–42.

25 Compare Petition at 2–4, 20–23; Reply at 3–4, with Order, 28 FCC Rcd at 3490–93, paras. 30–32, nn.124–42.

3

image04-00.jpg612x792

Federal Communications Commission

FCC 14-84

demonstrated bias.26 Defendants’ repetition of the same arguments here does not provide grounds for

reconsideration.27

7.

The balance of the Defendants’ arguments could—and thus should—have been made

before the Commission released the Order. These include Defendants’ assertions that (1) the

Commission’s procedural decisions in the complaint proceeding and action in a related tariff proceeding

demonstrated bias;28 and (2) Defendants’ tariffs allowed service to be provided by contract.29

Accordingly, we dismiss the Petition on procedural grounds.30

B.

We Otherwise Deny the Petition on the Merits.

8.

As an independent and alternative basis for this decision, we deny the Petition on the

merits.31 As detailed below, the Petition offers no basis that warrants altering the Commission’s findings.

1.

The Defendants’ Attacks on Procedural Rulings Are Unfounded.

9.

Defendants’ challenges to the Commission’s procedural rulings are baseless. First, the

Defendants incorrectly assert that the Commission failed to address the merits of their March 15th Petition

for Declaratory Ruling.32 That Petition was a request that the Commission reconsider its earlier

procedural orders regarding implementation of the District Court referrals. The Commission already had

26 Compare Petition at 1–20; Reply at 1–3, 10, with Order, 28 FCC Rcd at 3496–97, paras. 42–43, nn.181–90.

27 See 47 C.F.R. § 1.106(p)(3) (providing that petitions for reconsideration of a Commission action that “[r]ely on

arguments that have been fully considered and rejected by the Commission within the same proceeding” are among

those that “plainly do not warrant consideration by the Commission” and may therefore be dismissed by a bureau).

28 Petition at 18–19.

29 Petition at 21, n.38. In any event, the contract provisions in Defendants’ tariffs concern their relationships with

interexchange carriers, such as AT&T, not their conferencing service provider customers with which they contend

they had agreements. Compare All American Tariff No. 4, Definition of Individual Case Basis (“An arrangement

. . . based on the specific and unique circumstances of the Customer’s situation.”), with Definition of Customer

(“The term ‘Customer’ refers to an Interexchange Carrier.”). See, e.g., Qwest Commc’ns Co.v. Sancom, Inc.,

Memorandum Opinion and Order, 28 FCC Rcd 1982, 1992–93, paras. 24–25 (Enf. Bur. 2013).

30 See Qwest Commc’ns Co.v. N. Valley Commc’ns, LLC, Order on Reconsideration, 26 FCC Rcd 14520, 14522–23,

paras. 5–6 (2011) (“It is ‘settled Commission policy that petitions for reconsideration are not to be used for the mere

reargument of points previously advanced and rejected.’”) (citing S&L Teen Hosp. Shuttle, Order on

Reconsideration, 17 FCC Rcd 7899, 7900, para. 3 (2002) (citations omitted); All American v. AT&T Recon. Order,

28 FCC Rcd at 3471–72, para. 6 (same). See also 47 C.F.R. §§ 1.106(c)(1), (p)(1)–(2).

31 We also deny All American’s Emergency Motion to Address Jurisdictional and Due Process Issues, File No. EB-

09-MD-010 and EB-13-MD-003 (filed Dec. 19, 2013) (Emergency Motion). To begin, All American has not

demonstrated that there is an “emergency” warranting separate Commission action. In any event, we address in this

Order all of the issues raised in the Emergency Motion relating to All American. Moreover, we will address any

issues relating to Beehive in EB-13-MD-003 (the complaint proceeding to which Beehive is a party). See infra note

84. Finally, we note that All American filed its Emergency Motion under Section 1.41 of the Commission’s rules,

which does not apply here. See 47 C.F.R. § 1.41 (“Except where formal procedures are required under the

provisions of this chapter, requests for action may be submitted informally.”). This is a formal complaint

proceeding governed by the Commission’s formal complaint rules, and any “request to the Commission for an

order” should have been made in accordance with rule 1.727. 47 C.F.R. § 1.727(a). We will not countenance

attempts by parties to make end runs around the Commission’s formal complaint rules by filing motions under rule

1.41. See In the Matter of Warren C. Havens, Memorandum Opinion and Order, 28 FCC Rcd 16261, 16267-68

(2013) at para. 18 (“The Commission regularly declines to consider ‘informal’ requests for Commission action

under Section 1.41 when there are formal procedures available to the requesting parties . . . Section 1.41 is not an

invitation to . . . gamesmanship in presenting arguments to the Commission.”).

32 Petition at 8–9. See March 15th Request for Declaratory Ruling.

4

image05-00.jpg612x792

Federal Communications Commission

FCC 14-84

twice rejected the Defendants’ suggested approach to effectuate the District Court referrals, and we deny

their attempt here as repetitive.33

10.

Second, Defendants argue that they were improperly denied opportunities for discovery.34

The Defendants’ argument mischaracterizes their discovery requests and the Commission staff’s

discovery-related rulings. Section 1.729(a) of the Commission’s rules provides that “[r]equests for

interrogatories . . . may be used to seek discovery of any non-privileged matter that is relevant to the

material facts in dispute in the pending proceeding,”35 and the staff’s discovery rulings were consistent

with that rule.36 Specifically, the staff granted all of Defendants’ discovery requests relating to Beehive,37

and four requests relating to bifurcated damages issues were denied without prejudice.38 Neither of the

two remaining discovery requests denied by staff pertained to Beehive and, consequently, would not have

been useful to rebut the testimony challenged by the Defendants.39

11.

Third, the Defendants claim that the Commission failed to provide the District Court with

guidance it purportedly sought when the Defendants asked the District Court to allow them to pursue

additional discovery in the court proceedings.40 The District Court never sought guidance on that

discovery request and, in fact, expressly denied the Defendants’ request. The District Court has never

suggested that the Commission should modify its processes.41 On the contrary, the District Court

expressly declined Defendants’ invitation to “micromanage the agency’s interlocutory determinations.”42

33 See Order, 28 FCC Rcd at 3496–97, paras. 42–43, nn.183, 189.

34 See Petition at 12–13 (citing Letter Requesting Reconsideration of July 28, 2010 Letter Rulings, File Nos. EB-09-

MD-010, EB-10-MD-003 at 6, 8, and 9 (filed Aug. 20, 2010)); Reply at 10.

35 See 47 C.F.R. § 1.729(a).

36 Defendants wrongly contend that adverse discovery rulings prevented them from obtaining evidence from

Beehive witnesses, which they could use to refute testimony from an AT&T witness regarding where All

American’s traffic terminated. Petition at 12–13. In finding that the entirety of All American’s traffic “terminated

at its affiliate Joy’s equipment located in Beehive’s facilities in Utah and not in Nevada,” the Commission relied

upon the deposition testimony of the only Beehive employee with direct knowledge of the facts, and All American

participated in the deposition.

Order, 26 FCC Rcd. at 3484, para. 17. All American relied upon other Beehive

witnesses to counter this finding, but those witnesses did not have direct knowledge of the facts. See id. at 3484,

para. 17, nn.62, 64.

37 See All American, e-Pinnacle and ChaseCom’s First Request for Interrogatories to Complainant AT&T Corp.’s

Amended Complaint, File No. EB-09-MD-010, Request Numbers 1 and 9 (filed June 14, 2010) (Defendants’ First

Request for Interrogatories); see also Letter from Lisa B. Griffin, Deputy Division Chief, EB, MDRD, to James F.

Bendernagel, Jr., Counsel for AT&T, and Jonathan Canis, Counsel for Defendants, File No. EB-09-MD-010 at 4

(filed July 28, 2010) (July 28, 2010 Letter Ruling).

38 See Defendants’ First Request for Interrogatories, Request Numbers 2, 7, 8, 10; July 28, 2010 Letter Ruling at 4.

Defendants are free to raise these requests in any damages proceeding.

39 See Defendants’ First Request for Interrogatories, Request Number 5 (regarding AT&T’s Conferencing Service

Global Option), and Request Number 6 (regarding AT&T’s provision of conferencing services). Defendants’

Petition references other discovery rulings made in a different case, which the Commission previously resolved and

affirmed on reconsideration. See All American v. AT&T, 26 FCC Rcd at 726, para. 8. That case involved one legal

issue–i.e., whether AT&T violated Sections 201(b), 203(c), or any other provision of the Act by failing to pay billed

charges for the calls at issue. The Commission determined from the parties’ pleadings that no material facts were in

dispute, and accordingly determined that the discovery the CLECs sought, as well as any briefing, was unnecessary.

See id.

40 See Petition at 8–9 (citing March 15th Request for Declaratory Ruling).

41 See All Am. Tel. Co., Inc., et al. v. AT&T, Inc., Order, No. 07-Civ 861, (S.D.N.Y. Apr. 19, 2011) (noting that the

Commission has “prioritized the questions, facilitated the completion of discovery and briefing, and issued two

(continued . . .)

5

image06-00.jpg612x792

Federal Communications Commission

FCC 14-84

12.

Nor did the Commission act in an arbitrary and capricious manner by not answering all of

the referred questions in one proceeding.43 AT&T elected to bifurcate its liability and damages claims, as

it was entitled to do under Commission rules.44 Commission staff ruled that the issues raised in Count III

of AT&T’s Complaint (alleging that the Defendants are not entitled to collect any compensation for

access services under a quantum meruit, quasi-contract, constructive contract, or any other state law

theory) would be addressed in AT&T’s supplemental complaint for damages, if any.45 Thus, the damages

proceeding will encompass the remaining issues referred by the District Court, including the issues on

which Defendants request clarification.46

13.

Fourth, Defendants contend that, “under established precedent,” the Commission lacks

jurisdiction in any further proceedings to determine what rate, if any, AT&T must pay for the services

Defendants provided.47 As this issue was not decided in the Order, but will be adjudicated during a later

damages phase, it is not ripe for reconsideration.48 Moreover, All American v. AT&T does not support

their assertion.49 All American v. AT&T addressed whether a collection action for a customer-carrier’s

failure to pay another carrier’s tariffed charges gives rise to a claim under Section 208 for breach of the

Act itself. The Commission found that it did not.50 That order says nothing at all about a customer’s

(AT&T’s) claims against carriers (Defendants) concerning the carriers’ unjust and unreasonable conduct.

In addition, in both of its referrals, the District Court found that the Commission has the expertise and “is

in the best position” to determine the appropriate rate for the Defendants’ services,51 and that any decision

by the District Court to set an appropriate rate might discriminate against other customers of the CLECs.52

(Continued from previous page . . .)

rulings”); Order, No. 07-Civ 861 (S.D.N.Y. Feb. 28. 2012) (“the FCC continues to make progress, so the prospect of

a de facto indefinite stay is remote”).

42 All Am. Tel. Co., Inc., et al. v. AT&T, Inc., Order, No. 07-Civ 861 (S.D.N.Y. Feb. 28. 2012).

43 Petition at 13–16.

44 See Order, 28 FCC Rcd at 3477, n.4; 3497, para. 45.

45 See id.

46 See supra note 15; Petition at 23–25; Reply at 6–9. Thus, we decline Defendants’ request to “clarify [the] legal

and jurisdictional consequences” of the Order. Petition at 23–25; Reply at 6–9.

47 Petition at 16–17; Reply at 8-9.

48 See 47 C.F.R. § 1.106(p)(5).

49 See Petition at 16–17 (citing All American v. AT&T Recon. Order, 28 FCC Rcd at 3470–71, para. 5, 3472; para.

7).

50 See All American v. AT&T, 26 FCC Rcd at 726, para. 9. Similarly unavailing is Defendants’ reliance on Qwest

Commc’ns Corp. v. Farmers and Merchs. Mut. Tel. Co., Memorandum Opinion and Order, 22 FCC Rcd 17973,

17984-85 (2007) (Qwest v. Farmers) (stating that “any complaint instituted by [a carrier] to recover fees allegedly

owed by [another carrier] would constitute a ‘collection action,’ which the Commission repeatedly has declined to

entertain”). See Petition at 16 n.29.

51 See First Court Referral Order, 2009 WL 691325 at *4. Indeed, Defendants also requested the second referral

over AT&T’s objection, and they framed the “rate” questions for the District Court that they now claim the

Commission lacks jurisdiction to address. See Second Court Referral Memorandum Opinion, 2010 WL 7526933 at

*2; see also Second Court Referral Order at 2–4.

52 See First Court Referral Order, 2009 WL 691325 at *4.

6

image07-00.jpg612x792

Federal Communications Commission

FCC 14-84

2.

Defendants Have Adduced No Evidence that the Commission Is Biased.

14.

The Defendants’ claim that the Commission is biased has no merit whatsoever.53

Administrative officials are presumed to be honest, objective, and capable of judging particular

controversies fairly and on the basis of their own circumstances.54 To prevail on their claim that

Commission bias has denied them due process, Defendants must show “an unacceptable probability of

actual bias on the part of those who have actual decisionmaking power.”55 The Defendants have not

produced any meaningful evidence to meet that burden. Instead, they merely cite their objections to the

Commission’s handling of the District Court’s primary jurisdiction referrals as purported evidence of

bias. The Defendants offer no reason to revisit the Commission’s rejection of those objections.56 Adverse

rulings in proceedings are not by themselves sufficient to show actual bias, and bias cannot be inferred

from a pattern of rulings on motions.57

15.

Characterizing AT&T’s claims as falling within the scope of Section 208(b)(1) of the

Act, Defendants claim that the Order is untimely under that provision’s requirement that the Commission

issue an order within five months of the date the underlying complaint was filed.58 Defendants contend

that the Commission’s alleged failure to meet the deadline further evidences bias against them.59 The

Commission has made it clear, however, that Section 208(b)(1)’s deadline applies only to formal

complaints that involve “investigation[s] into the lawfulness of a charge, classification, regulation or

practice” contained in tariffs filed with the Commission.60 AT&T does not challenge the lawfulness of a

charge, classification, regulation or practice contained in a tariff that would fall within the parameters of

Section 208(b)(1). Instead, AT&T asserts that the Defendants misapplied their tariff and that they—

wholly apart from their tariffs—engaged in conduct that violates Section 201(b).61 Thus, the Defendants

have not demonstrated that the Commission violated a statutory directive.62

53 Petition at 9–20; Reply at 1–4, 10. Relying on arguments in Beehive’s Petition, the Defendants request recusal of

Enforcement Bureau staff. See Reply at 10. As discussed below in connection with the Beehive Petition, there is no

basis for granting this request. See infra note 84.

54 See United States v. Morgan, 313 U.S. 409, 421 (1941); Withrow v. Larkin, 421 U.S. 35, 47 (1975); Morris v. City

of Danville, Va., 744 F.2d 1041, 1044 (4th Cir. 1984).

55 U.S. v. State of Or., 44 F.3d 758, 772 (9th Cir. 1994), cert. denied, 516 U.S. 943 (1995).

56 Defendants also argue that bias can be inferred from the Commission’s rejection of All American’s Tariff No. 4.

Petition at 18–19. Not only is this argument factually incorrect (the Wireline Competition Bureau rejected All

American’s Tariff No. 3—not Tariff No. 4—because it did not “clearly establish a rate,” see Petition Attachment 7

(All American Telephone Co., Inc., Tariff F.C.C. No. 3, Order, 25 FCC Rcd 5661 (WCB/PPD May 21, 10)) at 2-3, it

affords no basis for granting reconsideration because the Defendants make this argument for the first time in the

Petition. See 47 C.F.R. § 1.106(p)(2).

57 See McLaughlin v. Union Oil Co. of Cal., 869 F.2d 1039, 1047 (7th Cir. 1989); Orange v. Island Creek Coal Co.,

786 F.2d 724, 728 (6th Cir. 1986).

58 Petition at 4–9; Reply at 4–6.

59 Id.

60 See Implementation of the Telecommunications Act of 1996, Amendment of Rules Governing Procedures to Be

Followed when Formal Complaints Are Filed Against Common Carriers, Report and Order, 12 FCC Rcd 22497,

24512–16, paras. 34–37 (1997); Order on Reconsideration, 16 FCC Rcd 5681, 5684, para. 6 (2001).

61 See Order, 28 FCC Rcd at 3487, para. 23.

62 Teamsters Local Union, which addressed the consequences of an agency’s failure to abide by a 45-day deadline

that applied to a disciplinary proceeding, thus is irrelevant. See Petition at 9, n.15 (citing Teamsters Local Union

1714 v. Pub. Emp. Relations Bd., 579 A.2d 706, 711 (D.C. Cir. 1990)). Cf. Farmers & Merchs. Mut. Tel. Co. v.

FCC, 668 F.3d 714, 718 (D.C. Cir. 2011) (even if the Commission failed to meet Section 208(b)(1)’s deadline in a

(continued . . .)

7

image08-00.jpg612x792

Federal Communications Commission

FCC 14-84

3.

The Order Is Consistent with the Prospective USF/ICC Transformation

Order.

16.

Defendants incorrectly assert that the Commission’s findings contravene the USF/ICC

Transformation Order.63 As the Defendants acknowledge, the USF/ICC Transformation Order is

prospective and has no binding effect on complaints that were pending at the Commission at the time of

its adoption and release.64 Nevertheless, relying upon snippets from and mischaracterizations of the

USF/ICC Transformation Order, Defendants argue that carriers who act unjustly and unreasonably in

violation of the Act and Commission rules may do so with impunity as long as they benchmark their

access rates to the competing incumbent local exchange carrier.65 Nothing in the USF/ICC

Transformation Order supports this contention. Indeed, the Commission’s prior decisions demonstrate

the exact opposite to be the case.66

17.

The USF/ICC Transformation Order is completely consistent with the outcome of this

case. The USF/ICC Transformation Order took immediate steps to curtail “wasteful arbitrage schemes”

that resulted in consumer costs exceeding hundreds of millions of dollars annually, and specifically

identified access stimulation as one of the “most prevalent arbitrage activities.”67 The record in this

proceeding overwhelmingly demonstrates that the Defendants were created to exploit exactly the type of

loopholes that the USF/ICC Transformation Order attempts to close.68 The USF/ICC Transformation

(Continued from previous page . . .)

matter—unlike this case—where the deadline applies, it would not lose jurisdiction “because Congress established

no consequence for failing to meet th[e] deadline.”).

63 Petition at 20–23; Reply at 3–4. Connect America Fund et al., WC Docket No. 10-90 et al., Report and Order and

Further Notice of Proposed Rulemaking, 26 FCC Rcd 176634 (2011) (USF/ICC Transformation Order), pets. for

review pending, Direct Commc’ns Cedar Valley, LLC v. FCC, No. 11-9581 (10th Cir. filed Dec. 18, 2011) (and

consolidated cases). Although Defendants argue that the Order’s findings also contravene other relevant

Commission precedent, they cite nothing other than the USF/ICC Transformation Order. See Petition at 20–23;

Reply at 3–4.

64 See Reply at 4. See also USF/ICC Transformation Order, 26 FCC Rcd at 17889, n.1182. The USF/ICC

Transformation Order thus complements prior decisions and did not overturn or supersede them. See id.; see also

USF/ICC Transformation Order, Order, 27 FCC Rcd 605, 613, para. 25 (WCB 2012).

65 Petition at 21–22.

66 See Access Charge Reform, Reform of Access Charges Imposed by Competitive Local Exchange Carriers,

Seventh Report and Order and Further Notice of Proposed Rulemaking, 16 FCC Rcd 9923 (2001) (2001 CLEC

Access Charge Order) (permitting CLECs to tariff qualifying rates and limiting complaint challenges regarding the

reasonableness of such qualifying rates); Qwest Commc’ns Co. v. N. Valley Commc’ns, Memorandum Opinion and

Order, 26 FCC Rcd. 8332 (2011) (finding CLEC’s tariff violated section 201(b) of the Act); AT&T Corp. v. YMax

Commc’ns Corp., Memorandum Opinion and Order, 26 FCC Rcd 5742 (2011) (finding that CLEC violated Sections

201(b) and 203 of the Act by billing for services not covered by the terms of its tariff); Qwest Commc’ns Co., LLC v.

Sancom, Inc., Memorandum Opinion and Order, 28 FCC Rcd. 1982 (Enf. Bur. 2013) (same). See also Qwest

Commc’ns Corp. v. Farmers & Merchs. Mut. Tel. Co., Second Order on Reconsideration, 24 FCC Rcd. 14801

(2009), recon. denied, 25 FCC Rcd. 3422 (2010), aff’d, 668 F.3d 714 (D.C. Cir. 2011) (same with respect to

incumbent local exchange carrier). Cf. USF/ICC Transformation Order, 26 FCC Rcd 17663 (finding that revised

rules will facilitate the Commission’s complaint enforcement processes).

67 See USF/ICC Transformation Order, 26 FCC Rcd at 17676, para. 33; 17873, para. 649; 17875, paras. 662–63.

68 Defendants argue that a number of the Order’s findings “are in violation of the Commission’s rules governing

access stimulation.” See Petition at 20–21. Yet the Defendants fail to identify any particular rules in support of

their assertion, beyond those promulgated by the prospective USF/ICC Transformation Order. Moreover, in many

instances, Defendants’ arguments are not supported by the authority they cite. Compare Petition at 21, with Order,

26 FCC Rcd at 3483–84, para. 17; 3488–89, paras. 25, 27.

8

image09-00.jpg612x792

Federal Communications Commission

FCC 14-84

Order does not, as Defendants contend, “expressly legitimize” access stimulation in every instance.69 Nor

does it insulate the Defendants from the consequences of a finding that their conduct was unjust,

unreasonable, and unlawful, in violation of the Act and the Commission’s rules.70

C.

We Dismiss Beehive’s Petition for Reconsideration.

18.

In order to seek reconsideration of a Commission order in an adjudicatory proceeding to

which it was not a party, a petitioner must (1) demonstrate with particularity that the petitioner’s

“interests are adversely affected” by the order, and (2) show that the petitioner has “good reason why it

was not possible for [the petitioner] to participate in the earlier stages of the proceeding.”71 Beehive fails

to satisfy either requirement.

19.

Beehive maintains that its interests are adversely affected by the Order because other

interexchange carriers could use the Commission’s “sham entity” finding as precedent in an action

seeking damages from Beehive.72 Beehive has not identified any actual damages or economic injury it

has sustained as a result of the Order; rather, it focuses exclusively on potential future or hypothetical

damages. The Commission has made clear, however, that a party is neither adversely affected nor

aggrieved by “the mere precedential value of an adjudicatory order in a section 208 complaint

proceeding.”73

20.

Beehive next asserts that the Order deprives it of its constitutional due process right to a

fair hearing in connection with the “sham arrangement” issue that the United States District Court for the

District of Utah referred to the Commission in separate litigation involving Beehive, Sprint

Communications Company L.P. (Sprint), and All American.74 In Beehive’s view, the Order prejudged

the “sham arrangement” issue referred in the Utah Referral Order, and the Commission purportedly did

not afford Beehive “proper notice and . . . an opportunity to present a defense” before issuing the Order.75

But the Order contained no findings that Beehive violated Section 201(b), which is what Beehive

contends triggered notice and due process obligations.76 The Commission’s complaint proceedings are a

matter of public record, and the Commission was under no obligation to notify Beehive—which was not a

party to this proceeding—of the allegations relating to it. Regardless, it is undisputed that Beehive was

69 Neither Defendants’ argument regarding the USF/ICC Transformation Order’s definition of “revenue sharing

agreements,” Petition at 21–22, nor their argument concerning other carriers’ tariffs that were amended to include

“chat” and conference operators in their definitions of “end user,” Petition at 22–23 (citing Reply Brief at 5), has any

bearing on our determinations in this order concerning whether Defendants complied with their tariffs.

70 See Reply at 4.

71 47 C.F.R. § 1.106(b)(1).

72 Beehive Petition at 10; Beehive Reply at 3.

73 All Am. Tel. Co. v. AT&T Corp., Order, 26 FCC Rcd 15016, 15017–18, para. 6 (Enf. Bur. 2011). See also AT&T

Corp. v. Bus. Telecom, Inc., Order on Reconsideration, 16 FCC Rcd 21750, 21752–54, paras. 6–7 (2001)

(“Petitioners have not directed us to any Commission or court case law suggesting that the precedential value of an

adjudicatory order in a section 208 complaint proceeding can ‘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.”).

74 Beehive Petition at 10; Beehive Reply at 3–4. See Beehive Tel. Co., Inc., Beehive Tel. Co. of Nevada, Inc. v.

Sprint Commc’ns, Co., L.P. v. All Am. Tel. Co., Inc., Order of Referral to the Federal Communications Commission,

No. 2:08-cv-00380 (C.D. Utah Dec. 7, 2012) (Utah Referral Order).

75 Beehive Petition at 11, 15–17; Beehive Reply at 3–4, 9–10.

76 Beehive Petition at 10.

9

image10-00.jpg612x792

Federal Communications Commission

FCC 14-84

fully aware of the allegations in AT&T’s complaint that resulted in the Order, and that Beehive chose not

to intervene in the proceeding.77

21.

Nor has the Order deprived Beehive of the opportunity to have the issues raised in the

Utah Referral Order heard by a neutral decision-maker.78 The Utah Referral Order requests the

Commission’s guidance regarding the application of Beehive’s tariff when considered in the context of

undisputed facts.79 Beehive’s tariff was not at issue in the Order, and the Commission made no

determinations regarding Beehive’s tariff or whether Beehive’s conduct violated Section 201(b) of the

Act.80 Beehive has no basis for claiming that it has been denied due process before it even has had the

opportunity to present its defenses to Sprint’s claims.81 Nor is Beehive correct in assuming that the

Commission will not give Beehive a full and fair opportunity to defend itself. Beehive will have ample

opportunity, consistent with the terms of the Utah Referral Order,82 to present its legal arguments and

defenses regarding the issues identified in the Utah Referral Order during the course of the Sprint

complaint proceedings,83 and those issues will be decided based on the record in that case.84

77 See infra para. 22.

78 Beehive Petition at 10, 15–17; Beehive Reply at 8–10.

79 See Utah Referral Order at 2, para. 5 (referring to the Commission, among other issues, the question of “whether

Beehive . . . provided switched access service or any other service to Sprint under the applicable tariffs” and

“whether the relationship between Beehive and [All American] and/or Joy Enterprises, Inc. was a so-called sham

arrangement within the meaning of any particular FCC doctrine and, if so, what is the effect of that determination in

the application of the tariffs at issue in this case”). The Utah Referral Order stated that Beehive may not dispute the

facts identified as “undisputed” in the Utah Referral Order in “proceedings before the FCC or in further proceedings

in [the] court.” Utah Referral Order at 5, para. 8.

80 The “general rule” is that a party is “not bound by a judgment in personam in litigation in which he is not

designated as a party or to which he has not been made a party by service of process.” Taylor v. Sturgell, 553 U.S.

880, 893 (2008); see also TSR Wireless v. US West Commc’ns, Memorandum Opinion and Order, 15 FCC Rcd

11166, 11173–74, para. 15 (2000) (under the doctrine of collateral estoppel, a “judgment in a prior suit precludes

relitigation by the same parties of issues actually litigated and necessary to the outcome of the first action”)

(emphasis added).

81 Beehive Petition at 11.

82 Although Beehive disputes the Enforcement Bureau’s decision to comply with Utah Referral Order’s directive

concerning undisputed facts, see Beehive Petition at 13, 17, its objection is properly directed to the District Court,

not the Commission.

83 Sprint filed its complaint against Beehive—which effectuates the Utah court’s referral, on July 30, 2013. See

Formal Complaint of Sprint Communications Company L.P., File No. EB-13-MD-013 (filed July 30, 2013) (Sprint

Complaint).

84 Beehive argues that this proceeding should be consolidated with the Sprint v. Beehive complaint proceeding, and

that the Enforcement Bureau’s Market Disputes Resolution Division should be recused from further participation in

the consolidated proceeding. Beehive Petition at 8-9, 12, 16-17. Beehive advanced similar arguments in a Motion

to Consolidate and Reassign (which it filed in this case and in Sprint v. Beehive), and the Bureau considered and

rejected them. See AT&T Corp. v. All Am. Tel. Co., File No. EB-09-MD-010 and Sprint Commc’ns Co., L.P. v.

Beehive Tel. Co., Inc., File No. EB-13-MD-003, Order, 28 FCC Rcd 15772 (Enf. Bur. 2013) (Motion to Consolidate

and Reassign Order). Beehive sought review of the Motion to Consolidate and Reassign Order in an application for

review (again, filed in both proceedings). See Application for Review, File Nos. EB-09-MD-010, EB-13-MD-003

(filed Dec. 5, 2013) (Application for Review). We find the Bureau’s analysis to be thorough and well-reasoned, and

we see no reason to disturb its conclusions. Because Beehive is not a party to this proceeding, and it has failed to

satisfy the requirements for seeking reconsideration of the Commission’s Order in this proceeding, its Application

for Review should be considered in the Sprint v. Beehive case only. See 47 U.S.C. §§ 154(i), (j). Consequently, we

will address the Application for Review in that proceeding.

10

image11-00.jpg612x792

Federal Communications Commission

FCC 14-84

22.

Beehive offers no credible justification for failing to seek to intervene earlier in this

proceeding. To begin, Beehive’s reliance upon the notice requirement in Section 1.223(a) of the

Commission’s rules, which concerns proceedings designated for hearing in cases involving applications

for construction permits and station licenses, is misplaced.85

This rule is inapplicable here because this

case has not been designated for hearing and does not involve applications for construction permits and

station licenses. Although in Section 208 complaint cases the Commission has looked to rule 1.223(b)’s

standards for intervention (i.e., whether the party has an interest in the proceeding and how participation

will assist the Commission),86 it has not adopted that rule’s notice requirement outside of the cases which

the rule governs. Moreover, notice to Beehive would have been completely unnecessary. As Beehive

readily admits, for more than two years prior to release of the Order, it knew of the claims implicating its

conduct and could have sought leave to participate in the case.87 Beehive chose not to.88 AT&T v.

BellSouth,89 which Beehive cites,90 articulates the standard the Commission uses when evaluating

petitions for reconsideration by non-parties in complaint proceedings, and it supports denial of the

Beehive Petition because Beehive could have attempted to intervene in this case if it were concerned

about protecting its rights.91 The public record in this case gave Beehive “every reason to understand that

85 47 C.F.R. § 1.223(a). See Beehive Reply at 4–6. See also Tex. Cable and Telecommunications Ass’n v. GTE Sw.,

Inc., Order, 17 FCC Rcd 6261, 6264, para. 9 (2002) (“Section 1.223 is not directly applicable in [pole attachment

complaint proceedings] because it applies to cases designated for hearing.”).

86 See Teleconnect Co. v. The Bell Co. of Pa., Memorandum Opinion and Order, 6 FCC Rcd 5202, 5206, para. 19,

n.52 (Com. Car. Bur. 1991), aff’d on review, 10 FCC Rcd 1626 (1995) (“Although [Section 1.223(b)] addresses

intervention in an evidentiary hearing, we believe it to be a useful standard when considering the petition before

us.”). See also All Am. Tel. Co., et al. v. AT&T Corp., Order, 26 FCC Rcd 15016, 15018, para. 9 (Enf. Bur. 2011)

(citing rule 1.223’s requirements that a party seeking intervention show 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”).

87 Indeed, in November 2009, AT&T took the deposition of Beehive’s CEO. Defendants Exhibit No. 4, Deposition

of James Charles McCown. See Beehive Petition at 11–12 (“Beehive could have attempted to intervene in this

proceeding”); Beehive’s Motion to Refer Issues to the FCC Under the Doctrine of Primary Jurisdiction, Civil No.

2:08-cv-00380 at 14-15 (C.D. Utah July 26, 2010) (“Moreover, allegations that Beehive and [All American] were

involved in a traffic pumping ‘scheme’ are before the FCC, as is the precise question of whether [All American]

operated as a sham entity in violation of [Section] 201(b) . . . . Today, the issues are pending in an AT&T case

against [All American], e-Pinnacle and ChaseCom in which AT&T names Beehive among the ‘relevant non-

parties.’”).

88 That the Commission disfavors intervention in complaint proceedings and does not have a specific rule regarding

intervening in complaint proceedings does not excuse Beehive’s failure to request intervention in this case. See

Beehive Petition at 10–11. Indeed, Teleconnect v. Bell Telephone, which Beehive relies upon (Petition at 11)

demonstrates that the Commission will consider properly-supported petitions to intervene. See Teleconnect v. Bell

Telephone, 6 FCC Rcd at 5206, para. 19 (“At the very least, a petitioner for intervention must demonstrate an

interest in the proceedings, show how the petitioner’s participation will assist the Commission in determining the

issues in question, and set forth any additional proposed issues.”).

89 AT&T Corp. v. BellSouth Telecommunications, Inc., Order on Reconsideration, 20 FCC Rcd 8578 (2005) (AT&T

v. BellSouth).

90 See Beehive Petition at 10–11; Beehive Reply at 4.

91 See AT&T v. BellSouth, 20 FCC Rcd at 8580, para. 6 (“. . . Sprint had every right and opportunity to petition to

file an amicus brief or seek to intervene”). See generally, AT&T Corp. v. Business Telecom, Inc., Order on

Reconsideration, 16 FCC Rcd at 21754, n.21 (2001) (stating that, in a formal complaint proceeding, “[w]e will . . .

consider on a case-by-case basis motions by non-parties wishing to submit amicus-type filings addressing the legal

issues raised in this proceeding”) (quoting Pleading Cycle Established for AT&T Corp. v. Ameritech Corp., Public

Notice, 13 FCC Rcd 12057, 12058 (Com. Car. Bur. 1998)). See, e.g., Heritage Cablevision Assocs. v. Tex. Utilities

Elec. Co., Memorandum Opinion and Order, 7 FCC Rcd 4192, 4192, paras. 6–7 (1992) (dismissing a non-party’s

(continued . . .)

11

image12-00.jpg612x792

Federal Communications Commission

FCC 14-84

one option available to the Commission” was to find that Beehive was instrumental to the sham,92 and

Beehive can hardly claim “surprise” by the Commission’s findings to that effect.93

23.

Similarly unavailing is the contention that Commission staff thwarted Beehive’s “last-

ditch effort to participate in this proceeding” by failing to hold the Order in abeyance pending the filing

of Sprint’s complaint effectuating the Utah Court Referral, which purportedly would have allowed

Beehive to seek consolidation of the two cases.94 This argument misses the point because it wrongly

assumes that Beehive could not have participated at the Commission until Sprint filed its complaint.

Beehive could have filed a motion to intervene years earlier when it learned that its conduct figured

prominently in AT&T’s claims against the Defendants.95 In all events, consolidating the two proceedings

when the draft Order was on the verge of circulation would have made no sense.96 The parties in this

case generated a vast record.97 Consolidation would have meant injecting new parties (Sprint and

Beehive), as well as different tariffs, tariff periods, and defenses, into the proceeding after the record had

closed. Moreover, the Commission would have had to devise a way to reconcile the Utah Referral

(Continued from previous page . . .)

Petition for Reconsideration of an order in an adjudicatory proceeding, where the non-party “failed to attempt to

participate either as an intervenor or amicus,” though it “could have moved the Commission for leave to participate,

either as amicus or intervenor, [even] after the pleading cycle closed.”).

92 See AT&T v. BellSouth, 20 FCC Rcd at 8580–81, para. 6. See, e.g., Amended Formal Complaint of AT&T Corp.,

File No. EB-09-MD-010 at 14, paras. 26, 29–34, paras. 54–60, 38–41, paras. 68–71 (filed Apr. 30, 2010); Initial

Brief of AT&T Corp. in Support of Amended Complaint, File No. EB-09-MD-010 at 19–20 (filed Dec. 20, 2010);

Reply Brief of AT&T Corp. in Support of Amended Formal Complaint, File No. EB-09-MD-010 at 3 (filed Jan. 14,

2011) (“AT&T’s Complaint clearly alleged that Beehive was an active participant with the CLECs in the sham

arrangements at issue.”).

93 See AT&T v. BellSouth, 20 FCC Rcd at 8580–81, para. 6. Nor can Beehive blame Sprint for Beehive’s failure to

intervene. See Beehive Petition at 11–13. Whatever Sprint’s litigation strategy might have been, Beehive, of

course, is responsible for protecting its own legal interests. Similarly, Beehive gets no traction from its complaint

that it chose not to pursue intervention prior to the Utah Court Referral because it would have been faced with the

burden of simultaneously litigating the sham-entity issue in court and at the Commission, risking conflicting

decisions. Beehive Petition at 12. That risk existed whether Beehive intervened or not, because Beehive was

actively defending and pursuing in multiple fora claims that implicated the sham-entity issue. See Beehive’s

Petition for Declaratory Ruling, WC Docket No. 10-36 (filed Feb. 2, 2010); Consideration of the Rescission,

Alteration, or Amendment of the Certificate of Authority of All American to Operate as a Competitive Local

Exchange Carrier Within the State of Utah, Public Service Commission of Utah, Docket No. 08-2469-01, Report

and Order at 9–12 (Apr. 26, 2010) (reflecting Beehive’s participation in proceedings directed at rescinding All

American’s Certificate of Public Convenience and Necessity). Beehive also initiated discussions with Commission

staff in November 2010 regarding the prospect of filing a formal complaint against Sprint. See Letter Ruling dated

June 21, 2013 from Christopher Killion, Associate Chief, Enforcement Bureau, to Russell D. Lukas, Counsel for

Beehive, Gary R. Guelker, Counsel for All American, Marc A. Goldman and William Lawson, Counsel for Sprint at

7, n.37.

94 Beehive Petition at 12–13.

95 See supra para. 22, note 88.

96 In December 2012, Beehive asked the Commission to “consider whether Sprint’s complaint should be

consolidated for disposition with the AT&T complaint pursuant to § 1.735(a) of the rules.” Letter from Russell D.

Lukas, counsel for Beehive, to Anthony J. DeLaurentis, MDRD (dated Dec. 12, 2012) (on file in File No. EB-13-

MD-003).

97 Order, 28 FCC Rcd at 3487–88, para. 24, n.104 (noting that the record “exceeds 7,000 pages, including pleadings,

discovery responses, deposition transcripts, court exhibits, Utah PSC exhibits, and other miscellaneous documents”).

The record also includes deposition testimony of several Beehive officers and employees and Beehive’s discovery

responses. See, e.g., id. at 3480–84, paras. 12–14, 16–17 nn. 34, 36, 40, 43, 51–52, 54, 60, 62–65; 3488–89, paras.

26–28, nn. 112, 115, 118, 120–22.

12

image13-00.jpg612x792

Federal Communications Commission

FCC 14-84

Order’s directive regarding the parties (including Beehive) not disputing the undisputed facts detailed in

the Utah Referral Order with the absence of any such limitation in the First Court Referral Order or the

Second Court Referral Order giving rise to the instant litigation. Staff appropriately exercised its

discretion not to consolidate the cases.98

IV.

ORDERING CLAUSES

24.

Accordingly, IT IS HEREBY ORDERED, pursuant to Sections 4(i), 4(j), 201, 203, 208,

and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 201, 203, 208,

405, and Section 1.106 of the Commission’s rules, 47 C.F.R. § 1.106, that the Petition of All American

Telephone Co., Inc., e-Pinnacle Communications, Inc., and ChaseCom for Reconsideration and

Clarification is DISMISSED on procedural grounds and, as an independent and alternative basis for this

decision, DENIED for the reasons stated herein.

25.

Accordingly, 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), 208, and Sections 1.41 and 1.727

of the Commission’s rules, 47 C.F.R. §§ 1.41, 1.727, that All American’s Emergency Motion to Address

Jurisdictional and Due Process Issues is DENIED.

26.

Accordingly, IT IS FURTHER ORDERED, pursuant to Sections 4(i), 4(j), 201, 203, 208,

and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 201, 203, 208,

405, and Section 1.106 of the Commission’s rules, 47 C.F.R. § 1.106, that Beehive’s Petition for

Reconsideration is DISMISSED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

98 See 47 C.F.R. § 1.735(a). See also Motion to Consolidate and Reassign Order at 2.

13

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.