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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
Cavalier Telephone, LLC, )
)
Complainant, )
)
v. ) File No. PA-99-005
)
Virginia Electric and Power Company )
d/b/a Virginia Power, )
)
Respondent. )
)
ORDER
Adopted: December 2, 2002 Released: December
3, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. This Order resolves several outstanding proceedings in a
long-running, multi-forum dispute between Cavalier Telephone,
LLC (``Cavalier'') and Virginia Electric and Power Company
(``Dominion''). The parties indicate that they have settled
all the issues in dispute in their various proceedings and
have filed several joint motions as part of their settlement.
In this Order, we grant the parties' joint motion to withdraw
two applications for review filed by Dominion, and a joint
motion to withdraw a motion for immediate affirmance and
enforcement of a Cable Services Bureau order1 addressing a
complaint Cavalier filed against Dominion pursuant to section
224 of the Communications Act of 1934, as amended (``Act'').2
We also grant, in a separate order, a joint motion to dismiss
another complaint Cavalier filed against Dominion on April 1,
2002.3 Finally, as part of their global settlement and
dismissal of pending proceedings, the parties have also
jointly moved to vacate the June 7 Bureau Order. Based on the
particular circumstances present here, we grant the joint
motion to vacate as well.
II. BACKGROUND
2. Dominion provides electric and telecommunications services
in Virginia.4 Cavalier is a facilities-based competitive
local exchange carrier (``LEC'') that, at the time this
dispute arose, was constructing a fiber optic network in
Richmond, Tidewater and Northern Virginia, with the intent to
offer local telephone service, high-speed Internet access and
Internet caller identification in these areas.5 As part of
its network construction, Cavalier sought to attach equipment
to Dominion's poles.6 This effort spawned multiple
adjudications.
3. Because the parties' settlement and requested vacatur
resolves the multiple proceedings that remain between the two
parties, it is important to understand the general nature of
these proceedings. Thus, set forth below is a summary of the
various proceedings between Cavalier and Dominion, including
Commission proceedings, federal and state court actions,
appellate proceedings, arbitration proceedings, and
mediations.
4. The Commission Complaint. On November 30, 1999, Cavalier
filed a complaint (``Complaint'') against Dominion pursuant to
the Commission's pole attachment complaint procedures alleging
that ``it has been effectively denied access to poles owned by
[Dominion].''7 Specifically, Cavalier sought an order
compelling Dominion to grant Cavalier access to all support
structures and right-of-ways, cease engaging in or imposing
unreasonable and discriminatory terms, conditions, and
practices for access to Dominion's poles, and to refund to
Cavalier ``excessive rental and other administrative,
engineering, and make-ready fees.''8 In addition, Cavalier
argued that Dominion had imposed an unlawful pole attachment
rate, and requested that the rate be reduced to the maximum
rate permitted pursuant to the Commission's pole attachment
rate formula.9
5. The June 7 Bureau Order. In the June 7 Bureau Order, the
Cable Services Bureau largely granted the Complaint. The
Cable Services Bureau deferred consideration of the pole
attachment rate issue, however, and ordered Dominion to
provide additional information that would enable the Cable
Services Bureau to calculate the appropriate pole attachment
fee.10
6. The September 18 Bureau Order. On September 18, 2000, the
Cable Services Bureau released an order addressing the
reasonableness of Dominion's pole attachment rate.11 The
Cable Services Bureau determined that the rates charged by
Dominion were unjust and unreasonable, and ordered Dominion to
reimburse Cavalier for charges over a certain amount beginning
the date the Complaint was filed, November 30, 1999.12
7. The Applications for Review and Motion for Immediate
Affirmance. On July 7, 2000, Dominion filed an Application
for Review of the June 7 Bureau Order, in which Dominion
lodged multiple grounds for reversing the Cable Services
Bureau's June 7 Bureau Order.13 Further, on October 18, 2000,
Dominion filed an Application for Review of the September 18
Bureau Order14 requesting that the Commission reverse the
September 18 Bureau Order. Cavalier opposed Dominion's
Applications for Review.15 Further, on February 20, 2001,
Cavalier filed a motion requesting that the Commission affirm
and enforce the June 7 Bureau Order.16 Cavalier's motion
asserted that Dominion refused to comply with the June 7
Bureau Order, and that continued noncompliance would cause
Cavalier irreparable harm.
8. Related Proceedings. On the same day that Cavalier filed
its Motion for Immediate Affirmance and Enforcement at the
Commission, Cavalier also petitioned the United States
District Court for the Eastern District of Virginia for the
enforcement of the June 7 Bureau Order.17 Cavalier maintained
that Dominion had not complied with the June 7 Bureau Order
and sought an injunction requiring certain actions by
Dominion.18 The court issued a temporary restraining order
against Dominion on February 23, 2001, and a preliminary
injunction on April 13, 2001, granting in part and denying in
part the relief sought by Cavalier.19
9. Both parties appealed the district court's order to the
United States Court of Appeals for the Fourth Circuit.20 On
August 30, 2002, the Fourth Circuit reversed and remanded the
case to the district court with instructions to dismiss the
complaint on the ground that Cavalier had failed to exhaust
its administrative remedies.21 The Court of Appeals
subsequently denied Cavalier's petition for rehearing, and
also denied Cavalier's motion to stay issuance of the mandate
pending application to the United States Supreme Court for a
writ of certiorari.22
10. The dispute between the parties also spread into an
alternative dispute resolution forum. On February 26, 2002,
the parties participated in a day-long mediation of some of
their outstanding claims.23 The mediation was unsuccessful,
and Dominion then filed with the American Arbitration
Association (``AAA'') a Demand for Arbitration of alleged
outstanding payments due it by Cavalier.24 After litigating
the arbitrability of the matter, the AAA concluded that it had
jurisdiction to arbitrate the matter and would do so, but
stayed the arbitration pending resolution of yet another pole
attachment complaint Cavalier filed with the Commission on
April 1, 2002.25 That pole attachment complaint alleges,
among other things, that Dominion's attempt to compel
arbitration before the AAA violated the June 7 Bureau Order
and thereby created an unjust and unreasonable term and
condition of attachment in violation of section 224 of the
Act.26
11. Apparently not satisfied with their attempts to obtain
relief at the Commission, in federal court, and in
arbitration, the parties initiated proceedings in yet another
venue ¾ state court. On April 12, 2002, Dominion filed a
Motion to Compel Arbitration in the Circuit Court for the City
of Richmond, Virginia, pursuant to the Uniform Arbitration
Act.27 Cavalier removed the Motion to Compel Arbitration to
the United States District Court for the Eastern District of
Virginia, and Dominion filed a Motion to Remand.28 By order
dated May 21, 2002, the federal district court remanded the
Motion to Compel Arbitration to the state court.29 Following
remand, the Circuit Court for the City of Richmond entered an
order on June 12, 2002, requiring the parties to arbitrate.30
Cavalier filed a Notice of Appeal to the Virginia Supreme
Court, but later dismissed the Appeal.31
12. On April 29, 2002, Cavalier filed a ``Motion to Lift Stay
and for Contempt'' in the United States District Court for the
Eastern District of Virginia, claiming that Dominion's demand
for arbitration filed with the AAA and its motion to compel
arbitration in state court conflicted with the federal court's
orders enforcing the June 7 Bureau Order.32 The district
court denied Cavalier's motion in an opinion and order entered
June 11, 2002.33 Cavalier filed a Motion to Alter or Amend
the district court's judgment pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure, which the district court
also denied.34
13. On June 30, 2002, the parties participated in mediation at
the Commission in an attempt to resolve the disputes at issue
in the cases pending before the Commission.35 The mediation
was unsuccessful.
14. The Current Motions. On November 6, 2002, the parties
reported to the Commission that they had reached a global
settlement of all the issues between them.36 As part of that
settlement, the parties jointly filed three motions in this
proceeding: a joint motion to vacate the June 7 Bureau Order;
a joint motion to withdraw the Applications for Review of the
June 7 Bureau Order and the September 18 Bureau Order;37 and a
joint motion to withdraw the Motion for Immediate Affirmance
and Enforcement of the June 7 Bureau Order.38 In addition,
the parties filed a joint request to dismiss the complaint in
Cavalier II.39 The parties further indicate that settlement
will also result in dismissal of all other proceedings between
the parties in federal and state court and in arbitration.40
III. DISCUSSION
A. We Grant the Motion to Vacate the June 7 Bureau Order.
15. In connection with settlement of their multi-forum dispute,
the parties have jointly requested that we vacate the June 7
Bureau Order. The parties state that vacatur of this order
``is a lynchpin to the global settlement'' of their long-
running dispute.41 Specifically, the parties argue that the
June 7 Bureau Order failed to clarify the rights and
obligations of the parties, and that ``competing
interpretations'' of certain portions of the June 7 Bureau
Order ``have engendered a series of new disputes,'' and
generally ``muddl[ed] the parties' relationship and cloud[ed]
their operations.''42 The parties maintain that ``vacatur
will allow the parties to implement a settlement that will
resolve, with certainty, their myriad issues, free of the
future threat and burden of litigating the interpretation and
application'' of the June 7 Bureau Order.43 The parties
indicate that, absent the global settlement and vacatur, ``the
Commission should anticipate a third pole attachment complaint
filed by Cavalier, as well as subsequent Applications for
review, and appeals to the federal court of appeals,'' that
challenge the new pole attachment rates imposed by Dominion.44
16. Although rare, the Commission previously has vacated orders
in connection with approval of a settlement agreement.45
Consistent with the Supreme Court's decision in U.S. Bancorp
Mortgage Company v. Bonner Mall Partnership,46 however, the
Commission has stated that it will not routinely vacate orders
in connection with settlements, but will do so only where
``the parties make a showing of some special circumstances
beyond the mere fact that the case has been settled.''47 In
making this determination, the Commission considers the public
interest in maintaining any precedential effect of the order
in question.48
17. We find that, under the unique circumstances presented here,
vacatur of the June 7 Bureau Order is in the public interest,
because it will bring to an end the multiple and related
lawsuits burdening the dockets of the Commission, the courts,
and an alternative dispute resolution forum. As described
above, the global settlement between the parties would dispose
of several Commission proceedings, including two Applications
for Review and a Motion for Immediate Affirmance in this
action, as well as a separate but related complaint proceeding
between the parties. The settlement will also bring to an end
existing proceedings in other venues as well. Moreover, as
evidenced by the scope of the litigation between the parties
to date,49 both the Commission and the courts are faced with
the prospect of future litigation between the parties on these
and related issues.50 In addition to resolving the numerous
existing proceedings, the settlement and requested vacatur
promise to stave off the undoubtedly complex and time-
consuming litigation between the parties that would otherwise
inevitably occur.
18. In our view, the resolution of these myriad legal actions,
both those now pending and those anticipated to be filed,
which would otherwise require the expenditure of substantial
time and resources of both the Commission and the courts,
constitutes ``special circumstances'' necessary to warrant
vacatur of the June 7 Bureau Order. As the history of the
parties' disputes makes clear, this is not a case in which two
parties to a single complaint proceeding seek vacatur of an
order as part of settlement of a single proceeding.
19. We conclude that the opportunity to resolve these numerous
proceedings in multiple fora outweighs our general interest in
preserving the June 7 Bureau Order. Accordingly, we grant the
parties' joint motion to vacate the June 7 Bureau Order. We
wish to emphasize, however, that our decision to vacate the
June 7 Bureau Order does not reflect any disagreement with or
reconsideration of any of the findings or conclusions
contained in the June 7 Bureau Order.
B. We Grant the Motion to Withdraw the Applications For Review
of the June 7 Bureau Order and the September 18 Bureau
Order.
20. As part of their global settlement and requested vacatur,
the parties jointly moved to withdraw Dominion's Application
for Review of the June 7 Bureau Order, as well as Dominion's
Application for Review of the September 18 Bureau Order.51
The parties maintain that they ``have agreed to negotiate in
good faith a pole attachment agreement that the parties
believe will provide mutually agreeable stability in the
working relationship between the two companies.''52
Therefore, and in conjunction with their joint motion to
vacate, the parties move that we dismiss the Applications for
Review without prejudice.53
21. We grant the parties' Motion to Withdraw the Applications
for Review, without prejudice. We find that withdrawal of the
Applications for Review at this stage is appropriate, and will
serve the public interest by promoting the private resolution
of disputes and by eliminating the need for further litigation
and the expenditure of additional time and resources of the
parties and this Commission.
C. We Grant the Motion to Withdraw the Motion for Immediate
Affirmance and Enforcement of the June 7 Bureau Order.
22. Also as part of their global settlement and requested
vacatur, the parties jointly moved to withdraw Cavalier's
Motion for Immediate Affirmance and Enforcement of the June 7
Bureau Order.54 For the same reasons set forth above, we
grant the parties' Motion to Withdraw the Motion for Immediate
Affirmance and Enforcement of the June 7 Bureau Order, without
prejudice. We find that withdrawal of this motion at this
stage is appropriate, and will serve the public interest by
promoting the private resolution of disputes and by
eliminating the need for further litigation and the
expenditure of additional time and resources of the parties
and this Commission.55
IV. ORDERING CLAUSES
23. ACCORDINGLY, IT IS ORDERED, pursuant to sections 1, 4(i),
4(j), and 224 of the Communications Act of 1934, as amended,
47 U.S.C. §§ 151, 154(i), and 224, and section 1.1415 of the
Commission's rules, 47 C.F.R. § 1.1415, 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 Order and Request
for Information issued by the Cable Services Bureau on June 7,
2000 in the above-captioned proceeding, Cavalier Telephone,
LLC v. Virginia Electric and Power Company, Order and Request
for Information, 15 FCC Rcd 9563 (Cable Serv. Bur. 2000), IS
VACATED in its entirety.
24. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j),
and 224 of the Communications Act of 1934, as amended, 47
U.S.C. §§ 151, 154(i), and 224, and section 1.1415 of the
Commission's rules, 47 C.F.R. § 1.1415, 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 parties' Consent
Motion to Withdraw Applications for Review of June 7, 2000 and
September 18, 2000 Orders of the Cable Services Bureau without
prejudice in the above-captioned proceeding IS GRANTED in its
entirety.
25. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j),
and 224 of the Communications Act of 1934, as amended, 47
U.S.C. §§ 151, 154(i), and 224, and section 1.1415 of the
Commission's rules, 47 C.F.R. § 1.1415, 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 parties' Consent
Motion for Leave to Withdraw Motion for Immediate Affirmance
and Enforcement of June 7, 2000 Order of the Cable Services
Bureau without prejudice in the above-captioned proceeding IS
GRANTED in its entirety.
26. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j),
and 224 of the Communications Act of 1934, as amended, 47
U.S.C. §§ 151, 154(i), and 224, and section 1.1415 of the
Commission's rules, 47 C.F.R. § 1.1415, and authority
delegated by sections 0.111, and 0.311 of the Commission's
rules, 47 C.F.R. §§ 0.111, 0.311, that Cavalier's Motion for
Leave to File Motion for Immediate Affirmance and Enforcement
of Bureau Order, filed February 20, 2001, IS DISMISSED as
moot.
27. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j),
and 224 of the Communications Act of 1934, as amended, 47
U.S.C. §§ 151, 154(i), 154(j), and 224, and section 1.1415 of
the Commission's rules, 47 C.F.R. § 1.1415, 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 above-captioned
complaint proceeding IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 Cavalier Telephone, LLC v. Virginia Electric and Power
Company, Order and Request for Information, 15 FCC Rcd 9563
(Cable Serv. Bur. 2000) (``June 7 Bureau Order'').
2 47 U.S.C. § 224 (``Pole Attachment Act'').
3 Cavalier Telephone, LLC v. Virginia Electric and Power
Company, Order, File No. EB-02-MD-005 (MDRD-Enf. Bur. rel.
December 3, 2002).
4 June 7 Bureau Order at 9567, ¶¶ 8-9.
5 Id. at 9566-67, ¶ 8.
6 Id. at 9567, ¶ 9.
7 Id. at 9567, ¶ 9. Absent regulation by a particular
state, the Commission must regulate the rates, terms, and
conditions for attachments by a cable television system or
telecommunications service provider to poles, ducts, conduits,
and rights-of-way owned or controlled by utilities. 47 U.S.C. §
224(b), (c). To this end, the Commission has established
procedures to resolve complaints regarding the rates, terms, and
conditions relating to pole attachments. See 47 C.F.R. §§ 1.1401
et seq.
8 June 7 Bureau Order at 9567, ¶ 9.
9 Id. at 9567, ¶ 9.
10 June 7 Bureau Order, 15 FCC Rcd at 9573-4, 9578, ¶¶ 21,
33-34.
11 Cavalier Telephone, LLC v. Virginia Electric and Power
Company, Order, 15 FCC Rcd 17962 (Cable Serv. Bur. 2000)
(``September 18 Bureau Order'').
12 September 18 Bureau Order, 15 FCC Rcd at 17963-4, ¶ 4.
13 Cavalier Telephone, LLC v. Virginia Electric and Power
Company, Application for Review of Virginia Electric and Power
Company, PA File No. 99-005 (filed July 7, 2000).
14 Cavalier Telephone, LLC v. Virginia Electric and Power
Company, Application for Review of Virginia Electric and Power
Company, PA File No. 99-005 (filed October 18, 2000).
15 Cavalier Telephone, LLC v. Virginia Electric and Power
Company, Opposition to Application for Review, PA File No. 99-005
(filed July 24, 2000); Cavalier Telephone, LLC v. Virginia
Electric and Power Company, Opposition to Application for Review,
PA File No. 99-005 (filed November 2, 2000).
16 Cavalier Telephone, LLC v. Virginia Electric and Power
Company, Motion for Immediate Affirmance and Enforcement of
Bureau Order, PA File No. 99-005 (filed February 20, 2001).
17 Cavalier Telephone, LLC v. Virginia Electric and Power
Company, Joint Motion to Vacate, PA File No. 99-005 (filed
November 6, 2002) at 2-3 (``Motion for Vacatur'').
18 Id. at 3.
19 Id. at 3, citing Cavalier Telephone, LLC v. Virginia
Electric and Power Company, Civ. No. 3:01CV106 (E.D. Va., Feb.
23, 2001).
20 Motion for Vacatur at 3.
21 Id., citing Cavalier Telephone, LLC v. Virginia
Electric and Power Company, 303 F.3d 316 (4th Cir. 2002).
22 Motion for Vacatur at 3.
23 Id.
24 Id.
25 Id. at 3-4. See Cavalier Telephone, LLC v. Virginia
Electric and Power Company, Complaint, File No. EB-02-MD-005
(filed Apr. 1, 2002) (``Cavalier II'').
26 Motion for Vacatur at 4.
27 Id.
28 Id.
29 Id., citing Virginia Electric and Power Company v.
Cavalier Telephone, LLC, Civ. Act. No. 3:02cv246 (E.D. Va. May
21, 2002).
30 Motion for Vacatur at 4, citing Virginia Electric and
Power Company v. Cavalier Telephone, LLC, Case No. HS-624-3
(Richmond Cir. Ct.).
31 Motion for Vacatur at 4.
32 Id.
33 Id. at 4-5, citing Cavalier Telephone, LLC v. Virginia
Electric and Power Company, Civ. Act. No. 3:01cv106 (E.D. Va.
June 11, 2002).
34 Motion for Vacatur at 5.
35 Id.
36 Id. at 2, 5.
37 Cavalier Telephone, LLC v. Virginia Electric and Power
Company, Consent Motion to Withdraw Applications For Review of
June 7, 2000 and September 18, 2000 Orders of the Cable Services
Bureau, PA File No. 99-005 (filed November 6, 2002) (``Motion to
Withdraw AFRs'').
38 Cavalier Telephone, LLC v. Virginia Electric and Power
Company, Consent Motion for Leave to Withdraw Motion for
Immediate Affirmance and Enforcement of June 7, 2000 Order of the
Cable Services Bureau, PA File No. 99-005 (filed November 6,
2002) (``Motion to Withdraw Affirmance Request'').
39 Cavalier Telephone, LLC v. Virginia Electric and Power
Company, Joint Notice of Settlement and Motion to Dismiss, File
No. EB-02-MD-005 (filed November 6, 2002). This motion was
granted in a separate order released simultaneously with this
one. See Cavalier Telephone, LLC v. Virginia Electric and Power
Company, Order, File No. EB-02-MD-005 (MDRD-Enf. Bur. rel.
December 3, 2002).
40 Motion for Vacatur at 2, 5, 8-9, 11.
41 Cavalier Telephone, LLC v. Virginia Electric and Power
Company, Letter from Charles A. Zdebski, Counsel for Dominion, to
Lisa B. Griffin, Deputy Chief, Market Disputes Resolution
Division, Enforcement Bureau, FCC, File Nos. PA-99-005 and EB-02-
MD-005 (September 30, 2002).
42 Motion for Vacatur at 10.
43 Id. at 11.
44 Id. at 8.
45 See Applications of Crystal Communications, et al.,
Order, 12 FCC Rcd 2149 (1997) (``Crystal Communications'');
Applications of Richard M. Carrus, et al., Order, 13 FCC Rcd 7049
(Admin. Law Div.-OGC 1998); GTE Telenet Comm. Corp. v. American
Tel. & Tel. Co., Memorandum Opinion and Order, 1986 WL 292091
(Com. Car. Bur. July 10, 1986).
46 513 U.S. 18 (1994).
47 Crystal Communications, 12 FCC Rcd at 2151, ¶ 6.
48 See, e.g., Aetna Casualty and Surety Co. v. Home
Insurance Co., 882 F. Supp. 1355 (S.D.N.Y. 1995).
49 See paras. 7-14, supra.
50 See Motion for Vacatur at 8.
51 Motion to Withdraw AFRs, supra n.35.
52 Id. at 2, ¶ 5.
53 Id. at 3.
54 Motion to Withdraw Affirmance Request, supra n.36.
55 In addition, we dismiss as moot Cavalier's Motion for
Leave to File Motion for Immediate Affirmance and Enforcement of
Bureau Order, PA File No. 99-005 (filed February 20, 2001).