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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Guam Telephone Authority ) ) Petition for Preemption Pursuant to) CWD 97-14 Sections 253(a) and ) 332(c)(3)(A) of the Communications Act) ) ORDER Adopted: August 20, 1997 Released: September 9, 1997 By the Commission: I. INTRODUCTION 1. In this order, we address a Petition for Preemption ("Petition") filed by Guam Telephone Authority ("GTA") on October 4, 1996. GTA requests, pursuant to Sections 253(d) and 332(c)(3)(A) of the Communications Act of 1934, as amended (the "Communications Act"), and Section 1.2 of the Commission's Rules that the Commission preempt enforcement of any provisions of the Organic Act of Guam, the Guam Telephone Authority Act of 1973, and any other Guam statutes, regulations, or legal requirements that may prevent GTA from providing Personal Communications Services ("PCS") in the Commonwealth of the Northern Mariana Islands ("the CNMI"). For the reasons discussed below, we find that GTA has not stated a cognizable claim and, accordingly, we dismiss the petition. II. BACKGROUND 2. On August 6, 1996, the Wireless Telecommunications Bureau announced that GTA, a government- owned provider of local exchange and cellular telephone services, had filed a timely FCC Form 175, Application to Participate in an FCC Auction, to participate as a bidder for licenses in the D and E frequency blocks in the broadband PCS auction. On August 20, 1996, GTA qualified to bid on D and E block licenses in Markets B490 (Guam) and B493 (Northern Mariana Islands). GTA bid in the auction that commenced on August 26, 1996 and ended on January 14, 1997. GTA was the high bidder for the E block licenses in both markets. On January 29, 1997, GTA filed FCC Forms 600, Application for Mobile Radio Service Authorization, for both markets. On February 19, 1997, the applications were accepted for filing. On April 28, 1997, the Wireless Telecommunications Bureau, under delegated authority, conditionally granted the applications pending GTA's remittance of its required payments. GTA made all payments required by the Commission and was issued its licenses. 3. During the auction, on September 13, 1996, Senator Thomas C. Ada, Chairman of the Committee on Water, Utilities, and Electronic Communications of the Guam Legislature, sent GTA a letter questioning GTA's decision to participate in the auction for licenses in the CNMI in as much as GTA is a government entity. On September 18, 1996, Senator Ada notified GTA that he was convening an oversight hearing on September 25, 1996 to review GTA's participation in the auction. 4. On October 2, 1996, Senator Ada filed a complaint against GTA, its Board Members and General Manager in the Superior Court of Guam alleging that the specific power and authority granted to GTA by the Guam Legislature does not authorize it to enter into business in the CNMI. 5. On October 4, 1996, GTA filed its Petition for Preemption with the Commission. On October 15, 1996, IT&E Overseas, Inc. ("IT&E"), GTA's competitor for licenses in the two markets it won, filed an Opposition and Motion to Dismiss. GTA filed its response to IT&E's Opposition on October 23, 1996. On December 23, 1996, the CNMI government filed an Opposition. III. DISCUSSION 6. GTA invokes our authority under both Section 253(d) of the Communications Act and Section 1.2 of our rules. Section 253(d) directs that "[i]f, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b) [of Section 253], the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency." Section 1.2 of the Commission's rules permits us to "issue a declaratory ruling terminating a controversy or removing uncertainty." 7. We conclude that GTA has not stated a cognizable claim under either of these provisions. In its Petition, GTA states that "There is nothing in the Guam code or the GTA enabling legislation that prohibits [it] from providing service in the CNMI. However, if there were, the Commission should preempt those provisions . . . . " GTA's Petition asks the Commission to preempt "any . . . provisions . . . that may prevent GTA from providing Personal Communications Services ("PCS") in the Commonwealth of the Northern Mariana Islands," but it does not cite to any specific provision of any statute that would have this result. 8. In the absence of some form of statute, regulation, official conduct, or other legal requirement to preempt, we cannot act under Section 253(d). Section 253(d) directs us to preempt enforcement of a statute, regulation, or other legal requirement, "to the extent necessary," if we determine that a State or local government "has permitted or imposed" a statute, regulation, or legal requirement that violates Section 253(a) or (b). Here, GTA does not allege that the Government of Guam has imposed any such requirement nor can GTA even identify any such requirement. At most, GTA alleges that the Government may have imposed such an unspecified requirement, or that it may do so in the future. Although we are troubled generally by the complaint filed Senator Ada given section 253's prohibition against state action that prohibits entry or may have the effect of prohibiting entry, absent an adverse decision in that complaint case or the identification of some specific statute, regulation or legal requirement, there is nothing for us to preempt under Section 253(d). 9. We also conclude that GTA has failed to show that a "controversy" or "uncertainty" exists in a form sufficiently crystallized to warrant our rendering a declaratory ruling. Although the Commission's jurisdiction is not subject to the "case or controversy" requirement that binds Federal courts, it remains within our discretion to determine in particular cases whether to exercise our authority to issue a declaratory ruling "to terminate a controversy or remove uncertainty." Here, we choose not to exercise our discretion as there does not appear to be a current controversy for the following reasons. 10. GTA merely speculates that Guam may enforce an unknown statute or legal requirement in a manner that prevents it from offering service in the CNMI. GTA does not identify any such statute or legal requirement, and its only allegation of competitive harm is that an injunction preventing it from participating in the auction for D and E Block licenses would cause it irremediable harm. However, the auction is now completed, GTA has been awarded the E Block license for the CNMI, and its application for that license has not been challenged. Thus, to the extent GTA's petition is based on the threat of an injunction against its participation in the auction, its petition is now moot. 11. Essentially, GTA asks us to rule that an unspecified future application of an unknown law would prevent it from offering service in the CNMI and therefore would violate Sections 332(c)(3) and 253(a). Without knowing what that law is or how it would be applied, however, we do not believe under the circumstances of this case that we can render any useful ruling regarding its validity. To the extent any provision of Guam law may later be interpreted or enforced in a manner that restricts GTA's operations, the validity of that action may be better considered under petition by a party demonstrating that it is actually prohibited, or is effectively prohibited, from providing any interstate or intrastate telecommunications service by operation of the law. IV. CONCLUSION 12. Having reviewed the pleadings and considered all relevant documents in this matter, we conclude that GTA's Petition for Preemption concerning enforcement of any provisions of the Organic Act of Guam, the Guam Telephone Authority Act of 1973, and any other Guam statutes, regulations, or legal requirements that may prevent GTA from providing Personal Communications Services in the Commonwealth of the Northern Mariana Islands, pursuant to Section 253(d) and Section 332(c)(3)(A) of the Communications Act of 1934, as amended, 47 U.S.C.  253(d), 332(c)(3)(A), and Section 1.2 of the Commission's Rules, 47 C.F.R.  1.2, must be dismissed. V. ORDERING CLAUSE 13. Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 253(d), and 332(c)(3)(A) of the Communications Act, as amended, 47 U.S.C.  154(i), 253(d), 332(c)(3)(A), and Section 1.2 of the Commission's rules, 47 C.F.R.  1.2, that the Petition for Preemption filed by Guam Telephone Authority on October 4, 1996, IS DISMISSED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary