*Pages 1--4 from Microsoft Word - 13015.doc* Federal Communications Commission DA 01- 2731 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Petition to Reconsider Complaint Against Internet Commerce & Communications, Inc. f/ k/ a RMI. NET, INC. and ICC Speed Cell, LLC for Failure to Comply with Statutory (47 U. S. C. § 214) and Regulatory (47 C. F. R. § 63.71) Discontinuance Requirements ) ) ) ) ) ) ) ) ) ) ORDER Adopted: November 20, 2001 Released: November 20, 2001 By the Common Carrier Bureau: 1. In this Order, we address the November 15, 2001 petition for reconsideration filed by ICC Speed Cell, LLC (Speed Cell). Speed Cell requests that the Federal Communications Commission (FCC or Commission) reconsider or modify its November 2, 2001 order in this proceeding, 1 insofar as that order found Speed Cell responsible for complying with certain statutory and regulatory obligations applicable to common carriers. 2 For the reasons discussed herein, the Common Carrier Bureau (Bureau) grants Speed Cell’s request as indicated below. BACKGROUND 2. On October 31, 2001, ONRAMP, Inc. (ONRAMP) filed a complaint with the Commission, alleging that its provider of telecommunications services, Internet Commerce & Communications, Inc. (ICC), had ordered an unauthorized discontinuance of service for it and one hundred fifty- seven (157) other customers. 3. On November 2, 2001, the Bureau released an order finding that both ICC and Speed Cell must either solely or jointly file a section 214 application for discontinuance authority if they sought to discontinue providing service to the customers described in the order’s third paragraph. 3 1 See In the Matter of Complaint Against Internet Commerce & Communications, Inc. f/ k/ a RMI. NET, Inc. and ICC Speed Cell, LLC for Failure to Comply with Statutory (47 U. S. C. § 214) and Regulatory (47 C. F. R. § 63.71) Discontinuance Requirements, Order, (November 2, 2001). 2 See 47 U. S. C. § 214; 47 CFR § 63.71. 3 See n. 1, infra. 1 Federal Communications Commission DA 01- 2731 2 4. On November 8, 2001, ICC provided the requisite notice under section 63.71 of the Commission’s rules, notifying customers of the imminent disconnection of their service. Furthermore, on November 9, 2001, ICC filed an application for authority to discontinue service, in which it acknowledged its responsibility to provide its customers with notice and to comply with Commission regulations. On that same day, the Bureau issued a public notice notifying ICC’s customers of ICC’s proposed discontinuance of services. 4 5. Subsequently, on November 15, 2001, Speed Cell filed a petition for reconsideration of the Bureau’s November 2, 2001 order. It argues that in light of ICC’s application and the Bureau’s public notice, there is no longer any basis for the Bureau to conclude that Speed Cell was a provider of common carrier services to the affected ICC customers. The petition also makes other factual allegations about which assets and what obligations were covered in the bankruptcy- court- approved asset purchase agreement between it and ICC. 6. In its petition for reconsideration, Speed Cell also commits that it is prepared to provide the operational support necessary to manage the circuits corresponding to ICC’s affected customers, provided that such provision can be accomplished without incurring substantial costs to Speed Cell. 5 As part of its commitment, Speed Cell indicates that it will send an invoice to ICC for its out- of- pocket expenses as soon as ICC’s customers begin to accept the benefits of Speed Cell’s service. Speed Cell states that ICC will have thirty (30) days to make payment for the operational support that it has provided to ICC’s customers during the notice period. 6 Speed Cell emailed copies of its reconsideration petition to ONRAMP and counsel for ICC. 7. On November 16, 2001, ONRAMP filed comments in opposition to Speed Cell’s reconsideration petition. ONRAMP argues that Speed Cell has a separate regulatory obligation to provide notice to the affected customers. It also disputes Speed Cell’s allegations concerning the legal effect of the purchase agreement and the bankruptcy court order approving that agreement. 4 See Comments invited on Internet Commerce and Communications, Inc. Application to Discontinue Domestic Telecommunications Services, Public Notice, DA 01- 2637 (rel. November 9, 2001). 5 To elaborate, Speed Cell is aware that ICC, in cooperation with the FCC and MCI, is currently exploring whether customers may be provided with service for the balance of the notice period, i. e., through December 10, 2001. Such an arrangement would involve those customers agreeing to pay MCI for their service at the rate agreed to in their existing contracts with ICC. Speed Cell clarifies that in the event that customers do not agree to pay for their continuing service, it is not prepared to make the required payments to MCI to keep these circuits operational. However, it is prepared to provide the operational support needed to facilitate the provision of services to those customers willing to pay the ICC contract rate, and to pursue its claim for reimbursement of those additional costs from ICC in the bankruptcy proceeding. 6 We do not comment on the propriety of this procedure as it concerns a debtor in Chapter 11 bankruptcy proceedings. The important point is that Speed Cell has committed to refrain from disconnecting these customers during the notice period, and to pursue its claim for costs after the notice period is concluded. 2 Federal Communications Commission DA 01- 2731 3 DISCUSSION 8. We believe that it is neither appropriate nor necessary for the Bureau to address the disputed factual allegations concerning the legal effect of the asset purchase agreement or of the bankruptcy court’s order. It was always fairly clear to the Bureau that ICC was the carrier that had contracted initially to provide service to these customers, and that ICC had ordered the disconnection of its customers well prior to the agreement’s being executed, in violation of Commission regulations. We have been presented with no compelling evidence that Speed Cell either agreed to take on these customers, or that it entered into separate agreements with these customers to provide service to them. Contrary to the assertions in ONRAMP’s filing, our order did not state that Speed Cell is separately obligated as a common carrier to provide continued service to ICC’s customers. In fact, we specifically left the issue open of who should file a discontinuance application with us because of the preliminary nature of the facts that were available to us at the time of the order’s release. Our main concern was to prevent the imminent disconnection of customers without the required notice, in violation of our rules. The primary reason for naming Speed Cell in the order was because at the time of the order’s release, Speed Cell had control over the network, and appeared to be in a position to confirm or override the order previously given by ICC to disconnect these customers. Consequently, we ordered it to refrain from disconnecting these customers. 9. We now find it unnecessary to address whether Speed Cell had any separate duty to provide notice to customers (although we think such a finding would be unlikely under the facts as we currently understand them). ICC has provided the required notice, as indeed it had to, and, thus, has acknowledged its regulatory responsibility for doing so under section 63. 71 of the Commission’s rules. ICC has also filed the requisite section 214 discontinuance application. As a result of ICC’s somewhat belated compliance with our regulations, the issue of whether Speed Cell had some similar, parallel obligation to provide notice to these same customers is moot. The customers have received the required notice. 7 We reject the assertion by ONRAMP that Speed Cell must now provide its own separate notice to these customers, and we clarify that customers must indeed follow the procedures laid out in the November 9 th public notice if they wish to contest the imminent disconnection of services to them. 8 None of the facts that we rely on in reaching these conclusions are in dispute. 9 7 According to its application for discontinuance authority, ICC stated that it provided both electronic and written notice of its proposed discontinuance to its affected customers. The Commission routinely relies upon such statements by filing carriers that all their affected customers are being notified thereby. 8 A copy of the public notice can be found on the web at the following Internet address: http:// hraunfoss. fcc. gov/ edocs_ public/ attachmatch/ DA- 01- 2637A1.doc. As required by the public notice, any customer that wishes to file a complaint about any issue pertaining to ICC’s application must follow the procedures for doing so, including filing any comments by November 23, 2001. 9 It appears that in accordance with 47 CFR § 1.106 (f), ONRAMP and ICC, the only other parties to the Bureau's November 2 nd order, have been served by email with Speed Cell's petition, and that the deadlines for additional pleadings permitted under 47 CFR §1.106( g) have not yet expired. We find that special circumstances warrant deviation from this rule, and that a waiver would be in the public interest. Prompt issuance of this order (continued….) 3 Federal Communications Commission DA 01- 2731 4 10. We also find it unnecessary to address the extent of Speed Cell’s obligation to cooperate in forestalling a disconnection of these ICC customers in contravention of Commission rules. In its petition for reconsideration, Speed Cell committed to provide the operational support needed in order to facilitate ICC’s compliance with those rules, and to see that customers may receive service during the notice period. Speed Cell’s commitment to provide this cooperation relieves us from deciding the extent of its obligation to do so. 10 ORDERING CLAUSE 11. Accordingly, in accordance with sections 1, 4( 1), and 214 of the Communications Act of 1934, as amended, 47 U. S. C. §§ 151, 154( 1), 214, and sections 0.91, 0.291, and 63.71 of the Commission’s rules, 47 C. F. R. §§ 0.91, 0.291, 63.71, the November 2, 2001 order is hereby modified as set forth above. FEDERAL COMMUNICATIONS COMMISSION Jeffrey J. Carlisle Senior Deputy Bureau Chief Common Carrier Bureau (Continued from previous page) is essential to make customers aware of their obligation to file any comments concerning continuation of service before the time prescribed by the November 9 th public notice (November 23, 2001) expires. 10 By making this commitment, Speed Cell will not, of course, be stepping into the shoes of ICC or succeeding to any of its regulatory obligations, but will simply be facilitating ICC's compliance with FCC regulations. 4