*Pages 1--5 from Microsoft Word - 55342.doc* PUBLIC NOTICE Federal Communications Commission 445 12 th Street, S. W. Washington, D. C. 20554 News Media Information 202 / 418- 0500 Fax- On- Demand 202 / 418- 2830 TTY 202 / 418- 2555 Internet: http:// www. fcc. gov ftp. fcc. gov DA 06- 491 Released: February 28, 2006 DOMESTIC SECTION 214 APPLICATION FILED FOR TRANSFER OF CONTROL FROM EPICUS, INC. TO EPICUS COMMUNICATIONS GROUP, INC. STREAMLINED PLEADING CYCLE ESTABLISHED WC Docket No. 05- 359 Comments Due: March 14, 2006 Reply Comments Due: March 21, 2006 On December 12, 2005 Epicus, Inc. (“ Epicus”) and Epicus Communications Group, Inc. (“ ECG”) (collectively, “Applicants”) filed an application pursuant to sections 63.03 and 63.04 of the Commission’s rules 1 seeking authority to consummate transactions in connection with a Chapter 11 bankruptcy reorganization plan. 2 As discussed in detail below, the transfer of control at issue in this application closed on December 7, 2005, in accordance with the terms of an order entered by the U. S. Bankruptcy Court for the Southern District of Florida. 3 1 47 C. F. R §§ 63.03, 63.04; see 47 U. S. C. § 214. 2 Applicants are also filing applications for transfer of control associated with authorization for international services. Any action on this domestic 214 application is without prejudice to Commission action on other related, pending applications. 3 Applicants initially requested that the Commission grant approval of this Application nunc pro tunc to December 7, 2005. See Application of EPICUS, Inc. and Epicus Communications Group, Inc. for Grant of Authority Pursuant to Section 214 of the Communications Act of 1934 and Sections 63.04 and 63.18 of the Commission’s Rules to Complete a Transfer of Control of Authorized International and Domestic Interstate Carriers, WC Docket No. 05- 359, at 1- 2 (filed Dec. 12, 2005). After discussions with Commission staff, Applicants subsequently amended their application to remove the nunc pro tunc designation, and also applied for and received Special Temporary Authority to continue providing services to ECG’s customers while the application is pending. See Application of Epicus Communications Group Inc. for Special Temporary Authority to Provide Resold Interstate and International Telecommunications Services, WC Docket No. 05- 359 (filed Feb. 3, 2006) (“ Epicus STA Request”); Amendment to Application for Grant of Authority Pursuant to Section 214 of the Communications Act of 1934 and Sections 63.04 and 63.18 of the Commission’s Rules to Complete a Transfer of Control of Authorized International and Domestic Interstate Carriers, WC Docket No. 05- 359 (filed February 10, 2006); Amendment to Application for Special Temporary Authority to Provide Resold Interstate and International Telecommunications Services, WC Docket No. 05- 359 (filed Feb. 10, 2006). 1 2 Applicants assert that this transaction is entitled to presumptive streamlined treatment under sections 63.03( b)( 1) and 63.03( b)( 2)( iii) of the Commission’s rules because: (1) neither applicant is a facilities- based carrier; (2) the reorganization resulted in the Applicants and their affiliates holding less than a 10% share of the interstate interexchange market; (3) ECG only provides competitive local exchange service in geographic areas served by a dominant local exchange carrier that is not a party to this transaction; and (4) neither the Applicants nor any of their affiliates are dominant with respect to any U. S. domestic telecommunications service. 4 On October 25, 2004, ECG and Epicus filed for relief under Chapter 11 of the U. S. Bankruptcy Code in the U. S. Bankruptcy Court for the Southern District of Florida. The court’s Findings of Fact, Conclusions of Law, and Order Confirming Debtors First Amended Joint Plan of Reorganization (the “Confirmation Order”) required the transfer of substantially all of the assets and business operations of Epicus through a reorganization of ECG. The Confirmation Order also provided for a transfer of control of ECG through a reorganized capital structure. On December 7, 2005, ECG and Epicus consummated the transfer of assets and reorganized capital structure pursuant to the Confirmation Order (the “Closing”). Although the Applicants obtained the approvals of the applicable state regulatory agencies prior to the Closing, the Applicants did not obtain the approval of the Commission pursuant to Section 214. Applicants assert that, as part of the Closing, new funding was provided to ECG to provide working capital for ongoing operations. According to Applicants, delaying consummation of the Closing (and its concomitant infusion of capital) likely would have exhausted their then- existing operating funds, and Applicants would likely have had to cease operations. 5 Epicus was a privately- held Florida corporation and wholly- owned subsidiary of ECG. At the time the transaction at issue was consummated, Epicus was a non- facilities based reseller of local and long distance service in Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, and South Carolina. Epicus offered small businesses and residential consumers an integrated set of telecommunications products and services, including local exchange, local access, domestic and international long distance telephone, data and dial up access to the Internet. ECG is a publicly- held Florida corporation which currently provides the non- facilities based competitive telecommunications services formerly provided by Epicus in Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, and South Carolina, pursuant to the Confirmation Order. The transactions contemplated by the Confirmation Order were accomplished through, among other things, a debenture sale to the NIR Group, LLC. Additionally, the Confirmation Order provided for the change of ECG’s capital structure so that Ocean Avenue Advisors, LLC, a U. S. entity, owns 52.5% of the reorganized ECG, and Gerard Haryman, a U. S. citizen, owns 26.4% of the reorganized ECG. 4 47 C. F. R. §§ 63. 03( b)( 1) and 63. 03( b)( 2)( iii). 5 See Epicus STA Request at 2- 3. 2 5 (2) Tracey Wilson- Parker, Competition Policy Division, Wireline Competition Bureau, 445 12th Street, S. W., Room 5- C212, Washington, D. C. 20554; email: tracey. wilson- parker@ fcc. gov; (3) Alex Johns, Competition Policy Division, Wireline Competition Bureau, 445 12th Street, S. W., Room 5- C317, Washington, D. C. 20554; e- mail: alexis. johns@ fcc. gov; (4) Susan O’Connell, Policy Division, International Bureau, 445 12th Street, S. W., Room 7- B544, Washington, D. C. 20554; email: susan. o’connell@ fcc. gov; and (5) James Bird, Office of General Counsel, 445 12th Street, S. W., Room 8- C824, Washington, D. C. 20554; e- mail: james. bird@ fcc. gov. Filings and comments are also available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, S. W., Room CY- A257, Washington, D. C. 20554. They may also be purchased from the Commission’s duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, S. W., Room CY-B402, Washington, D. C. 20554, telephone: (202) 488- 5300, fax: (202) 488- 5563, or via e- mail www. bcpiweb. com. For further information, please contact Tracey Wilson- Parker at (202) 418- 1394, or Alex Johns at (202) 418- 1167. - FCC - 5