Federal Communications Commission DA 09-1293 Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of ) ) NextG Networks of Illinois, Inc., ) ) Complainant, ) File No. EB-09-MD-006 ) v. ) ) RCN Telecom Services of Illinois, LLC, ) ) Respondent. ) ) ORDER OF DISMISSAL Adopted: June 8, 2009 Released: June 8, 2009 By the Chief, Market Disputes Resolution Division, Enforcement Bureau: I. INTRODUCTION 1. On May 4, 2009, NextG Networks of Illinois, Inc. (“NextG”) filed a Complaint1 against RCN Telecom Services of Illinois, LLC (“RCN”) pursuant to sections 224 and 251 of the Communications Act of 1934, as amended (the “Act”),2 and section 1.1404 of the Commission’s rules.3 2. On May 20, 2009, following a telephone conference with counsel for the parties, Commission staff issued a Notice of Complaint instructing NextG to file an amended complaint in order cure certain deficiencies in the Complaint, and setting a schedule for subsequent pleadings in this matter.4 3. On May 22, 2009, NextG’s counsel informed Commission staff and counsel for RCN that NextG wished to withdraw its Complaint without prejudice in order to allow further development of facts that may lead to either resolution of the dispute or at least a narrowing of the disputed issues. On May 26, 2009, RCN’s counsel informed NextG and Commission staff that RCN did not object to NextG's proposal to withdraw its pending Complaint, but noted that RCN did not waive or prejudice its right to challenge the 1 Complaint for Denial of Access to Conduits, File No. EB-09-MD-006 (filed May 4, 2009) (“Complaint”). 2 47 U.S.C. §§ 224, 251. 3 47 C.F.R. § 1.1404 4 Notice of Complaint, File No. EB-09-MD-006 (rel. May 20, 2009). Federal Communications Commission DA 09-1293 2 Commission’s jurisdiction over this matter.5 Later that day, NextG filed a consent motion to dismiss the complaint without prejudice.6 4. We are satisfied that granting the Consent Motion will serve the public interest by encouraging parties to work privately to narrow and resolve disputed issues, which may limit or eliminate the need for litigation and the further expenditure of resources by the parties and this Commission. 5. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), 224, and 251 of the Act, 47 U.S.C. §§ 154(i), 154(j), 224, 251, and sections 1.1401-1.1418 of the Commission’s rules, 47 C.F.R. §§ 1.1401-1.1418, and the authority delegated in sections 0.111 and 0.311 of the Commission’s rules, 47 C.F.R. §§ 0.111, 0.311, that the Consent Motion to Dismiss Complaint Without Prejudice IS GRANTED. 6. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), 224, and 251 of the Act, 47 U.S.C. §§ 154(i), 154(j), 224, 251, and sections 1.1401-1.1418 of the Commission’s rules, 47 C.F.R. §§ 1.1401-1.1418, and the authority delegated in sections 0.111 and 0.311 of the Commission’s rules, 47 C.F.R. §§ 0.111, 0.311, that NextG’s Complaint against RCN IS DISMISSED WITHOUT PREJUDICE. FEDERAL COMMUNICATIONS COMMISSION Alexander P. Starr Chief, Market Disputes Resolution Division Enforcement Bureau 5 Attached as Exhibit A is a chain of e-mail communications, including the May 22, 2009 message from NextG’s counsel, Scott Thompson, proposing to withdraw the Complaint without prejudice, and the May 26, 2009 message from RCN’s counsel, Elise Dietrich, stating that RCN does not object to NextG’s proposal. 6 Consent Motion to Dismiss Complaint Without Prejudice, File No. EB-09-MD-006 (filed May 26, 2009) (“Consent Motion”). Federal Communications Commission DA 09-1293 3 Exhibit A Lisa Saks From: Dieterich, Elise [mailto:edieterich@sandw.com] Sent: Tuesday, May 26, 2009 12:11 PM To: Alex Starr; Thompson, Scott; Lisa Saks Cc: Moylan, Leslie; Paul.Eskildsen@rcn.net; Tom Steel Subject: RE: NextG Networks of Illinois Complaint Against RCN Telecom Services of Illinois All - RCN has conferred, and does not object to NextG's withdrawal of the pending Complaint as proposed below. To be clear, as Scott notes, RCN does not intend hereby to waive or otherwise prejudice its position regarding jurisdiction over this matter. If there are questions or if a more formal expression of RCN's consent is required, please feel free to contact me. Best regards, - Elise Elise Dieterich Attorney at Law Sullivan & Worcester LLP 1666 K Street, NW Washington, DC 20006 T 202 370 3925 F 202 293 2275 edieterich@sandw.com www.sandw.com BOSTON NEW YORK WASHINGTON, DC Federal Communications Commission DA 09-1293 4 From: Alex Starr [mailto:Alex.Starr@fcc.gov] Sent: Friday, May 22, 2009 4:58 PM To: Thompson, Scott; Lisa Saks; Dieterich, Elise; Paul.Eskildsen@rcn.net; Tom Steel Cc: Moylan, Leslie; Alex Starr Subject: RE: NextG Networks of Illinois Complaint Against RCN Telecom Services of Illinois Counsel: In light of NextG's desire to withdraw its complaint, we hereby waive the deadline to file an amended complaint by today. We look forward to hearing RCN's response to NextG's proposal promptly, preferably after having discussed the issue with NextG. Alex Starr, Chief EB-MDRD From: Thompson, Scott [mailto:ScottThompson@dwt.com] Sent: Friday, May 22, 2009 2:56 PM To: Lisa Saks; Dieterich, Elise; Paul.Eskildsen@rcn.net; Tom Steel Cc: Alex Starr; Moylan, Leslie Subject: RE: NextG Networks of Illinois Complaint Against RCN Telecom Services of Illinois All, NextG has decided to propose the following course of action in an attempt to potentially resolve this dispute, but at a minimum, narrow the potential issues. NextG proposes to withdraw its Complaint, without prejudice, and to submit to RCN a request for access to conduit at specific locations within Chicago where NextG believes that RCN may own conduit. If necessitated by RCN's response to those specific requests, NextG would refile a new complaint. Obviously, if access is granted on lawful terms and conditions, NextG would not need to re-file. While I believe that NextG could ultimately dismiss its complaint without prejudice unilaterally since RCN has not yet answer, please let me know if you have any objection to this proposal. I understand that RCN's position is probably that the FCC would not have jurisdiction over any subsequent complaint, and we are not suggesting that RCN would be waiving that position or that NextG would be waiving its position regarding jurisdiction by withdrawing its current complaint without prejudice now with this proposed course of action. We would propose to file the withdrawal without prejudice on Tuesday in lieu of filing an amended complaint today. We anticipate providing RCN with the specific locations sometime next week. Please contact me if you have any questions regarding this proposal. Thanks Scott Federal Communications Commission DA 09-1293 5 From: Lisa Saks [mailto:Lisa.Saks@fcc.gov] Sent: Wednesday, May 20, 2009 1:36 PM To: Dieterich, Elise; Thompson, Scott; Moylan, Leslie; Paul.Eskildsen@rcn.net; Tom Steel Cc: Alex Starr Subject: RE: NextG Networks of Illinois Complaint Against RCN Telecom Services of Illinois Dear Counsel: Enclosed is a letter memorializing the rulings made during yesterday's telephone conference. A hard copy will follow by U.S. mail. Lisa J. Saks Assistant Chief, Market Disputes Resolution Division Enforcement Bureau Federal Communications Commission 445 12th Street, S.W. Room 4-C261 Washington, D.C. 20554 202/418-7335 (phone) Lisa.Saks@fcc.gov This message is intended to be confidential and may be legally privileged. It is intended solely for the addressee. If you are not the intended recipient, please delete this message from your system and notify us immediately. Any disclosure, copying, distribution or action taken or omitted to be taken by an unintended recipient in reliance on this message is prohibited and may be unlawful. Communications from our firm may contain or incorporate federal tax advice. Under recently promulgated US Internal Revenue Service (IRS) standards, we are required to inform you that only formal, written tax opinions meeting IRS requirements may be relied upon by taxpayers for the purpose of avoiding tax-related penalties. Accordingly, this communication is not intended or written to be used, and it cannot be used, for the purpose of avoiding tax-related penalties under the Internal Revenue Code. Please contact a member of our law firm's Tax Department if you require a formal, written tax opinion that satisfies applicable IRS requirements, or if you have any other questions regarding federal tax advice.