# Before the

# FEDERAL COMMUNICATIONS COMMISSION

**Washington, D.C. 20554**

In the matter of )

)

COMSAT CORPORATION, )

)

Complainant, )

)

v\. ) File No. E-99-08

)

IDB MOBILE COMMUNICATIONS, INC., )

)

Defendant. )

**MEMORANDUM OPINION AND ORDER**

Adopted: May 5, 2000 Released: May 8, 2000

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1.  In this Order, we dismiss with prejudice a complaint filed by COMSAT
    Corporation (COMSAT) against IDB Mobile Communications, Inc. (IDB)
    pursuant to section 208 of the Communications Act of 1934, as
    amended (Communications Act or Act).[^1] COMSAT's complaint alleges
    that IDB violated the International Maritime Satellite
    Telecommunications Act[^2] and sections 201(b), 202(a), and 214 of
    the Communications Act[^3] by obtaining certain communications
    satellite capacity used by IDB's U.S. land earth stations (LESs)
    from an entity other than COMSAT.[^4] In dismissing COMSAT's FCC
    Complaint, we hold that the doctrine of *res judicata* precludes
    COMSAT from maintaining the claims alleged in its FCC Complaint,
    because a federal district court has already issued a final judgment
    against COMSAT and in favor of IDB concerning claims that arose out
    of the same transaction from which the claims in this proceeding
    arise. We further hold that section 207 of the Communications Act
    precludes COMSAT from maintaining the claims in its FCC Complaint,
    because COMSAT previously elected to seek in a federal district
    court the same damages, arising from the same transaction, that are
    at issue in the FCC Complaint.[^5]

> **II. BACKGROUND**

2.  The parties agree that "there are no key facts in dispute...." [^6]
    COMSAT is a corporation created pursuant to the Communications
    Satellite Act of 1962.[^7] COMSAT provides a wide range of
    international satellite communications services.[^8] IDB also is a
    corporation that provides many international satellite
    communications services.[^9]

3.  In 1976, numerous national governments created the International
    Mobile Satellite Organization (Inmarsat) as a United
    Nations-chartered, international treaty organization to operate a
    global network of satellites to support communications
    services.[^10] As of the time that COMSAT filed its FCC Complaint,
    two key documents governed Inmarsat -- the Inmarsat Convention and
    the Inmarsat Operating Agreement. The Convention is a treaty among
    national governments that are Parties of Inmarsat, each of whom
    designated an entity to act as its Signatory to the Operating
    Agreement. The Operating Agreement is a contract between the
    Signatories, each of which owned a portion of Inmarsat.[^11]

4.  In 1978, Congress passed the Maritime Satellite Act, designating
    COMSAT as the sole U.S. Signatory to Inmarsat and authorizing COMSAT
    to sign the Inmarsat Operating Agreement on behalf of the United
    States. In 1979, the United States signed the Inmarsat
    Convention.[^12]

5.  IDB was not an Inmarsat Signatory. At the time that COMSAT filed its
    FCC Complaint, IDB provided satellite communications services by
    combining its own land earth stations with satellite capacity (or
    space segment) purchased from an Inmarsat Signatory, such as COMSAT.
    IDB operates land earth stations in the United States.[^13]

6.  COMSAT and IDB entered into an intercarrier agreement, dated June
    30, 1995, for the provision of space and combined space-and-ground
    segment services.[^14] Pursuant to this Agreement, from the summer
    of 1995 until September 1, 1997, IDB purchased space segment
    capacity for its U.S. LESs solely from COMSAT.[^15]

7.  Beginning September 1, 1997, IDB began to purchase space segment
    capacity for its U.S. LESs from an Inmarsat Signatory other than
    COMSAT. IDB notified COMSAT of this change in November 1997. At all
    relevant times since August 31, 1997, IDB has not purchased space
    segment capacity for its U.S. LESs from COMSAT.[^16]

8.  On January 28, 1998, in response to IDB's decision to purchase space
    segment capacity from an Inmarsat Signatory other than COMSAT,
    COMSAT filed a complaint against IDB in the United States District
    Court for the District of Maryland, Southern Division (District
    Court or Court).[^17] COMSAT included in the District Court
    Complaint three counts against IDB, all of them styled as "Breach of
    Contract." Each of the three "Breach of Contract" counts essentially
    alleged that (1) the Maritime Satellite Act and the Communications
    Act require IDB to purchase space segment capacity for IDB's U.S.
    LESs exclusively from COMSAT; (2) the COMSAT/IDB Agreement
    incorporates those requirements of federal law; and, therefore, (3)
    IDB's purchasing of space segment capacity for its U.S. LESs from an
    entity other than COMSAT violated the COMSAT/IDB Agreement.[^18]
    COMSAT sought damages in the amount of, *inter alia*, whatever
    charges IDB would have paid COMSAT had IDB complied with IDB's
    alleged contractual obligation to purchase space segment capacity
    for IDB's U.S. LESs exclusively from COMSAT.[^19] COMSAT's District
    Court Complaint did *not* include any claim/count based directly on
    any alleged breach of the Maritime Satellite Act or the
    Communications Act.

9.  In response to COMSAT\'s District Court Complaint, IDB filed a
    motion to dismiss in lieu of an answer pursuant to Rule 12(b)(6) of
    the Federal Rules of Civil Procedure. IDB asked the District Court
    either to dismiss the complaint for failure to state a claim or to
    stay the proceedings and refer certain issues to the Commission
    pursuant to the primary jurisdiction doctrine.[^20]

10. On April 30, 1998, the District Court granted IDB\'s motion to
    dismiss COMSAT\'s District Court Complaint for failure to state a
    claim.[^21] In doing so, the District Court observed that "this is
    not an action to vindicate COMSAT's statutory rights under the
    \[Maritime Satellite\] Act -- this is a breach of contract
    case."[^22] According to the District Court, even assuming,
    *arguendo*, that the Maritime Satellite Act required IDB to purchase
    space segment capacity for its U.S. LESs exclusively from COMSAT,
    IDB's failure to do so did *not* breach the COMSAT/IDB Agreement,
    because the Agreement permitted IDB to purchase such capacity from
    entities other than COMSAT.[^23] Thus, the District Court concluded
    that, "\[w\]hile COMSAT may certainly have the power to vindicate
    its statutory rights in another forum, the Court can find no breach
    of the agreement."[^24] In a footnote to the first clause of the
    foregoing statement, the Court stated: "The \[Maritime Satellite\]
    Act does not provide for a civil cause of action to enforce its
    provisions. The FCC is charged with carrying out the provisions of
    47 U.S.C. § 752. *See* 47 U.S.C. § 753(c)(1)."[^25]

11. On January 6, 1999, COMSAT filed its FCC Complaint. COMSAT alleges
    that IDB violated the Maritime Satellite Act and sections 201(b),
    202(a), and 214 of the Communications Act by purchasing space
    segment capacity for IDB's U.S. LESs from an entity other than
    COMSAT. COMSAT seeks damages in the amount of whatever charges IDB
    would have paid COMSAT had IDB purchased space segment capacity for
    IDB's U.S. LESs exclusively from COMSAT during the relevant period.
    Thus, COMSAT's FCC Complaint arises from the very same
    circumstances, and seeks essentially the very same damages, as
    COMSAT's District Court Complaint. The two Complaints differ only in
    that the District Court Complaint asserted a breach of contract
    theory, whereas the FCC Complaint asserts statutory theories.

**III. DISCUSSION**

A.  **The Doctrine Of *Res Judicata* Requires Dismissal Of All Of The
    Claims In COMSAT's Complaint.**

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12. IDB asserts that the doctrine of *res judicata* (or claim
    preclusion, in modern parlance) requires dismissal of COMSAT's FCC
    Complaint, because the claims alleged in the FCC Complaint arise
    from the same transaction as the claims previously alleged in the
    District Court Complaint.[^26] COMSAT responds that the doctrine of
    *res judicata* does not apply, because the District Court allegedly
    held that it lacked authority to adjudicate COMSAT's statutory
    claims, and that COMSAT should, therefore, bring such statutory
    claims to the FCC.[^27] For the following reasons, we agree with IDB
    that the doctrine of res *judicata* precludes all of COMSAT's claims
    here, and on that basis we dismiss COMSAT's FCC Complaint with
    prejudice.

13. According to the general rule of claim preclusion, a valid and final
    judgment rendered against a plaintiff and in favor of a defendant in
    one action bars another action by the same plaintiff against the
    same defendant that seeks to assert *any* legal theory regarding
    *any* right to *any* remedy relating to the same transaction from
    which the first action arose.[^28] In other words, a plaintiff
    usually must assert in one action *all* claims against a defendant
    that arise from the same operative facts. This rule rests "largely
    on the ground that fairness to the defendant, and sound judicial
    administration, require that at some point litigation over the
    particular controversy come to an end."[^29]

14. It is beyond dispute that the District Court Order is a valid and
    final judgment against COMSAT and in favor of IDB concerning the
    same transaction at issue here. Thus, in the absence of some
    exception to the general rule of claim preclusion, we must dismiss
    COMSAT's FCC Complaint, even though it asserts different legal
    theories than the District Court Complaint.[^30]

15. COMSAT argues that two exceptions to the general rule of claim
    preclusion apply here, because (1) the District Court expressly
    reserved COMSAT's right to bring its statutory claims to the
    FCC,[^31] and (2) the District Court held that it lacked
    jurisdiction to adjudicate COMSAT's statutory claims.[^32] We
    conclude that, although COMSAT accurately characterizes these
    exceptions to claim preclusion in the abstract, COMSAT inaccurately
    applies these exceptions to the circumstances of this case.

16. According to some authorities, claim preclusion should not occur
    where "the court in the first action has *expressly reserved* the
    plaintiff's right to maintain the second action."[^33] To support
    its assertion that this exception to the general rule of claim
    preclusion applies here, COMSAT relies only on one clause in the
    text of the District Court's Order and one sentence in a footnote in
    the District Court's Order. In particular, COMSAT points to the
    Court's observation that "COMSAT may certainly have the power to
    vindicate its statutory rights in another forum,"[^34] followed by
    the Court's notation that "\[t\]he FCC is charged with carrying out
    the provisions of 47 U.S.C. § 752."[^35] In COMSAT's view, these
    remarks by the District Court "directed COMSAT to bring the present
    Complaint to the Commission" and thereby reflect the Court's
    intention to preserve COMSAT's right to litigate at the FCC all of
    the claims raised in its FCC Complaint.[^36]

17. We disagree. First, a review of the District Court Order as a whole
    clearly reveals that the Court's reference to COMSAT's "statutory
    rights" pertains only to COMSAT's rights (if any) under the Maritime
    Satellite Act, and not to COMSAT's rights (if any) under the
    Communications Act.[^37] In fact, the District Court's Order does
    not refer to the Communications Act at all. Thus, the "express
    reservation" exception to claim preclusion cannot save COMSAT's
    Communications Act claims in its FCC Complaint.

18. Second, with respect to COMSAT's statutory rights under the Maritime
    Satellite Act, the District Court's references are essentially
    passing ones. Read in context, they appear to be merely speculations
    about what COMSAT might have done or might still do to attempt to
    pursue its statutory claims, and seem to be made solely to highlight
    that COMSAT did not pursue such claims in the District Court. They
    surely do not "direct" COMSAT to file a complaint with the FCC, and
    they clearly do not compare in either specificity or clarity to the
    "express reservations" stated by the courts in the cases cited by
    COMSAT.[^38] Most importantly, they do not plainly reveal an intent
    to ensure that the judgment in the District Court would not bar
    COMSAT's assertion of a claim under the Maritime Satellite Act with
    the FCC. Such oblique remarks do not suffice to overcome the
    compelling interests of fairness, repose, and judicial economy that
    underlie the rule of claim preclusion.

19. Indeed, the treatise cited by COMSAT suggests that the "express
    reservation" exception to claim preclusion should apply only where a
    plaintiff "come\[s\] to trial prepared to prove a claim on one
    theory and \[is\] *justifiably unaware of another theory or
    unprepared to prove it*";[^39] even in such an instance of
    "legitimate surprise and reasonable excuse," the court may expressly
    reserve a claim for later litigation only by engaging in procedures
    of record tantamount to those required by Federal Rule of Civil
    Procedure 41.[^40] Nothing of that sort occurred here. The District
    Court Order indicates that COMSAT had full knowledge of the theory
    of recovery under the Maritime Satellite Act that it belatedly seeks
    to assert now; the Court's brief mention of the possibility of
    COMSAT asserting that theory in another forum falls far short of the
    explicit "terms and conditions" of dismissal contemplated by Federal
    Rule of Civil Procedure 41. Thus, the District Court's cursory
    comments do not qualify as an "express reservation" of COMSAT's
    right to litigate its Maritime Satellite Act claim at the
    Commission.

20. Another exception to the general rule of claim preclusion may apply
    where "the plaintiff was unable to rely on a certain theory of the
    case or to seek a certain remedy or form of relief in the first
    action because of the limitations on the subject matter jurisdiction
    of the courts ..., and the plaintiff desires in the second action to
    rely on that theory or to seek that remedy or form of relief."[^41]
    COMSAT asserts that this jurisdictional exception to the general
    rule of claim preclusion saves all of its claims from dismissal
    here, because the District Court stated in one sentence in a
    footnote that "\[t\]he Act does not provide for a civil cause of
    action to enforce its provisions."[^42] According to COMSAT:

> \[t\]he District Court itself held that COMSAT could not raise a
> statutory claim in the court proceeding, because \"\[t\]he Inmarsat
> Act does not provide for a civil cause of action to enforce its
> provisions,\" but instead requires COMSAT to bring an action before
> the Commission. The District Court thus ruled that COMSAT was not
> obliged to \-- indeed, could not \-- raise its claims for IDB\'s
> violation of the Inmarsat Act, FCC authorizations, the Inmarsat
> Operating Agreement, as well as other applicable provisions of the
> Communications Act, as incorporated into the contract, in that
> forum.[^43]

21. We again disagree with COMSAT. First, the District Court Order says
    nothing about COMSAT's potential claims under the Communications
    Act; as we stated above, the District Court Order mentions only the
    Maritime Satellite Act. Moreover, the District Court clearly could
    have adjudicated claims under the Communications Act, had COMSAT
    chosen to allege them in that forum.[^44] Therefore, the
    jurisdictional exception to claim preclusion does not apply to the
    Communications Act claims in COMSAT's FCC Complaint.

22. Second, the District Court's note that the Maritime Satellite Act
    does not provide for a civil cause of action is classic *obiter
    dicta*.[^45] COMSAT did not attempt to allege a civil cause of
    action under the Maritime Satellite Act, so the District Court's
    note was not necessary, or even relevant, to the District Court's
    sole holding that COMSAT's District Court Complaint failed to state
    a claim for breach of contract. In fact, the parties never raised
    before the District Court the question whether the Maritime
    Satellite Act provides for a civil cause of action,[^46] and that
    question is apparently a challenging one of first impression.[^47]
    Thus, the District Court did not *hold* that the Maritime Satellite
    Act lacks provision for a civil cause of action, and we are not
    convinced that, had the issue been squarely and thoroughly raised,
    the District Court necessarily would have so held. Accordingly, we
    cannot conclude that COMSAT was legally barred in the District Court
    from asserting a claim under the Maritime Satellite Act such that
    the jurisdictional exception to claim preclusion saves COMSAT's
    claim under the Maritime Satellite Act here.[^48]

23. In sum, in the absence of an exception to the general rule of claim
    preclusion, we must dismiss all of COMSAT's claims against IDB in
    the FCC Complaint, because those claims arise from the same
    transaction from which COMSAT's claims against IDB arose in the
    fully adjudicated District Court Complaint. Neither of the
    exceptions to the general rule of claim preclusion asserted by
    COMSAT -- the express reservation exception and the jurisdictional
    exception -- applies to any of COMSAT's claims in its FCC Complaint.
    COMSAT should have asserted its federal statutory claims in its
    District Court Complaint if it wanted those claims adjudicated by
    any tribunal. Consequently, pursuant to the rule of claim
    preclusion, *i.e.*, the doctrine of *res judicata*, we dismiss
    COMSAT's FCC Complaint with prejudice.

**B. Section 207 Of The Communications Act Requires Dismissal Of
COMSAT\'s FCC Complaint.**

24. IDB argues that, even if the *res judicata* doctrine does not
    require us to dismiss COMSAT's FCC Complaint, we should dismiss
    COMSAT's FCC Complaint on another ground. In IDB's view, section 207
    of the Communications Act requires dismissal of COMSAT's FCC
    Complaint, because COMSAT's FCC Complaint arises from the same
    facts, and seeks the same damages, as COMSAT's District Court
    Complaint.[^49] COMSAT counters that section 207 does not require
    dismissal of COMSAT's FCC Complaint, because COMSAT's FCC Complaint
    asserts different legal theories than the District Court Complaint
    (federal statutory theories in the former, state contract theories
    in the latter), and the District Court allegedly ruled that it
    lacked jurisdiction over COMSAT's statutory claims and "directed"
    COMSAT to assert such claims at the FCC.[^50] For the following
    reasons, we agree with IDB and therefore dismiss COMSAT's FCC
    Complaint with prejudice on this alternative ground, as well.

25. Section 207 of the Communications Act, is entitled "Recovery of
    Damages" and provides:

> Any person claiming to be damaged by any common carrier subject to the
> provisions of this Act may either make complaint to the Commission as
> hereinafter provided for, or may bring suit for the recovery of the
> damages for which such common carrier may be liable under the
> provisions of this Act, in any district court of the United States of
> competent jurisdiction; but such person shall not have the right to
> pursue both such remedies.[^51]

Very little precedent concerning the preclusive effect of section 207
exists.[^52] In fact, neither we nor the parties have found a decision
involving circumstances where, as here, the claims in the two tribunals
arise from the same transaction, but the plaintiff asserts different
legal theories in the two tribunals.

26\. Nevertheless, we have little trouble concluding that section 207
bars the instant complaint. Under section 207, a complainant may not
pursue a lawsuit against a common carrier seeking damages for which the
carrier "may be" liable under the Act and also file a complaint with the
Commission under section 208. In the instant case, COMSAT filed a
complaint in U.S. District Court seeking damages under a breach of
contract theory, and the complaint was dismissed on the merits. COMSAT
later filed a complaint with the Commission seeking damages under
various Communications Act theories. The question is whether the damages
that COMSAT sought in U.S. District Court were damages for which IDB
"may have been" liable under the Act. If so, COMSAT's claims are barred
under section 207.

27\. As noted above, the damages that COMSAT sought in U.S. District
Court are the *very same* damages it is seeking in the instant complaint
-- lost revenues resulting from IDB's failure since August 1997 to
purchase space segment capacity for its U.S. LESs exclusively from
COMSAT. There can be no doubt that, according to COMSAT, the damages it
sought in U.S. District Court were damages for which IDB "may have been"
liable under the Act, given that COMSAT's FCC Complaint seeks those very
damages (*i.e.*, the lost revenues) under various provisions of the Act.
The fact that COMSAT's District Court Complaint asserted different
theories of liability than its FCC Complaint has no apparent bearing on
the section 207 inquiry before us. The text of section 207, as well as
its title ("Recovery of Damages"), indicate that the focus of the
provision is the nature of the relief sought by the plaintiff, rather
than the legal theories in which the plaintiff's claims are dressed. We
also note that the self-evident purposes of section 207, avoiding
duplicative litigation and maximizing judicial economy, would be
ill-served by allowing a plaintiff to litigate a damages claim to
completion in one forum, then file a separate claim seeking the same
relief (even if under different legal theories) in a separate forum. We
thus conclude that section 207 precludes COMSAT from pursuing the
instant claims.[^53]

28\. The three cases on which COMSAT primarily relies provide COMSAT no
support. In *Long Distance/USA, Inc. v. Bell Telephone Co. of
Pennsylvania*,[^54] the plaintiff's FCC Complaint did not seek any
damages at all, much less the same damages as were at issue in its
previously filed court complaint. In *Mocatta Metals Corp. v. ITT World
Communications, Inc.*, the Commission held that section 207 required the
plaintiff to dismiss forthwith either its FCC complaint or its
previously filed court complaint, stating that "\[s\]ection 207 of the
Act will not permit \[the complainant\] to go forward with a complaint
before the Commission while it litigates the same claim before a
District Court."[^55] *Mocatta Metals* does not discuss whether the
"claim" before the District Court presented the same liability theory as
the section 208 complaint, and thus does not address the question before
us. In the third case, *COMSAT v. News Corp. Ltd.*,[^56] the court
entertained a court complaint, notwithstanding a previously filed FCC
complaint regarding the same issues, but only because the FCC complaint
had been dismissed *without prejudice* by stipulation of the parties,
which meant that "neither party ha\[d\] had any advantage or any
decision in that \[FCC\] forum."[^57] Here, by stark contrast, the
District Court Complaint did result in a final decision, and IDB did
thereby obtain an advantage in the court forum. Accordingly, we believe
the cases cited by COMSAT do not support its position.[^58]

**IV. CONCLUSION**

29\. In view of the foregoing, we conclude that the doctrine of *res
judicata* precludes COMSAT from maintaining the claims alleged in its
FCC Complaint, because a federal district court has already issued a
final judgment against COMSAT and in favor of IDB concerning claims that
arose out of the same transaction from which the claims in this
proceeding arise. We further conclude that section 207 of the
Communications Act precludes COMSAT from maintaining the claims in its
FCC Complaint, because COMSAT previously elected to seek in a federal
district court the same damages, arising from the same transaction, that
are at issue in the FCC Complaint. Accordingly, we dismiss COMSAT's FCC
Complaint with prejudice.

## V. ORDERING CLAUSE

30\. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), 207,
and 208 of the Communications Act of 1934, as amended, 47 U.S.C. §§
154(i), 154(j), 207, 208, 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
formal complaint in this proceeding IS DISMISSED WITH PREJUDICE and this
proceeding IS TERMINATED.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 U.S.C. § 208.

[^2]: 47 U.S.C. §§ 751-757 (Maritime Satellite Act or Inmarsat Act).
    COMSAT also refers to the Inmarsat Convention, the Inmarsat
    Operating Agreement, and related Commission orders, but all of those
    references are derivative of COMSAT's claim under the Maritime
    Satellite Act.

[^3]: 47 U.S.C. §§ 201(b), 202(a), 214. COMSAT also refers to IDB's
    Commission authorizations to provide communications service, but
    those references are derivative of COMSAT's claims under the
    Communications Act.

[^4]: Formal Complaint of COMSAT Corporation, File No. E-99-08 (filed
    Jan. 6, 1999) (FCC Complaint).

[^5]: 47 U.S.C. § 207. Given these holdings, we need not and do not
    reach IDB's argument that the Commission lacks authority under
    section 208 of the Act to adjudicate COMSAT's claim that IDB
    violated the Maritime Satellite Act.

[^6]: Joint Statement, File No. E-99-08 (filed Feb. 12, 1999) (Joint
    Statement) at 5.

[^7]: 47 U.S.C. §§ 701, *et seq*. (Satellite Act).

[^8]: FCC Complaint at ¶¶ 5-7; Answer of IDB Mobile Communications,
    Inc., File No. E-99-08 (filed Jan. 27, 1999) (Answer) at ¶ 59; Joint
    Statement at 2, ¶ 2.

[^9]: FCC Complaint at ¶ 9; Answer at ¶ 59; Joint Statement at 2, ¶ 3.

[^10]: FCC Complaint at ¶ 25; Answer at ¶ 73.

[^11]: FCC Complaint at ¶ 25; Answer at ¶ 73**;** *COMSAT Corp. v. IDB
    Mobile Communications Inc., et al*., Memorandum Opinion and Order,
    No. AW 98-281 (D. Md. April 30, 1998), *dismissed without opinion,
    COMSAT Corp. v. IDB Mobile Communications, Inc., et al.*, No.
    98-2525 (4th Cir. May 21, 1999) (District Court Order) at 2-3.
    Inmarsat became a private corporation on April 15, 1999, at which
    time the Maritime Satellite Act no longer governed satellite
    distribution services*. See In the Matter of Requests for Special
    Temporary Authority to Change Points of Communications from Inmarsat
    to Inmarsat Limited*, Order, DA 00-744 (Satellite and
    Radiocommunication Div., International Bur., released Apr. 3, 2000).
    Thus, the relevant period with respect to the matters here in issue
    is September 1, 1997 to April 14, 1999.

[^12]: FCC Complaint at ¶¶ 24-25; Answer at ¶ 73.

[^13]: FCC Complaint at ¶ 29; Answer at ¶ 77; Joint Statement at 2-3, ¶¶
    2-3, 5.

[^14]: FCC Complaint at Exhibit 3, Agreement Between COMSAT Mobile
    Communications and IDB Mobile Communications, Inc. (COMSAT/IDB
    Agreement or Agreement). By its own terms, this Agreement terminated
    on September 1, 1999. *Id*. at § 1.1.

[^15]: Joint Statement at 3-4, ¶¶ 4-8.

[^16]: *Id.*

[^17]: *COMSAT Corporation v. IDB Mobile Communications, Inc*. *et al*.,
    No. AW 98-281 (D. Md., filed January 28, 1998) (District Court
    Complaint). The District Court Complaint also named Teleglobe, Inc.
    and WorldCom, Inc. as defendants, but COMSAT's inclusion of these
    defendants in the District Court Complaint does not affect any of
    the issues here.

[^18]: District Court Complaint at 3-9.

[^19]: *Id*. at 10.

[^20]: Defendants\' Motion to Dismiss or, in the Alternative, to Stay,
    *COMSAT Corp. v. IDB Mobile Communications, Inc.*, No. AW 98-281 (D.
    Md) (filed Feb. 24, 1998), attached as Tab 1 to Letter dated Mar.
    31, 2000, from Rebekah J. Kinnett, counsel for COMSAT, to Magalie
    Roman Salas, Secretary, Federal Communications Commission, File No.
    E-99-08 (filed Mar. 31, 2000).

[^21]: District Court Order, *supra*.

[^22]: *Id.* at 9.

[^23]: *Id*. at 6-10.

[^24]: *Id*. at 10 (footnote omitted).

[^25]: *Id.* at 10 n.3. COMSAT appealed the District Court Order on
    October 13, 1998. *COMSAT Corp. v. IDB Mobile Communications, Inc.,*
    *et al*., No.98-2525 (4th Cir. filed Oct. 13, 1998). On May 21,
    1999, the U. S. Court of Appeals for the Fourth Circuit dismissed
    COMSAT\'s appeal without issuing an opinion. *COMSAT Corp. v. IDB
    Mobile Communications, Inc.,* *et al*., No.98-2525 (4th Cir. May 21,
    1999). On June 16, 1999, COMSAT filed a motion with the District
    Court pursuant to Rule 60 of the Federal Rules of Civil Procedure
    asking the District Court, *inter alia*, to clarify that the
    District Court intended to allow COMSAT to file a complaint with the
    Commission. *COMSAT Corporation v. IDB Mobile Communications, Inc*.,
    No. AW-98-281 (D. Md.), Motion of Plaintiff COMSAT Corporation
    Pursuant to Federal Rules of Civil Procedure 60(a) and 60(b)(6),
    attached to Letter dated Jul. 14, 1999, from Mark D. Wegener,
    counsel for COMSAT, to Adrien R. Auger, Staff Counsel, Federal
    Communications Commission, File No. E-99-08 (filed Jul. 14, 1999).
    Then, at a July 8, 1999 status conference attended by the parties'
    FCC and court counsel, both COMSAT and IDB asked Commission staff to
    hold this proceeding in abeyance until the District Court ruled on
    COMSAT's Rule 60 motion. The District Court denied COMSAT's Rule 60
    motion on August 23, 1999. *See* Letter dated Sept. 1, 1999, from
    Alfred M. Mamlet, counsel for IDB, to Magalie R. Salas, Secretary,
    Federal Communications Commission, File No. E-99-08 (filed Sept. 1,
    1999).

[^26]: Answer at 21-27; Brief of IDB Mobile Communications, Inc., File
    No. E-99-08 (filed Mar. 19, 1999) (IDB Brief) at 5-13; Reply Brief
    of IDB Mobile Communications, Inc. File No. E-99-08 (filed Apr. 9,
    1999) (IDB Reply Brief) at 5-8.

[^27]: Plaintiff's Reply to Affirmative Defenses, File No. 99-08 (filed
    Feb. 2, 1999) (COMSAT's Reply to Affirmative Defenses) at 2-9; Brief
    of COMSAT Corp., File No. E-99-08 (filed Mar. 19, 1999) (COMSAT
    Brief) at 21-23; Reply of COMSAT Corp., File No. E-99-08 (filed Apr.
    9, 1999) (COMSAT Reply Brief) at 1-2.

[^28]: *See, e.g.*, Restatement (2d) of Judgments §§ 19, 24, 25.

[^29]: *Id.* § 19, comment a.

[^30]: *See, e.g.*, *id*. § 24, comment c, § 25, comment d, § 19,
    comment a (stating that claim preclusion can apply "even though the
    substantive issues have not been tried, especially if the plaintiff
    has failed to avail himself of opportunities to pursue his remedies
    in the first proceeding."). COMSAT does not dispute that claim
    preclusion may apply where, as here, the first action was before a
    court and the second action is before an administrative agency.
    *See, e.g., Puerto Rico Maritime Shipping Authority v. Federal
    Maritime Commission*, 75 F.3d 63 (1st Cir. 1996).

[^31]: COMSAT's Reply to Affirmative Defenses at 2-6, 9; COMSAT Brief at
    21-23; COMSAT Reply Brief at 1-2. We call this the "express
    reservation" exception.

[^32]: COMSAT's Reply to Affirmative Defenses at 7-9; COMSAT Brief at
    22; COMSAT Reply Brief at 1-2. We call this the "jurisdictional"
    exception.

[^33]: Restatement (2d) of Judgments § 26(1)(b) (emphasis added). *See*
    *Venuto v. Witco Corp.*, 117 F.3d 754 (3d Cir. 1997); *Stolberg v.
    Board of Trustees for the State Colleges of the State of
    Connecticut*, 541 F.2d 890 (2d Cir.), *cert. denied*, 429 U.S. 897
    (1976); 18 Wright, Miller, & Cooper, *Federal Practice and
    Procedure*, § 4413 (Wright & Miller) ("A judgment that *expressly
    leaves open* the opportunity to bring a second action on specified
    parts of the claim or cause of action that was advanced in the first
    action should be effective to forestall preclusion.") (emphasis
    added).

[^34]: District Court Order at 10.

[^35]: *Id.* at n.3.

[^36]: COMSAT Brief at 21. *See* COMSAT's Reply to Affirmative Defenses
    at 2-6, 9; COMSAT Brief at 21-23; COMSAT Reply Brief at 1-2.

[^37]: For example, the Court states that "this is not an action to
    vindicate COMSAT's statutory rights under the Act . . .," District
    Court Order at 9, and defines "Act" as the Maritime Satellite Act
    alone*. Id*. at 3.

[^38]: *Venuto v. Witco Corp*., 117 F.3d at 759-761; *Stolberg v. Board
    of Trustees*, 541 F.2d at 893.

[^39]: 18 Wright & Miller § 4413 (emphasis added).

[^40]: *Id.*

[^41]: Restatement (2d) of Judgments § 26(1)(c). *See id.* at § 25,
    comment e; *International Association of Machinists & Aerospace
    Workers*, 512 F.2d 125, 131 ( 5^th^ Cir. 1975).

[^42]: District Court Order at 10 n.3. *See* COMSAT's Reply to
    Affirmative Defenses at 7-9; COMSAT Brief at 22; COMSAT Reply Brief
    at 1-2.

[^43]: COMSAT Reply at 8 (footnote omitted).

[^44]: 47 U.S.C. § 207.

[^45]: The literal translation of that Latin phrase is "remarks by the
    way." Black's Law Dictionary at 454 (Sixth Ed. 1990). We use it to
    mean "opinions of a judge which do not embody the resolution or
    determination of the court, and made without argument, or full
    consideration of the point, are not the professed deliberate
    determinations of the judge himself." *Id*.

[^46]: *See* Letter dated March 31, 2000 from Rebekah J. Kinnett,
    counsel for COMSAT Corporation, to Magalie Roman Salas, Secretary,
    Federal Communications Commission, File No. E-99-08 (filed Mar. 31,
    2000) (enclosing documents filed before the United States District
    Court for the District of Maryland in Civil Action No. AW-98-0281,
    *COMSAT Corporation v. IDB Mobile Communications, Inc.*). Moreover,
    neither of the parties raised this issue in its appellate papers
    filed with the Fourth Circuit, reflecting the parties' awareness
    that the District Court's note about the jurisdictional
    ramifications of the Maritime Satellite Act was extraneous *dicta.
    See COMSAT Corp. v. IDB Mobile Communications, Inc., et al*., No.
    98-2525 (4^th^ Cir.), Brief of Plaintiff-Appellant (dated Dec. 21,
    1998); Brief of Defendants-Appellees (dated Jan. 20, 1999); Reply
    Brief of Plaintiff-Appellant (dated Feb. 3, 1999).

[^47]: *See* COMSAT's Reply to Affirmative Defenses at 10; COMSAT Brief
    at 16-20; COMSAT Reply Brief at 3-4; IDB Brief at 15-17; IDB Reply
    Brief at 11-16.

[^48]: *See* Restatement (2d) of Judgments § 25, comment e (stating that
    the jurisdictional exception to the general rule of claim preclusion
    applies only if "the court in the first action would *clearly* not
    have had jurisdiction to entertain the omitted theory or ground (or,
    having jurisdiction, would *clearly* have declined to exercise it as
    a matter of discretion)....)" (emphasis added). We note that we are
    not deciding whether the Maritime Satellite Act provides for a civil
    cause of action in a federal district court. We conclude only that,
    given the state of the law and of the record in the District Court,
    it is not certain that the District Court would have precluded
    COMSAT from litigating a claim under the Maritime Satellite Act, had
    COMSAT actually chosen to assert such a claim. This conclusion
    suffices to render inapplicable the jurisdictional exception to the
    general rule of claim preclusion.

[^49]: IDB Brief at 13-15; IDB Reply Brief at 8-11.

[^50]: COMSAT Brief at 23-24; COMSAT Reply Brief at 2-3.

[^51]: 47 U.S.C. § 207.

[^52]: *See generally* *Bell Atlantic Corp. v. MFS Communications Co.,
    Inc.*, 901 F. Supp 835, 852 (D. Del. 1995)(observing that "\[n\]o
    extant caselaw applies § 207 to complaints brought before the
    district court and the FCC, where each complaint arguably subsumes
    conduct addressed by the other.").

[^53]: *See also* *Cancall PCS, LLC v. Omnipoint Corp*., 2000 WL 272309
    (S.D.N.Y. March 10, 2000) (holding that, under section 207,
    "Plaintiffs' complaint in this action may proceed because *it does
    not seek the same relief* as that sought in its 1997 informal
    complaint" with the FCC.) (emphasis added); *RCA Global
    Communications, Inc. v. Western Union Telegraph Co.*, 521 F. Supp.
    998, 1005-1006 (S.D.N.Y. 1981) (holding that, under section 207,
    Globcom could assert its court claim because, "\[w\]hile Globcom did
    invoke the FCC's remedial authority in 1979 with respect to WU's
    overseas service, WU has failed to demonstrate that Globcom ever
    presented a claim for *damages* to the FCC concerning WU's overseas
    operations.") (emphasis added); *Long Distance/USA, Inc. v. Bell
    Telephone Co. of Pennsylvania*, 7 FCC Rcd 408, 410-11 n.30 (Comm.
    Car. Bur. 1992) (stating that section 207 did not preclude FCC
    complaint because it did not seek the damages relief being sought in
    a pre-existing court complaint); *Fairmount Telephone Co., Inc. v.
    Southern Bell Tel. & Tel. Co.,* 53 RR 2d 639, 643 (Com. Car. Bur.
    1983) (holding that section 207 did not bar FCC complaint, because
    the plaintiff, who had previously filed a court complaint, "d\[id\]
    not seek double recovery of damages."). *Cf. Standard Oil Co. v.
    United States*, 283 U.S 235, 241 (1931) (holding that ICA analog to
    section 207 barred court complaint, because the plaintiff sought
    "the same relief it failed to secure from the \[Interstate
    Commerce\] Commission.").

[^54]: 7 FCC Rcd 408 (Com. Car. Bur. 1992).

[^55]: 44 FCC 2d 605, 607 (1973).

[^56]: See Letter dated Feb. 22, 2000, from Danny E. Adams, counsel to
    COMSAT, to Magalie R. Salas, Secretary, Federal Communications
    Commission, File No. E-99-08 (filed Feb. 22, 2000) (enclosing
    *COMSAT Corporation v. News Corporation Limited*, No. CV 96-7528 SVW
    (CTx), "Order Granting Summary Adjudication to Defendants and
    Denying Paintiff's Cross-motion for Summary Adjudication" (C.D. Ca.
    Dec. 29, 1999) (*COMSAT v. News Corp*.)).

[^57]: *COMSAT v. News Corp*. at 16 n.13.

[^58]: Given our prior determination that the Court did not direct
    COMSAT to bring its Maritime Satellite Act claim to the Commission,
    we need not address COMSAT's argument that such a court direction
    would alter the section 207 analysis. We also note that our decision
    in this case does not reach the question whether section 207
    precludes a FCC complaint when a previously filed court complaint
    arises from the same facts as the FCC complaint, *but seeks
    different relief than the FCC complaint.*