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 Federal  Communications  Commission  FCC  02-  115 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 Marpin  Telecoms  and  Broadcasting  Company  Limited, 


 Complainant, 
 v. 
 Cable  &  Wireless,  Inc.,  Cable  &  Wireless  USA,  Inc.,  and  Cable  &  Wireless,  plc, 


 Defendants. 


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 EB-  01-  MD-  015 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  April  11,  2002  Released:  April  19,  2002 


 By  the  Commission: 
 I.  INTRODUCTION 
 1.  In  this  Order,  we  deny  a  complaint  that  Marpin  Telecoms  and  Broadcasting  Company  Limited  (  Marpin)  filed  against  Cable  &  Wireless,  Inc.  (  CWI),  Cable  &  Wireless,  USA,  Inc.  (  CW 


 USA),  and  Cable  &  Wireless,  plc  (  CW  plc)  pursuant  to  section  208  of  the  Communications  Act  of  1934,  as  amended  (  Act).  1  Specifically,  we  reject  Marpins  claim  that  the  defendants  failure  to  restrain 
 the  allegedly  anticompetitive  activities  of  their  affiliate/  subsidiary  operating  in  the  Commonwealth  of  Dominica,  West  Indies  (  Dominica)  violates  section  214  of  the  Act,  and  the  Commission  order  under 
 which  CWI  and  its  successor,  CW  USA,  received  authorization  to  operate  in  the  United  States  pursuant  to  section  214.  2 


 1  47  U.  S.  C.    208.  Formal  Complaint,  File  No.  EB-  01-  MD-  015  (filed  Aug.  9,  2001)  (  Complaint). 
 Although  the  Complaint  states  that  Marpin  initiated  this  action  pursuant  to  section  206  (47  U.  S.  C.    206),  rather  than  section  208,  of  the  Act,  Complaint  at  1,  we  have  treated  this  as  an  action  pursuant  to  section  208  from  the  outset,  and 


 will  continue  to  do  so  in  this  order.  See  Notice  of  Formal  Complaint,  File  No.  EB-  01-  MD-  015  (dated  Aug.  15,  2001). 
 2  47  U.  S.  C.    214;  Cable  &  Wireless,  Inc.,  Order,  Authorization  and  Certificate,  13  FCC  Rcd  17933  (Int. 
 Bur.  1998)  (  1998  Section  214  Order).  Marpins  claim  that  defendants  violated  the  terms  and  conditions  of  the  1998  Section  214  Order  is  the  only  violation  of  section  214  that  Marpin  alleges  in  this  cases.  Accordingly,  we  treat 


 Marpins  claim  that  defendants  violated  section  214,  and  Marpins  claim  that  defendants  violated  the  1998  Section  214  Order,  as  the  same  claim. 
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 II.  BACKGROUND 
 A.  The  Section  214  Process 
 2.  Section  214  of  the  Act  requires  carriers  to  secure  certification  from  the  Commission  before  constructing  or  operating  interstate  or  international  communications  lines.  3  Section  214  provides, 


 in  pertinent  part,  that: 
 [n]  o  carrier  shall  .  .  .  acquire  or  operate  any  line,  or  extension  thereof,  or  shall  engage  in  transmission  over  or  by  means  of  such  additional  or  extended  line,  unless  and  until  there  shall 


 first  have  been  obtained  from  the  Commission  a  certificate  that  the  present  or  future  public  convenience  and  necessity  require  or  will  require  the  .  .  .  operation[  ]  of  such  additional  or 
 extended  line  .  .  .  .  4 
 The  Commission  may  attach  to  the  issuance  of  the  certificate  terms  and  conditions  that  it  deems  necessary  to  promote  the  public  interest.  5  This  case  involves  defendants  alleged  violation  of  a  condition  in  the 
 1998  Section  214  Order. 
 B.  The  Parties 
 3.  Marpin  provides  telecommunications,  Internet,  and  cable  television  services  in  Dominica,  6  and  operates  pursuant  to  licenses  granted  by  the  government  of  Dominica.  7  Marpin  is 


 organized  under  the  laws  of  Dominica,  and  its  offices  are  located  in  Dominica.  8  Marpin  does  not  claim  to  provide  any  telecommunications  services  in  the  United  States.  9 


 4.  CW  USA  is  a  telecommunications  carrier,  incorporated  in  the  United  States,  that  is  authorized  pursuant  to  section  214  of  the  Act  to  provide  facilities-  based  switched  and  private  line 
 international  telecommunications  and  international  resale  service  between  the  United  States  and  various  foreign  points,  including  Dominica.  10  CW  USA  formerly  operated  under  the  name  CWI,  and  the  entity 
 previously  known  as  CWI  ceased  to  exist  as  a  separate  entity  prior  to  the  filing  of  this  action.  11 
 5.  CW  USA  is  an  indirect,  wholly-  owned  subsidiary  of  CW  plc,  which  is  a  corporation 


 3  See,  e.  g.,  Atlantic  Tele-  Network,  Inc.  v.  FCC,  59  F.  3d  1384,  1386  (D.  C.  Cir.  1995). 
 4  47  U.  S.  C.    214(  a). 


 5  47  U.  S.  C.    214(  c). 
 6  Complaint  at  2,    2;  C&  W  USAs  Verified  Answer  to  Marpins  Verified  Complaint,  File  No.  EB-  01-  MD-015 
 (filed  Aug.  29,  2001)  (  Answer)  at  12,    2.  7 
 Revised  Joint  Statement  of  Stipulated  Facts,  Disputed  Facts  and  Key  Legal  Issues,  File  No.  EB-  01-  MD-  015  (filed  Oct.  29,  2001)  (  Joint  Statement)  at  9,    30-  32. 


 8  Joint  Statement  at  9,    29;  Complaint  at  2,    1;  Answer  at  12,    1,  2. 
 9  See  generally,  Complaint  at  2,    1,  2. 
 10  Complaint  at  3,    4;  Answer  at  13,    4. 
 11  Joint  Statement  at  6,    15-  18;  Opening  Brief,  File  No.  EB-  01-  MD-  015  (filed  Dec.  10,  2001)  (  Marpin 
 Brief)  at  3.  CW  USA  currently  holds  all  licenses  and  authorizations  previously  held  by  CWI.  Answer  at  13,    4.  See  Marpin  Brief  at  3.  Accordingly,  we  refer  to  CWI  and  its  successor  CW  USA  collectively  as  CW  USA  in 


 discussing  Marpins  allegations  in  this  case.  We  refer  to  CWI  individually,  only  when  quoting  or  paraphrasing  orders,  pleadings,  or  briefs  that  refer  to  CWI  individually. 
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 organized  under  the  laws  of  England  and  Wales.  12  CW  plc  does  not  operate  any  communications  facilities  in  the  United  States,  and  does  not  hold  any  authorization  to  offer  service  in  the  United  States 
 pursuant  to  section  214  of  the  Act.  13 
 6.  CW  USA  and  CW  plc  are  affiliates  of  a  company  known  as  Cable  &  Wireless  Dominica  Limited  (  CW  Dominica),  which  is  not  a  party  to  this  action.  14  CW  Dominica  is  the  dominant 


 telecommunications  carrier  in  Dominica.  15  CW  plc  indirectly  owns  80  percent  of  CW  Dominica,  and  the  Government  of  Dominica  owns  the  remaining  20  percent.  16  CW  USA  is  a  horizontal  affiliate  of  CW 
 Dominica.  17 
 7.  The  1998  Section  214  Order  granted  CWI  (before  it  operated  under  the  name  CW  USA)  authorization  under  section  214  to  offer  facilities-  based  switched  and  private  line  service  and  non-interconnected 


 resold  private  line  services  between  the  United  States  and  Dominica.  18  The  1998  Section  214  Order  also  granted  CWI  authority  to  provide  service  between  the  United  States  and  a  number  of 
 international  locations  in  addition  to  Dominica,  including  Jamaica,  and  St.  Kitts  and  Nevis.  19  The  International  Bureau  specifically  conditioned  such  authority  on  CWI  and  its  affiliates  in  Jamaica,  and  St. 
 Kitts  and  Nevis  not  engaging  in  anticompetitive  actions  that  will  give  the  applicants  an  unfair  advantage  in  the  U.  S.  international  services  market.  20  On  January  10,  2002,  after  Marpin  initiated  this  action,  the 
 Commissions  International  Bureau  released  a  subsequent  order  granting  CW  USA  authority  under  section  214  to  provide  facilities-  based  and  resale  telecommunications  service  between  the  United  States 
 and  all  international  points  except  China,  Jamaica,  Maldives,  Russia,  St.  Kitts  and  Nevis,  Seychelles,  Vanuatu  and  Yemen.  21 


 C.  The  Instant  Proceeding 
 8.  Marpin  claims  that  defendants  failure  to  restrain  the  allegedly  anticompetitive  activities  of  non-  party  CW  Dominica  in  Dominica  constitutes  a  violation  of  the  terms  and  conditions  of  CW  USAs 


 section  214  authorization.  22  In  particular,  Marpin  maintains  that  defendants  have  unlawfully  failed  to  prevent  CW  Dominica  from  endeavor[  ing]  to  retain  its  monopoly  status  in  Dominica  in  defiance  of  local 


 12  Complaint  at  2,    3;  Answer  at  12,    3;  Joint  Statement  at  3,    2.  CW  USA  is  an  indirect  wholly-  owned 
 subsidiary  because  it  is  wholly-  owned  by  another  company  that  is  ultimately  wholly-  owned  by  CW  plc  through  a  chain  of  subsidiary  corporations.  Joint  Statement  at  3,    4. 


 13  Answer  at  13,    4;  Marpin  Brief  at  4. 
 14  Joint  Statement  at  3,    3-  4. 
 15  Complaint  at  5,    10.  See  1998  Section  214  Order,  13  FCC  Rcd  at  17933-  34,      1,  23-  24  and  International 
 Authorizations  Granted,  Public  Notice,  DA  No.  02-  46,  2002  WL  24115  (Int.  Bur.)  (rel.  Jan.  10,  2002)  (  2002  Section  214  Public  Notice)(  grant  of  consolidated  limited  global  section  214  authority),  recon.  pending,  which 


 classify  CW  USA  as  a  dominant  carrier  on  the  route  between  the  United  States  and  Dominica.  16 
 Joint  Statement  at  3,    4.  17 
 Joint  Statement  at  3,    3.  CW  USA  is  a  horizontal  affiliate  of  CW  Dominica  because  both  companies  are  indirect,  commonly-  controlled  subsidiaries  of  CW  plc.  Id.  at    1,  3,  4. 


 18  1998  Section  214  Order,  13  FCC  Rcd  at  17933,    1. 
 19  1998  Section  214  Order,  13  FCC  Rcd  at  17933,    1. 
 20  1998  Section  214  Order,  13  FCC  Rcd  at  17937-  38,    19. 
 21  2002  Section  214  Public  Notice,  2002  WL  24115. 
 22  Complaint  at    7,  13;  at  8,    15;  at  23-  24,    56;  at  24-  25,    58;  See  Reply,  File  No.  EB-  01-  MD-  015  (filed 
 Sept.  4,  2001)  (  Reply)  at    23  (noting  that  the  entire  focus  of  Marpins  Complaint  is  the  violation  of  U.  S.  Defendants  Section  214  authorizations  by  all  three  Defendants). 
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 law  by  refusing  to  interconnect  its  facilities  with  Marpin,  challenging  Marpins  operating  authority,  and  terminating  Marpins  access  to  international  and  local  service  without  cause.  23  Marpin  alleges  that  this 
 anticompetitive  conduct  by  non-  party  CW  Dominica  in  Dominica  has  impeded  Marpins  efforts  to  offer  competing  telecommunications  service  in  Dominica.  24  Marpin  also  asserts  that  these  anticompetitive 
 actions  have  adversely  affected  domestic  communications  within  Dominica,  and  international  communications  between  Dominica  and  the  United  States.  25  Marpin  asks  the  Commission  to  enter  orders 
 declaring  the  defendants  to  be  in  violation  of  section  214;  revoking  CW  USAs  section  214  authority  to  provide  service  between  Dominica  and  the  United  States;  imposing  monetary  forfeitures  on  CW  USA; 
 and  awarding  monetary  damages  to  Marpin  in  excess  of  $3.2  million.  26 
 9.  CW  USA  answered  the  Complaint,  denying  the  violations  alleged  by  Marpin  and  advancing  various  affirmative  defenses.  No  answer  was  filed  on  behalf  of  CWI  or  CW  plc.  CW  USAs 


 answer  stated  that  CWI  has  operated  as  CW  USA  during  all  relevant  times,  and  that  CW  plc  is  not  a  common  carrier  subject  to  the  complaint  procedures  of  sections  206  and  208  of  the  Act.  27  CW  plc  did, 
 however,  jointly  file  with  CW  USA  a  motion  to  dismiss  the  complaint  challenging  the  Commissions  personal  jurisdiction  over  CW  plc  and  its  subject  matter  jurisdiction  over  this  action.  28 


 III.  DISCUSSION 
 A.  Marpin  Cannot  Establish  That  CW  USA  Violated  Section  214. 
 10.  Marpin  alleges  no  affirmative  anticompetitive  conduct  by  CW  USA.  Rather,  Marpin  contends  only  that  CW  USAs  failure  to  restrain  CW  Dominicas  alleged  misconduct  in  Dominica 


 violates  two  provisions  of  the  1998  Section  214  Order.  Specifically,  Marpin  argues  that  CW  USA  has  violated  paragraph  19  of  the  order,  which,  according  to  Marpin,  contains  a  prohibition  of  any 
 anticompetitive  conduct  by  CWI  (CW  USAs  predecessor)  and  any  of  its  foreign  affiliates  that  adversely 


 23  Complaint  at  7,    13.  More  specifically,  Marpin  alleges  that  CW  Dominica  has:  (1)  terminated  a  toll  free 
 number  service  that  Marpin  used  to  provide  Internet  access  locally,  Complaint  at  8-  10,    16-  22  (Count  1);  Marpin  Brief  at  14-  15;  (2)  refused  to  interconnect  CW  Dominicas  local  customers  and  Marpins  international  service,  or  to 


 terminate  international  long  distance  traffic  on  Marpins  facilities,  and  attempted  to  disrupt  Marpins  international  service  arrangement  with  MCI  WorldCom,  Complaint  at  10,    23  (Count  2);  Marpin  Brief  at  15;  (3)  turned  off  local 
 exchange  connections  that  CW  Dominica  previously  had  provided  to  Marpin  for  the  provisioning  of  local  service,  Complaint  at  11-  16,    24-  34  (Count  3);  Marpin  Brief  at  15;  (4)  refused  to  interconnect  the  Marpin  and  CW 
 Dominica  networks,  or  to  provide  connectivity  to  an  eastern  Caribbean  regional  fiber  network  that  would  allow  connections  to  MCI  WorldComs  exchange  facilities  in  the  United  States,  and  has  entered  into  an  agreement  with 
 the  Government  of  Dominica  and  other  Caribbean  nations  that  bars  Marpin  from  delivering  international  traffic  to  or  from  CW  Dominica  customers  for  a  prescribed  period  of  time,  Complaint  at  16-  21,    35-  50  (Count  4);  Marpin 
 Brief  at  15;  and  (5)  refused  to  allocate  to  Marpin  new  central  office  codes  required  for  the  provisioning  of  telecommunications  service,  Complaint  at  21-  22,    51-  53  (Count  5);  Marpin  Brief  at  15-  16. 
 24  Complaint  at  22-  23,    54. 
 25  Complaint  at  7,    14;  at  10,    21;  Marpin  Brief  at  16;  Letter  from  Eric  Fishman,  counsel  for  Marpin,  to  Lisa 
 J.  Saks,  Attorney,  Market  Dispute  Resolution  Division,  Enforcement  Bureau,  File  No.  EB-  01-  MD-  015  (filed  Jan.  18,  2002)  (clarifying  argument  made  on  page  16  of  Marpin  Brief). 


 26  Complaint  at  26-  27,    62,  63.  Marpin  requested,  pursuant  to  section  1.  722(  c)(  2)  of  the  formal  complaint 
 rules,  that  the  Commission  determine  damages  in  a  separate  proceeding  following  its  determination  of  liability  and  prospective  relief.  47  C.  F.  R.    1.  722(  c)(  2);  Complaint  at  27,    63  (mistakenly  identifying  the  applicable  rule  as 


   1.  722(  b)(  2)).  27 
 Answer  at  1,  n.  1.  See  id.  at  6-  7,    1-  5.  28 
 Joint  Motion  to  Dismiss  of  Cable  &  Wireless  USA,  Inc.  and  Cable  &  Wireless,  plc,  File  No.  EB-  01-  MD-015  (filed  Sept.  6,  2001)  (  Joint  Motion  to  Dismiss). 
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 affects  U.  S.  carriers  and  their  customers.  29  In  addition,  Marpin  maintains  that  CW  USA  has  violated  the  orders  prohibition  against  accepting  special  concessions  in  violation  of  section  63.14  of  our  rules.  30 
 11.  The  International  Bureau  included  paragraph  19  in  that  Order  in  response  to  a  petition  by  Sprint  Communications  Company,  L.  P.  (  Sprint)  that  opposed  granting  CWI  authority  to  provide  service 
 on  the  U.  S.-  Jamaica  and  U.  S.-  St.  Kitts  and  Nevis  routes.  Specifically,  Sprint  argued  that  past  anticompetitive  behavior  by  CWIs  monopoly  affiliates  Cable  &  Wireless  Jamaica,  Ltd.  (  CWJ)  and  St. 
 Kitts  and  Nevis  Telecommunications,  Ltd.  (  SKANTEL)  rendered  it  highly  likely  that  they,  together  with  CWI,  would  engage  in  future  conduct  posing  a  very  high  risk  to  competition.  31  In  response  to 
 these  complaints,  the  Bureau  imposed  the  following  condition  on  CWIs  authorization  to  provide  service  in  the  United  States: 


 In  light  of  the  continuing  unresolved  disputes  between  Sprint  and  CWJ,  and  the  apparent  delay  in  SKANTELs  initiation  of  return  traffic  to 
 Sprint,  we  condition  grant  of  this  authority  expressly  on  the  applicants,  SKANTEL  and  CWJ  not  engaging  in  anticompetitive  actions  that  will 
 give  the  applicants  an  unfair  advantage  in  the  U.  S.  international  services  market.  If  we  find  evidence  of  such  anticompetitive  conduct,  we  reserve 
 the  right  to  impose  substantial  forfeitures  or  suspend  or  terminate  this  authorization  for  failure  to  meet  the  conditions  of  the  grant.  32 


 12.  According  to  Marpin,  the  above  language  expressly  placed  CWI  on  notice  that  anticompetitive  conduct  by  its  foreign  affiliates  outside  the  United  States  which  adversely  affects  the  U.  S. 
 international  service  market  could  result  in  substantial  forfeitures  and  termination  of  its  license.  33  CW  USA  disputes  that  the  condition  stated  in  paragraph  19  applies  to  the  conduct  of  CWI  and  any  foreign 
 affiliate.  Rather,  CW  USA  contends  that  the  condition  applies  exclusively  to  the  conduct  of  CW  USA  and  its  foreign  affiliates  in  Jamaica  and  St.  Kitts  and  Nevis.  34 


 13.  We  agree  with  CW  USA.  We  conclude  that  paragraph  19,  when  read  in  the  context  of  the  entire  order,  compels  the  conclusion  that  the  paragraphs  conditions  apply  only  to  CWI  (and  successor 
 CW  USA)  and  to  the  two  foreign  affiliates  named  in  that  paragraph  (SKANTEL  and  CWJ)  with  respect  to  their  activities  in  Jamaica  and  St.  Kitts  and  Nevis    not  to  all  foreign  affiliates  or  all  foreign  countries  as 
 Marpin  contends.  As  the  order  makes  clear,  paragraph  19  directly  addressed  allegations  by  Sprint  regarding  the  conduct  of  CWJ  and  Skantel.  Notably,  Sprint  did  not  seek  to  deny  CWI  authority  to  operate 
 on  routes  between  the  United  States  and  all  foreign  countries  in  which  a  CWI  affiliate  was  the  dominant  carrier.  Sprints  petition  pertained  exclusively  to  the  U.  S.-  Jamaica  and  U.  S.-  St.  Kitts  and  Nevis  routes 
 and  specifically  alleged  that  the  conduct  of  CWIs  affiliates  in  those  countries  harmed  Sprint.  35  Instead  of  denying  CWI  authorization  on  those  routes,  as  Sprint  had  urged,  the  1998  Section  214  Order  conditioned 
 the  grant  of  section  214  authority.  Moreover,  we  note  that  the  International  Bureau  specifically  rejected  AT&  Ts  request  that  the  Bureau  impose  special  conditions  on  CWIs  provision  of  service  to  all  of  the 


 29  Complaint  at  24-  25,    58;  Reply  at    28;  Marpin  Brief  at  ii,  17. 
 30  47  C.  F.  R.    63.14.  Marpin  Brief  at  18. 
 31  1998  Section  214  Order,  13  FCC  Rcd  at  17937-  38,    10. 
 32  1998  Section  214  Order,  13  FCC  Rcd  at  17941-  42,    19  (footnotes  omitted)  (emphasis  added). 
 33  Marpin  Brief  at  17  (citing  1998  Section  214  Order,  13  FCC  Rcd  at  179341-  42,    19);  see  Reply  at    28. 
 34  CW  USA  Brief  at  10  (quoting  1998  Section  214  Order,  13  FCC  Rcd  at  17947,    38  (emphasis  added  by 
 CW  USA)).  35 
 1998  Section  214  Order,  13  FCC  Rcd  at  17935,    5. 
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 affiliated  routes  addressed  in  the  1998  Section  214  Order.  36  Thus,  we  read  the  1998  Section  214  Order  as  imposing  obligations  only  on  CWI  (and  its  successor  CW  USA),  CWJ,  and  Skantel,  and  only  with  respect 
 to  Jamaica  and  St.  Kitts  and  Nevis.  Thus,  because  behavior  with  respect  to  Dominica  is  at  issue  here,  we  deny  the  complaint.  Even  assuming  the  condition  covers  Skantel,  CWJ,  and  CWI  outside  of  Jamaica  and 
 St.  Kitts  and  Nevis,  Marpin  does  not  allege  that  Skantel  or  CWJ  have  engaged  in  any  anticompetitive  actions.  As  to  CW  USA  (formerly  CWI),  Marpin  alleges  no  affirmative  anticompetitive  conduct,  but 
 merely  a  failure  to  prevent  CW  Dominicas  allegedly  anticompetitive  conduct.  Nothing  in  the  record  suggests  that  CW  USA  participated  in  the  conduct  of  CW  Dominica.  We  will  not  find  on  this  record  that 
 the  alleged  lack  of  action  by  CW  USA  constitutes  engaging  in  anticompetitive  actions  in  violation  of  the  1998  Section  214  Order.  We  therefore  find  that  CW  USA  has  not  violated  the  1998  Section  214 
 Order. 
 14.  We  reject  Marpins  assertion  that  the  construction  of  paragraph  19  that  we  apply  here  gives  CW  USAs  foreign  affiliates  free  reign  to  engage  in  market  abuses  adversely  affecting  U.  S. 


 carriers  and  their  customers.  37  Our  rules  provide  safeguards  against  market  abuses  on  U.  S.  international  routes  that  exist  separate  and  apart  from  any  special  conditions  of  CW  USAs  existing  section  214 
 authorization.  38  In  addition,  we  note  that  CW  USA  is  classified  as  a  dominant  carrier  with  respect  to  a  number  of  international  routes,  including  the  U.  S.-  Dominica  route.  39  Therefore,  it  also  is  subject  on  these 
 routes  to  the  structural  safeguards  and  reporting  requirements  applicable  to  dominant  carriers.  40  Marpin  does  not  allege  that  CW  USA  has  violated  any  of  these  regulatory  safeguards,  with  the  exception  of 
 section  63.14  of  our  rules  41  and,  as  discussed  below,  Marpin  has  failed  to  offer  any  proof  in  support  of  its  section  63.14  claim.  Nor  has  Marpin  presented  any  facts  that  lead  us  to  conclude  that  these  safeguards, 
 together  with  the  specific  conditions  on  CW  USAs  section  214  authorization,  are  insufficient  to  protect  against  harm  to  competition  on  U.  S.  international  routes  resulting  from  potential  market  abuses  by  CW 
 USAs  foreign  affiliates. 
 15.  Marpin  also  alleges  that  CW  USA  violated  the  1998  Section  214  Order  by  accepting  a  special  concession  in  contravention  of  47  C.  F.  R.    63.  14.  This  claim,  too,  must  fail.  As  Marpin  correctly 


 notes,  42  the  1998  Section  214  Order  expressly  prohibited  CWI  from  accepting  special  concessions,  as  defined  in  47  C.  F.  R.    63.14  (b),  from  its  affiliated  foreign  carriers  in  any  market,  including  Dominica, 


 36  See  13  FCC  Rcd  at  17938,    12.  AT&  T  had  argued  that  such  conditions  were  warranted  because  the 
 Commissions  dominant  carrier  rules  and  safeguards  were  not  sufficient  to  reduce  the  risk  that  CWI  will  distort  competition  on  the  routes  it  seeks  to  serve.  Id.  The  International  Bureau,  however,  concluded  that  there  was  no 


 basis  to  impose  the  conditions  that  AT&  T  requested,  finding  that  the  Commissions  regulatory  safeguards  and  enforcement  authority  would  be  sufficient  to  detect  and  deter  anticompetitive  conduct  by  CWI  and  its  foreign 
 affiliates.  1998  Section  214  Order,  13  FCC  Rcd  at  17941,    18.  We  note  also  that  in  the  2002  Section  214  Public  Notice,  the  International  Bureau  granted  CW  USA  authority  to  provide  service  between  the  United  States  and  all 
 international  points,  with  the  exception  of  five  specific  locations  that  include  Jamaica  and  St.  Kitts  and  Nevis.  The  Bureaus  decision  to  treat  CW  USAs  service  to  Dominica  under  a  grant  of  global  operating  authority,  while 
 continuing  to  subject  CW  USA  to  the  terms  and  conditions  of  the  1998  Section  214  Order  with  respect  to  service  to  Jamaica  and  St.  Kitts  and  Nevis,  demonstrates  that  the  Bureau  continued  to  find  unnecessary  special  conditions 
 related  to  other  affiliated  routes,  including  Dominica.  37 
 Reply  at    28.  38 
 See,  e.  g.,  47  C.  F.  R    63.14  (prohibiting  U.  S.  carriers  from  accepting  special  concessions  from  foreign  carriers  with  market  power)  and  47  C.  F.  R    63.  21(  g)  (allowing  the  Commission  to  impose  additional  requirements 


 on  U.  S.  international  carriers  where  harm  to  competition  is  occurring  on  U.  S.  international  routes).  39 
 1998  Section  214  Order,  13  FCC  Rcd  at  17933-  34,    1;  2002  Section  214  Public  Notice,  2002  WL  24115.  40 
 See  47  C.  F.  R.    63.  10(  c).  41 
 47  C.  F.  R.    63.  14.  42 
 Complaint  at  7,    12(  e). 
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 for  which  CWI  is  subject  to  dominant  carrier  regulation.  43  Section  63.14(  b)  defines  special  concession  as  an  exclusive  arrangement  involving  services,  facilities,  or  functions  on  the  foreign  end  of  a  U.  S. 
 international  route  that  are  necessary  for  the  provision  of  basic  telecommunications  services  where  the  arrangement  is  not  offered  to  similarly  situated  U.  S.-  licensed  carriers  and  involves:  (1)  Operating 
 agreements  for  the  provision  of  basic  services;  (2)  Distribution  arrangements  or  interconnection  arrangements  .  .  .  or  (3)  Any  information,  prior  to  public  disclosure,  about  a  foreign  carriers  basic 
 network  services  that  affects  either  the  provision  of  basic  or  enhanced  services  or  interconnection  to  the  foreign  countrys  domestic  network  by  U.  S.  carriers  or  their  U.  S.  customers.  44 


 16.  Marpins  claim  under  section  63.  14  rests  entirely  on  its  argument  that  defendants  have  violated  the  special  concessions  rule  to  the  extent  they  benefit  indirectly  from  CW-  Dominicas 
 anticompetitive  practices  and  do  not  disclose  to  U.  S.  carriers  and  customers  the  blocking  of  Marpin-related  traffic.  45  This  argument  fails  to  allege  the  essential  elements  of  a  claim  under  section  63.14. 
 Marpin  has  not  identified  any  arrangement  between  CW  USA  and  CW  Dominica  that  has  not  been  offered  to  similarly  situated  U.  S.-  licensed  carriers.  Marpin  concedes  that  the  alleged  misconduct  of 
 which  it  complains  under  section  63.14  is  the  refusal  of  CW  Dominica,  a  Dominican  carrier,  to  interconnect  Marpin,  also  a  Dominican  carrier,  with  U.  S.  carriers.  Marpin  contends  that  CW  USA  enjoys 
 "indirect  benefits"  as  a  result  of  this  alleged  misconduct.  46  However,  such  unspecified  indirect  "benefits,"  by  themselves,  do  not  qualify  as  "an  exclusive  arrangement"  within  the  meaning  of  section  63.  14.  47 
 Further,  even  if  access  to  information  about  the  blocking  of  Marpin-  related  traffic  could,  under  some  circumstances,  qualify  as  a  special  concession,  as  Marpins  argument  implies,  Marpin  has  not  even 
 alleged  that  CW  USA  had  exclusive  access  to  information  about  the  blocking  of  Marpin-  related  traffic  that  was  unavailable  to  similarly  situated  U.  S.  carriers.  For  these  reasons,  we  must  deny  Marpins  claim 
 that  CW  USA  has  violated  the  conditions  of  its  section  214  authorization  by  accepting  a  special  concession  prohibited  under  47  C.  F.  R    63.14.  48 


 B.  Marpin  Has  Failed  to  Establish  that  CW  plc  Violated  Section  214. 
 17.  Marpin  alleges  that  CW  plc  has  violated  the  terms  and  conditions  of  the  section  214  authorization  held  by  CW  USA.  49  Marpin  acknowledges  that  CW  plc  neither  operates  any 


 communications  facilities  in  the  United  States,  nor  holds  any  authorization  to  provide  service  pursuant  to  section  214  of  the  Act.  50  Marpin  therefore  does  not  contend  that  CW  plc  has  violated  the  terms  and 
 conditions  of  any  section  214  authorization  issued  to  CW  plc.  Rather,  Marpins  allegations  against  CW 
 43  1998  Section  214  Order,  13  FCC  Rcd  at  17947,    37. 
 44  47  C.  F.  R.    63.  14(  b)  (emphasis  added). 
 45  Marpin  Brief  at  18  (emphasis  added). 
 46  Id. 
 47  See  47  C.  F.  R.    63.  14(  b);  see  also  supra  para.  15. 
 48  In  its  brief,  Marpin  asserted  for  the  first  time  that  the  conduct  described  in  the  Complaint  also  violated 
 sections  201  and  202  of  the  Act.  Marpin  Brief  at  18.  The  Complaint  did  not  allege  violations  of  section  201  or  section  202,  and  Marpin  devoted  only  one  half  page  of  its  brief  to  these  alleged  violations.  Marpin  Brief  at  18.  As  a 


 result,  the  record  provides  an  inadequate  basis  for  us  to  assess  the  merits  of  Marpins  section  201  and  202  claims.  See,  e.  g.,  AT&  T  Corp.  v.  Jefferson  Telephone  Co.,  Memorandum  Opinion  and  Order,  16  FCC  Rcd  16130,  16133 
 n.  18  (2001);  Consumer.  Net  v.  AT&  T  Corp.,  Order,  15  FCC  Rcd  281,  300,    40  n.  93  (1999)  (declining  to  consider  an  argument  raised  for  the  first  time  in  the  briefs).  Cf.,  Building  Owners  and  Managers  Assn  Intl  v.  FCC,  254  F.  3d 
 89,  100  n.  14  (D.  C.  Cir.  2001)  (declining  to  address  an  issue  raised  cursorily  in  the  brief).  49 
 Complaint  at  7,    13;  at  8,    15;  at  23-  24,    56;  at  24-  25,    58;  Reply  at    23  (noting  that  the  entire  focus  of  Marpins  Complaint  is  the  violation  of  the  U.  S.  Defendants  section  214  authorizations  by  all  three  Defendants) 


 50  Answer  at    II  (A)  (4);  Marpin  Brief  at  4. 
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 8 
 plc  for  violating  section  214  are  entirely  derivative  of  its  claims  against  CW  USA.  Thus,  because  Marpin  has  not  established  any  violation  of  CW  USAs  section  214  authorization,  Marpins  claims  against  CW 
 plc  cannot  stand.  51 
 IV.  CONCLUSION 
 18.  We  conclude  that  Marpin  has  failed  to  allege  facts  sufficient  to  support  its  claims  that  CW  USA  and  CW  plc  violated  section  214  of  the  Act,  or  the  terms  and  conditions  of  the  order  under 


 which  CW  USA  received  authorization  to  operate  pursuant  to  section  214.  Consequently,  we  deny  Marpins  claims  against  CW  USA  and  CW  plc  in  their  entirety.  52 


 V.  ORDERING  CLAUSES 
 19.  ACCORDINGLY,  IT  IS  ORDERED,  pursuant  to  sections  1,  4(  i),  4(  j),  and  214  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    151,  154(  i),  154(  j),  and  214,  that  the  Complaint 


 filed  by  Marpin  Telecoms  and  Broadcasting  Company  Limited  against  Cable  &  Wireless,  Inc.,  Cable  &  Wireless,  USA,  Inc.,  and  Cable  &  Wireless,  plc  IS  DENIED  in  its  entirety,  and  this  proceeding  is 
 TERMINATED  WITH  PREJUDICE. 
 20.  IT  IS  FURTHER  ORDERED,  that  the  Motion  for  Summary  Judgment  or,  in  the  Alternative,  to  Compel,  filed  on  September  4,  2001,  and  the  Joint  Motion  to  Dismiss  of  Cable  &  Wireless 


 USA,  Inc.  and  Cable  &  Wireless  plc,  filed  on  September  6,  2001,  ARE  DENIED  as  moot. 
 FEDERAL  COMMUNICATIONS  COMMISSION 


 Marlene  H.  Dortch  Secretary 


 51  We  therefore  find  it  unnecessary  to  reach  the  separate  question  of  whether  the  Commission  has  personal 
 jurisdiction  over  CW  plc.  We  conclude  that,  even  assuming  jurisdiction  exists,  Marpin  cannot  establish  that  CW  plc  violated  section  214  of  the  Act  or  CW  USAs  section  214  authorization. 


 52  Marpin  moved  for  summary  judgment  against  CWI  and  CW  plc  based  on  their  failure  to  answer  the 
 Complaint  or,  in  the  alternative,  to  compel  the  defendants  to  answer  fully  the  allegations  in  the  Complaint.  Motion  for  Summary  Judgment  or,  in  the  Alternative,  to  Compel,  File  No.  EB-  01-  MD-  015  (filed  Sept.  4,  2001).  Since  filing 


 that  motion,  Marpin  has  conceded  that  CWI  no  longer  exists  separate  from  CWUSA,  Marpin  Brief  at  3,  and  has  stated  that  it  sees  no  need  for  an  exercise  of  separate  jurisdiction  over  CWI  as  long  as  CW  USA  is  held  fully 
 responsible  for  the  actions  of  CWI  and  for  the  production  of  documents  formerly  in  the  possession  of  CWI,  id.  Consequently,  we  consider  Marpins  request  for  summary  judgment  against  CWI  to  be  withdrawn.  In  any  event,  we 
 deny  the  Motion  for  Summary  Judgment  as  moot  because,  as  discussed  above,  even  assuming  the  facts  alleged  by  Marpin  are  true,  we  find  that  Marpin  cannot  establish  a  violation  of  section  214  or  CW  USAs  section  214 
 authorization  by  CW  USA,  its  predecessor  CWI,  or  its  indirect  parent  CW  plc.  Moreover,  because  we  deny  the  Complaint  based  on  Marpins  failure  to  establish  that  any  of  the  defendants  violated  section  214  or  CW  USAs 
 section  214  authorization,  we  need  not  address  the  additional  grounds  for  dismissal  that  CW  USA  and  CW  plc  raised  in  the  Joint  Motion  to  Dismiss.  In  addition,  we  deny  as  moot  Marpins  two  letter  requests  for  leave  to  supplement 
 the  exhibits  to  the  Marpin  Brief.  Letter  from  Eric  Fishman,  counsel  for  Marpin,  to  Lisa  J.  Saks,  Attorney,  Market  Dispute  Resolution  Division,  Enforcement  Bureau,  File  No.  EB-  01-  MD-  015  (filed  Feb.  22,  2002);  Letter  from  Eric 
 Fishman,  counsel  for  Marpin,  to  Lisa  J.  Saks,  Attorney,  Market  Dispute  Resolution  Division,  Enforcement  Bureau,  File  No.  EB-  01-  MD-  015  (filed  Mar.  7,  2002). 
8