DIGICEL HAITI’S MOTION TO STAY SCHWABE, WILLIAMSON & WYATT, P.C. 

Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

Anne M. Talcott, OSB #965325 

Email: atalcott@schwabe.com 

SCHWABE, WILLIAMSON & WYATT, P.C. 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503.222.9981 

Facsimile: 503.796.2900 

Robert C. L. Vaughan (Pro Hac Vice) 

Email: rvaughan@kvllaw.com 

Cherine Smith Valbrun (Pro Hac Vice) 

Email: cvalbrun@kvllaw.com 

KIM VAUGHAN LERNER LLP 

312 SE 17th Street, Suite 300 

Fort Lauderdale, FL 33316 

Telephone: 954.527.1115 

Facsimile: 954.527.1116 

Kent D. Bressie (Pro Hac Vice) 

Email: kbressie@hwglaw.com 

HWG LLP 

1919 M Street N.W., Suite 800 

Washington, D.C. 20036 

Telephone: 202.730.1337 

Facsimile: 202.730.1303 

(Additional counsel shown on signature page.) 

Attorneys for Plaintiff, Unigestion Holdings, S.A., a foreign 

corporation, d/b/a Digicel Haiti 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNIGESTION HOLDINGS, S.A. d/b/a

DIGICEL HAITI, 

Plaintiff and Counterclaim 

Defendant, 

vs. 

UPM TECHNOLOGY, INC., et al., 

Defendants and Counterclaim 

Plaintiffs.

Case No. 3:15-cv-00185-SI 

PLAINTIFF UNIGESTION HOLDINGS, 

S.A.’S MOTION TO STAY DEFENDANTS’

COUNTERCLAIMS PENDING

RESOLUTION OF ISSUES ARISING

UNDER THE COMMUNICATIONS ACT

OF 1934, AS AMENDED

Oral Argument Requested

Case 3:15-cv-00185-SI Document 421 Filed 09/19/22 Page 1 of 8
Page 1 - DIGICEL HAITI’S MOTION TO STAY SCHWABE, WILLIAMSON & WYATT, P.C. 

Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

LR 7-1 CERTIFICATION 

Pursuant to Local Rule 7-1(a), Plaintiff Unigestion Holdings, S.A., d/b/a Digicel Haiti 

(“Digicel Haiti”) certifies that the parties made a good faith effort to discuss the issues presented 

in this motion in open court on September 13, 2022, and the issues could not be resolved. 

INTRODUCTION 

Plaintiff Unigestion Holdings, S.A., d/b/a Digicel Haiti (“Digicel Haiti”) submits the 

following Motion to Stay Defendants’ Counterclaims Pending Resolution of Issues Arising Under 

The Communications Act of 1934, as Amended.1 

LEGAL STANDARD 

A district court’s discretion to stay proceedings is incidental to the power inherent in 

every court to control the disposition of the causes on its docket with economy of time and effort 

for itself, for counsel, and for litigants. Trees v. Serv. Emps. Int’l Union Local 503, 574 F. Supp. 

3d 856, 862 (D. Or. 2021) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). A district 

court may stay proceedings “pending resolution of independent proceedings which bear upon the 

case,” whether those proceedings are “judicial, administrative, or arbitral in character.” Id. 

(quoting Lockyer v. Mirant Corp., 398 F.3d 1098, 1111 (9th Cir. 2005)). The primary 

jurisdiction doctrine permits a federal court to postpone the consideration of issues within “the 

special competence of an administrative body” while the issues are presented to the appropriate 

administrative agency for its consideration. United States v. W. Pac. R.R. Co., 352 U.S. 59, 64 

(1956); Reiter v. Cooper, 507 U.S. 258, 268 (1993). In such a case, “the judicial process is 

 

1

 As Digicel Haiti explained, the “referral” process requires first a stay from this Court and then a 

Petition to the FCC with the detailed briefing of the issues. Accordingly, Digicel Haiti has not 

provided that briefing here but would be happy to further brief any additional issues required by 

the Court. 

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Page 2 - DIGICEL HAITI’S MOTION TO STAY SCHWABE, WILLIAMSON & WYATT, P.C. 

Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

suspended pending referral of such issues to the administrative body for its views.” Tassy v. 

Brunswick Hosp. Ctr., Inc., 296 F.3d 65, 73 (2d Cir. 2002). “The doctrine allows a district court 

to refer a matter to the appropriate administrative agency for a ruling in the first instance, even 

when the matter is initially cognizable by the district court.” Access Telecomms. v. Sw. Bell Tel. 

Co., 137 F.3d 605, 608 (8th Cir. 1998) (citation omitted). 

In deciding whether to stay a proceeding, the court should consider three factors: “(1) the 

need to resolve an issue that has been placed by Congress within the jurisdiction of an 

administrative body having regulatory authority (2) pursuant to a statute that subjects an industry 

or activity to a comprehensive regulatory authority that (3) requires expertise or uniformity in 

administration.” Syntek Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775, 780 (9th Cir. 

2002). “[C]ourts apply the doctrine of primary jurisdiction . . . to obtain the benefit of an agency’s 

expertise and experience.” Access Telecomms., 137 F.3d at 608. Accordingly, referral to the 

relevant administrative agency may be appropriate when a case “rais[es] issues of fact not within 

the conventional experience of judges or . . . requir[es] the exercise of administrative discretion.” 

Id. A court may also defer to an administrative agency on primary jurisdiction grounds to 

“promote uniformity and consistency within the particular field of regulation.” Id. 

MOTION TO STAY 

Digicel Haiti moves for a stay of this Court’s consideration of UPM’s counterclaim and 

all issues under the Communications Act of 1934, as amended (the “Communications Act”) 

raised therein, even if also raised in relation to UPM’s defenses against Digicel Haiti’s fraud 

claim. A stay would permit the Federal Communications Commission (“FCC”) to apply its 

experience and expertise to determine whether Digicel Haiti, a foreign telecommunications 

carrier, offered a common-carrier service to UPM that was subject to Sections 201, 202, and 214 

of the Communications Act, and if so, whether Digicel Haiti’s termination of that service due to 

fraud constitutes an unjust and unreasonable practice within the meaning of Section 201(b) or 

unreasonable discrimination within the meaning of Section 202. 

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Page 3 - DIGICEL HAITI’S MOTION TO STAY SCHWABE, WILLIAMSON & WYATT, P.C. 

Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

It would also allow the FCC to address subsidiary issues within that question: (1) 

whether the offering of roaming services by a foreign carrier to foreign subscribers who might 

visit the United States constitutes the resale of telecommunications services in the United States 

pursuant to Section 214 or a foreign carrier activity beyond its jurisdiction; (2) whether such 

activity constitutes a “physical connection” as contemplated by the Act and, if so, whether any 

activity beyond such a mere physical connection with the United States is sufficient to trigger the 

licensing requirements in Section 214 of the Communications Act, even if such a connection 

falls within the FCC’s ancillary jurisdiction under Title I of the Communications Act; (3) how, if 

at all, the offering of other telecommunications or non-telecommunications services by Digicel 

Haiti or a corporate affiliate bears on the question of whether Digicel Haiti itself offered a 

common-carrier telecommunications service to UPM in the United States; and (4) whether 

UPM’s success in exporting to the United States SIM cards that Digicel Haiti offered to Haitian 

subscribers for services was sufficient to create an offering of a telecommunications service in 

the United States under Section 214. Applying the first and second Syntek factors, Digicel Haiti 

believes that in enacting the Communications Act, the U.S. Congress granted the FCC plenary 

authority over international communications as part of a comprehensive regulatory scheme. 

Section 1 of the Communications Act, 47 U.S.C. § 151, created the FCC “for the purpose of 

regulating interstate and foreign commerce in communication by wire and radio.” Section 2(b) 

states that the Communications Act “shall apply to all interstate and foreign communication by 

wire2 or radio and all interstate and foreign transmission of energy by radio,3 which originates 

 

2

 47 U.S.C § 153(59), available at 

https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_

id=47-USC-738060388-

1952898756&term_occur=999&term_src=title:47:chapter:5:subchapter:I:section:152 

3

 47 U.S.C. § 153(57), available at 

https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_

id=47-USC-1821876995-

1952898754&term_occur=999&term_src=title:47:chapter:5:subchapter:I:section:152 

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Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

and/or is received within the United States,4 and to all persons5 engaged within the United 

States in such communication or such transmission of energy by radio, and to the licensing and 

regulating of all radio stations6 as hereinafter provided. 47 U.S.C. § 152(b). See also, Primary 

Jurisdiction Referrals Involving Common Carriers, Public Notice, 15 FCC Rcd 22,449 (2000); 

Richard Welch, FCC Associate General Counsel, Blog Post, Demystifying Primary Jurisdiction 

Referrals (Jul. 29, 2010), https://www.fcc.gov/news-events/blog/2010/07/29/demystifyingprimary-jurisdiction-referrals (stating that “In the communications law context, a primary 

jurisdiction referral typically occurs when private litigants raise an issue in court (most often a 

federal district court) that involves a contested interpretation of the Communications Act, the 

FCC’s rules, or an FCC order – in other words, a dispute over an issue that the Commission has 

the congressionally delegated authority to resolve.”). Trial courts have frequently stayed 

proceedings on such grounds. Total Telecomms. Servs., Inc. v. AT&T, 919 F. Supp. 472, 478 

(D.D.C. 1996) (finding that “the resolution of these issues involve policy considerations 

concerning the public interest and technical questions relating to TTS’s tariff and operating 

structure, that the Communications Act has vested the FCC with the mandate to determine.”). 

The Communications Act-related issues in this case substantially implicate the FCC’s existing 

and comprehensive regulatory rules, policies, and practices governing international 

telecommunications and roaming services. 

 

4

 47 U.S.C § 153(58), available at 

https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_

id=47-USC-2032517217-

1952898755&term_occur=999&term_src=title:47:chapter:5:subchapter:I:section:152 

5

 47 U.S.C § 153(39), available at 

https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_

id=47-USC-991716523-1952898694&term_occur=999&term_src= 

6

 47 U.S.C. § 153(42), available at 

https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_

id=47-USC-1356563983-

1952898718&term_occur=999&term_src=title:47:chapter:5:subchapter:I:section:152 

Case 3:15-cv-00185-SI Document 421 Filed 09/19/22 Page 5 of 8
Page 5 - DIGICEL HAITI’S MOTION TO STAY SCHWABE, WILLIAMSON & WYATT, P.C. 

Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

Applying the third Syntek factor, Digicel Haiti believes that the Court should defer to the 

FCC on primary jurisdiction grounds in order to permit the FCC to apply its expertise and 

promote uniformity and consistency of regulation of international telecommunications services 

and roaming services. Pursuant to the Communications Act, the FCC has established 

regulations, policies, and practices governing: (1) the licensing of providers of international 

telecommunications services, 47 C.F.R. Part 63; (2) the nature of resale services, Regulatory 

Policies Concerning Resale and Shared Use of Common Carrier Services, Report and Order, 60 

FCC.2d 261, 271 ¶ 17 (1976), and the distinction between resale services and roaming services, 

Amendment to Parts 1 and 63 of the Commission’s Rules, Report and Order, 22 FCC Rcd 

11,398, 11,404 ¶ 8 (2007); (3) the nature of an offering under the test for common-carriage set 

forth in National Ass’n of Regulatory Utility Comm’ners v. FCC, 533 F.2d 601, 608 (D.C. Cir. 

1976); and (4) the nature of unjust and unreasonable charges, practices, classifications, and 

regulations under Section 201 and the nature of unreasonable discrimination under Section 202. 

These are all questions that are central to the resolution of the Communications Act claims in this 

case. There is no question that the FCC therefore, has the expertise to best address those issues. 

Regarding uniformity of regulation, as Digicel Haiti has noted [ECF 397], UPM’s 

regulatory theories are wholly inconsistent with the absence of any FCC licensing of foreign 

mobile carriers (as opposed to their U.S. affiliates) and the absence of FCC enforcement actions 

for any failure to obtain such licenses. Digicel Haiti believes that the FCC is best positioned to 

address the application of the Communications Act here, while ensuring consistency with its 

existing regulatory rules, policies, and practices. Trial courts have frequently stayed proceedings 

on such grounds. See, e.g., Sprint Spectrum L.P. v. AT&T Corp., 168 F. Supp. 2d 1095, 

1096 (W.D. Mo. 2001) (finding that “[r]eferral to the FCC is especially appropriate in this case 

for the additional reason that only the FCC can ensure a uniform national resolution of the issues 

presented”); Total Telecomms., 919 F. Supp. at 978 (stating that “[t]he powers granted to the 

FCC are a reflection of Congress’ intention that one governmental entity be vested with the 

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Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

responsibility of developing, coordinating and enforcing a uniform telecommunications 

policy.”).

A stay would permit Digicel Haiti and/or UPM to consult with the FCC regarding 

procedural issues and to petition the FCC for entry of an order addressing the Communications 

Act issues by way of a declaratory ruling on the issues noted herein. As the FCC itself has said, 

the term “primary jurisdiction referral” is a misnomer, as the court would not make a “referral” 

to the FCC. See Welch, Demystifying Primary Jurisdiction Referrals. Rather, it is the parties 

that would seek relief from the FCC. Upon resolution of the issues raised with the FCC, this 

Court would then recognize the FCC’s decision on those issues as a binding statement of law. 

Id. 

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Case 3:15-cv-00185-SI Document 421 Filed 09/19/22 Page 7 of 8
Page 7 - DIGICEL HAITI’S MOTION TO STAY SCHWABE, WILLIAMSON & WYATT, P.C. 

Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

CONCLUSION 

For the reasons stated herein, Digicel Haiti respectfully requests that the Court grant 

Digicel Haiti’s motion to stay Defendant UPM’s counterclaims pending FCC action on the 

Communications Act issues noted herein. 

Dated this 19th day of September, 2022. 

Respectfully submitted, 

By: s/ Kent D. Bressie 

Anne M. Talcott, OSB #965325 

Email: atalcott@schwabe.com 

Kathryn E. Kelly, OSB #175162 

Email: kkelly@schwabe.com 

Andrew J. Lee, OSB #023646 

Email: ajlee@schwabe.com 

Sarah Kobak, OSB #043495 

Email: skobak@schwabe.com 

SCHWABE, WILLIAMSON & WYATT, P.C. 

Telephone: 503.222.9981 

Facsimile: 503.796.2900 

Robert C. L. Vaughan (Pro Hac Vice) 

Email: rvaughan@kvllaw.com 

Cherine Smith Valbrun (Pro Hac Vice) 

Email: cvalbrun@kvllaw.com 

Leah B. Storie (Pro Hac Vice) 

Email: lstorie@kvllaw.com 

Anisha Carla Atchanah 

Email: Aatchanah@kvllaw.com 

KIM VAUGHAN LERNER LLP 

312 SE 17th Street, Suite 300 

Fort Lauderdale, FL 33316 

Telephone: (954) 527-1115 

Facsimile: (954) 527-1116 

Kent D. Bressie (Pro Hac Vice) 

Email: kbressie@hwglaw.com 

HWG LLP 

1919 M Street N.W., Suite 800 

Washington, D.C. 20036 

Telephone: 202.730.1337 

Facsimile: 202.730.1303 

Attorneys for Plaintiff, Unigestion Holdings, S.A., a 

Foreign Corporation, d/b/a Digicel Haiti

PDX\AMT\34769226.1 

Case 3:15-cv-00185-SI Document 421 Filed 09/19/22 Page 8 of 8