PTI wants MPLA suit transferred to federal court

Micronesian Telecommunications Corp. and its owner, Pacific Telecom, Inc. sought yesterday the transfer of the Marianas Public Lands Authority’s lawsuit against them from the CNMI Superior Court to Saipan’s federal court, alleging that the agency’s causes of action were based on claims that infringe upon the U.S. Constitution and federal law.

MTC and PTI filed with the federal court a notice of removal, saying that MTC is a duly franchised CNMI telecommunications local exchange carrier subject to the provisions of the Federal Telecommunications Act of 1996. The companies also accused the MPLA of engaging in discriminatory practices, particularly in the agency’s bid to impose certain public land lease and easement requirements.

The companies’ attorney, Colin M. Thompson, asserted that MTC holds various rights-of-way or easements from the CNMI government for its underground cables that are used to transmit telecommunications data.

The MPLA and its board have sued the companies at the Superior Court for alleged breach of public land leases and for alleged improper use of public lands easement in burying their cables without paying the agency easement fees. The MPLA filed the suit in early October after the companies disputed its demand for payment of some $2.1 million related to the easement fees—less than a month after PTI finalized the purchase deal.

Thompson said the CNMI government has given MTC the right to use the easements under its telecommunications franchise agreement with the company. He said MPLA’s cause of action to eject MTC from public lands, including underground cables, violates the company’s contractual relationship with the CNMI government to serve as the CNMI local telephone carrier. He also said that there would be a CNMI-wide cessation of telecom services and a barrier on MTC to provide interstate and intrastate services should the MPLA’s suit at the Superior Court prevail.

Besides, he said that all breaches and default on the public land leases are subject to enforcement by the Secretary of the CNMI Department of Lands and Natural Resources, not the MPLA, under the CNMI Fiber Optic Communications Facilitation and Competitive Telecommunications Act of 1996, which the MPLA claims to have modified the franchise agreement between the CNMI government and MTC.

But Thompson also assailed the MPLA’s assertion of the CNMI’s fiber optic law, saying that the local statute is premised upon the two other local laws—the Marine Sovereignty Act of 1980 and the Submerged Lands Act—that vested ownership of submerged lands in the CNMI government. Thompson said those two local laws have been declared preempted by federal law, citing a ruling by the U.S. Court of Appeals for the Ninth Circuit, which declared those laws unconstitutional.

He also asserted that the fiber optic law infringes upon the pre-existing contractual terms between the CNMI government and MTC—thus unconstitutional.

“[The MPLA and its board] have embarked on a course of conduct, which seeks to impose lease and easement requirements that are discriminatory and not competitively neutral, the effect of which would amount to a regulatory scheme that would prohibit MTC from providing competitively priced telecommunications services in violation of 47 U.S.C. §253,” Thompson said.

That law provides that no state law or local legal requirement may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service. Although that law also states that it does not affect the authority of a state or local government to require fair and reasonable compensation from telecom providers for public rights-of-way, it also provides that such fee requirement should be done “on a competitively neutral and nondiscriminatory basis…if the compensation required is publicly disclosed by such government.”

Thompson alleged that the MPLA has sought unfair and unreasonable compensation from MTC by signing rates that are purportedly not competitively neutral and are discriminatory.