Tata Reply to Opposi

REPLY submitted by Tata Communications (America) Inc. & Tata Communications Services (America) Inc.

Reply to Opposition

2010-10-13

This document pretains to ITC-214-20100907-00357 for International Global Resale Authority on a International Telecommunications filing.

IBFS_ITC2142010090700357_845145

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In re Application of ) ) Tata Telecom INC ) File No. ITC—214—20100907—00357 ) To Provide International Facilities—Based ) and Resold Services to All International ) Points ) REPLY TO OPPOSITION Tata Communications (America) Inc. and Tata Communications Services (America) Inc. October 13, 2010

SUMMARY In its Petition to Deny ("Petition"), Petitioners demonstrated, via eight Exhibits (six of which were documents emanating from 214 Applicant), that 214 Applicant‘s past actions had demonstrated that it does not meet the basic character and other qualifications for an applicant for Section 214 authority and that therefore a grant of the instant Application would not serve the public interest, convenience, and necessity. Specifically, Petitioner showed that 1) 214 Applicant has been using the name "Tata" in bad faith for the purpose of deceiving the public into believing it is affiliated with the Tata Group to which Petitioners belong; 2) according to its own representations in the WIPO proceedings and federal district court litigation, and consistent with its public websites, 214 Applicant has been violating the Communications Act of 1934, as amended, and the Commission‘s rules by unlawfully providing international service in the United States without Commission authority for allegedly several years; and 3) the information in 214 Applicant‘s submission is incomplete, inaccurate, and lacks candor, in that 214 Applicant failed to disclose its relationship with multiple foreign affiliates, failed to disclose the citizenship of its principal owner, and did not even set forth its actual corporate name. In response, 214 Applicant opted to discuss procedure rather than substance. It argues, inter alia, that the Commission must dismiss the Petition to Deny because Petitioner violated two inapt procedural rules relating to wireless carrier proceedings, and because Petitioner filed its Petition to Deny too early, purportedly affecting service, and because Petitioner is not a "Real Party in Interest." Although not directly stated as such, it seems that 214 Applicant is arguing that the Commission must grant its 214 Application (essentially saying that the Commission must find that grant ofits 214 Application serves the public interest, convenience, and necessity)

because of what 214 Applicant incorrectly characterizes as "fatal procedural errors" with respect to Petitioners‘ pleading. What the Commission must decide is whether a grant of 214 Authority to 214 Applicant would serve the public interest, convenience, and necessity. Nothing that 214 Applicant says in its Opposition to Petition to Deny ("Opposition") about procedure is relevant to that determination; rather, its Opposition attempts to divert the Commission‘s focus from the issue at hand — whether a grant of 214 authority would serve the public interest, convenience, and necessity.

TABLE OF CONTENTS I. 214 Applicant Failed to Address the Merits of the PetitioOn to DeMY..................cccel e e lel}}. 1 A. 214 Applicant Failed to Address Deficiencies in the AppHCAtONM....................ccceeeeeee k00 }0}. 2 B. 214 Applicant Did Not Deny that It Violated Commission Rules By Operating as an International Telecommunications Carrier WithOUut AUtHOTiITY.....2.02.022002202002002eserer ces es e es se sresreke. 3 C. 214 Applicant Failed to Rebut Lack of Character QU@IifiCAtiONS.....................cclelel .e k. 4 II. None of 214 Applicant‘s Procedural ArgUMENtS HAVe MeFit ...................0.sceerervevrrerererereeeee}s 5 A. Petitioners Have "Standing" to Oppose the 214 ApPpIiCAtION ......................ccesererrererereececks. 7 B. Affi0@Vit WAS NOt N@CESSATY ...............0202000000eeeerrvevrvererrere se rererreerrrrrresrrree snn en es eser es ererreea en es 8 C. Service Was Proper and 214 Applicant Was Not Harmed By Service............................. 10 D. The Petition to Deny Addresses Concerns That Are Clearly Within the Commission‘s Jurisdiction and Relevant to 214 Applicant‘s Qualifications to Hold 214 Authorization ........ 11 III. CONACIUSIOM 1.22222220000000200srerrereerere se se eeereeree en en e ree nsb e e e en e enb en en en eb es nes es en esn esn en esn n en esn en n e en se ns n esn ea es 12

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In re Application of ) ) Tata Telecom INC ) File No. ITC—214—20100907—00357 ) To Provide International Facilities—Based ) and Resold Services to All International ) Points ) To: Chief, International Bureau REPLY TO OPPOSITION Tata Communications (America) Inc. and its sister company, Tata Communications Services (America) Inc. ("Petitioners"), hereby reply to the "Tata Telecom INC" ("214 Applicant or "Tata Telecom INC") opposition‘ to their Petition to Deny" filed in the above—captioned matter. Petitioners demonstrate herein that 214 Applicant failed to refute the critical substantive points in the Petition. Petitioners also demonstrate that all procedural requirements for the Petition have been satisfied. Accordingly, the Commission should grant the Petition and deny 214 Applicant‘s Section 214 Application. I. 214 Applicant Failed to Address the Merits of the Petition to Deny Petitioners set out numerous substantive reasons for denial of 214 Applicant‘s Application: 214 Applicant lacks the character qualifications for grant of its Application; the Application is deficient because it is incomplete and inaccurate; and, according to its own assertions, 214 Applicant is in violation of Commission rules for providing international 1 In re Application of Tata Telecom INC to Provide International Facilities—Based and Resold Services to All International Points, Opposition to Petition to Deny, File No. ITC—214—20100907—000357 (Oct. 5, 2010) ("Opposition"). 2 In re Application of Tata Telecom INC to Provide International Facilities—Based and Resold Services to All International Points, Petition to Deny, File No. ITC—214—20100907—000357 (Sept. 25, 2010) ("Petition").

telecommunications service without prior authority. 214 Applicant‘s Opposition fails to deny, refute, or, in some cases, even address evidence provided on these points. It instead attempts to direct attention away from the public interest issues raised in the Petition. For the reasons described in the Petition and in this Reply, there are compelling grounds for the Commission to find that grant of 214 Applicant‘s Application for Section 214 authorization would not serve the public interest, convenience, or necessity. A. 214 Applicant Failed to Address Deficiencies in the Application As described in the Petition, 214 Applicant failed to disclose its foreign carrier affiliates, failed to provide clear information about the citizenship of its owner, and failed to disclose even its legal name." Complete and accurate information is necessary* and required." 214 Applicant has still not addressed the deficiencies in its Section 214 Application. In its Opposition, 214 Applicant did not enlighten the Commission with regard to its foreign affiliates or the citizenship of its ownership. 214 Applicant did not in any way explain why the Commission should consider its Application to be complete and accurate, nor did it clearly commit to amending its Application. Rather, in a footnote in its Response, 214 Applicant says its Application will be "amended as necessary." To date it has failed to make any such amendment.° 3 See Petition at p. 7—9. 4 Such information is not only relevant to the Commission‘s analysis about whether grant of the Application is in the public interest, it is essential. Without such information, the Commission cannot thoroughly analyze market power or effects on competition, national security, law enforcement, foreign policy, and trade policy considerations which are crucial to the Commission‘s public interest analysis. See In the Matter of 1998 Biennial Regulatory Review — Review ofInternational Common Carrier Regulations, Report and Order, 14 FCC Red 4909, [ 15 (1999). 5 See 47 C.F.R. 63.18. See also, Petition at p. 7, 11. 6 Petitioners disagree with 214 Applicant‘s characterization of the deficiencies as "ministerial errors." See Opposition at n.1 and n.31.

B. 214 Applicant Did Not Deny that It Violated Commission Rules By Operating as an International Telecommunications Carrier Without Authority 214 Applicant failed to deny its many prior statements that it has allegedly been providing international telecommunications services in the U.S. for years (without authority and in disregard of Commission rules). Its Opposition failed to address, even tangentially, all but one of the Petition‘s Exhibits that were provided as evidence. Petitioners provided multiple examples of statements made by 214 Applicant regarding its stated provision of international telecommunications services in the United States. These examples include 214 Applicant‘s own statements in: (1) 214 Applicant‘s response submitted in a World Intellectual Property Organization ("WIPO®") proceeding (Exhibit 3 of the Petition), (2) 214 Applicant‘s own complaint filed in a U.S. federal court (Exhibit 4 of the Petition), and (3) 214 Applicant‘s response to interrogatories in the same federal court proceeding (Exhibit 5 of the Petition), as well as its own commercial documents such as (4) 214 Applicant‘s invoices to U.S. customers for calling cards (Exhibit 6 of the Petition), (5) 214 Applicant‘s calling cards for international calls from the U.S. (Exhibit 7 of the Petition), and (6) 214 Applicant‘s web sites promoting international telecommunications services in the United States (Exhibit 8 of the Petition).‘ In the Opposition, the only mention by 214 Applicant of any of this evidence comes at Page 10 — there, 214 Applicant alleges that its response to interrogatories in the federal court case (Exhibit 5 of the Petition) were "unsigned and unverified."* Thus, they claim, their responses are "of no value." 214 Applicant‘s argument of course ignores that the interrogatory 7 See Petition at p. 5—7. 8 See Opposition at p. 10. ° Again, rather than directly state the truth or falsity of facts, or discuss matters actually at issue, 214 Applicant reverts to a discussion of procedure. Here, it alleges a procedural error by itself, and argues that its own procedural error in another proceeding is a basis for the Commission to ignore statements that it made therein.

responses were signed by their counsel — their agent in the federal proceedings, who as such was subject to Rule 11 and professional responsibility standards, requiring truthful and accurate responses. Moreover, 214 Applicant‘s interrogatory response No. 19 states that Manmohan Singh Thamber (214 Applicant‘s owner), and 214 Applicant‘s personnel, Ranjit Singh Masuta, Jeetender Singh Pabla, Shasheill Kumar, and Lakhbir Singh all contributed to the interrogatory answers. Applicant cannot simply ignore or disavow these representations. Knowing this, 214 Applicant is careful to refrain from stating in its Opposition that all, or any, of the statements contained therein are untrue. C. 214 Applicant Failed to Rebut Lack of Character Qualifications Petitioners provided evidence that a World Intellectual Property Organization ("WIPO") Administrative Panel (which ordered 214 Applicant to turn over the domain name "tata— telecom.com" to Tata Sons), believed that 214 Applicant "Tata Telecom INC" chose to use the name "Tata" with the intent of deceiving consumers into believing that it had some connection to the Tata family of companies to which Petitioners belong.‘" 214 Applicant states that the WIPO decision (which found, after extensive briefing and evidentiary submissions, that 214 Applicant intended to deceive consumers) is not entitled to "deference.""‘ With regard to "deference," we are not litigating a trademark dispute before the Commission. The issue before the Commission is whether 214 Applicant possesses the requisite character qualifications such that the public 10 Tata Sons Limited v. TATA Telecom Inc/Tata—telecom.com, Mr. Singh, WIPO Arbitration and Mediation Center, Case No. D2009—0671 at 10 (Sep. 1, 2009) {ordering Applicant to turn over the domain name "tata— telecom.com" to Tata Sons) ("WIPO Arbitration Decision‘"). Petition at Exhibit 2. N We note that this is yet another procedural argument by 214 Applicant. 214 Applicant further states inter alia that Petitioners "portray the WIPO decision as precedential" and "neglect to disclose that the WIPO Decision is currently subject to a Section 15 U.S.C. Section 1114(2)(D)(v) challenge" and "Petitioners‘ allegation that Tata Telecom frivolously initiated a legal proceeding against Tata Sons...." Opposition at p. 9—10. On the contrary, page 5 and footnote 11 of Petitioners‘ Petition clearly indicate that 214 Applicant appealed the WIPO decision to the District Court. Additionally, Petitioners‘ Petition made no frivolity claim. Further, the Petition is not a "strike application" "seeking to embroil the Commission in private litigation," as 214 Applicant claims. Opposition at p. 3.

interest would be served by grant ofits 214 Application. A finding of a deliberate attempt to deceive consumers, made by a respected international tribunal after both parties had actively participated in the proceedings, is clearly a relevant fact to the Commission‘s determination of what is in public interest. 214 Applicant‘s stated provision of international telecommunications services in the U.S. without authority, as described in Section I.B. above, and its failure to disclose accurate and complete information to the Commission in its Application, all have a bearing on character qualifications and the public interest."" 214 Applicant fails to respond to the substance of any of these character deficiencies. For these reasons, its Application should be denied. II. None of 214 Applicant‘s Procedural Arguments Have Merit Petitioners have met all applicable statutory and regulatory requirements regarding their Petition. Petitioners have raised a number of substantive concerns about the 214 Applicant‘s character and apparent deficiencies in the Application that are critical to the Commission‘s consideration of the 214 Application. The evidence presented in the Petition to Deny is essential to the Commission having a complete record on which to determine whether grant would serve the public interest. Rather than address these merits, 214 Applicant claims that the Commission should ignore the evidence because of procedural claims, all of which miss the mark. Petitioner addresses each of 214 Applicant‘s procedural claims separately, below. However, as an initial matter, 214 Applicant relies heavily on pleading standards set forth in Title III of the Communications Act of 1934, as amended, and the Commission‘s rules governing 12 See Policy Regarding Character Qualifications in Broadcast Licensing; Amendment ofRules ofBroadcast Practice and Procedure Relating to Written Responses to Commission Inquiries and the Making of Misrepresentations to the Commission by Permittees and Licenses, Report, Order and Policy Statement, 102 FCC 2d 1179, 4 56 (1986); Advanced Business Communications Ins.; In the Domestic Public Cellular Telecommunications Radio Servicefor the Waco, Texas MSA, Order on Reconsideration, 2 FCC Red 580, « 7 (1987).See also, Petition at p. 3, 10—11.

wireless proceedings that simply do not apply here." The Commission‘s 214 rules and the Commission‘s Public Notice in this proceeding govern here, not wireless pleading rules, and the rules that govern here do not appear to set forth such explicit requirements.‘"* 214 Applicant never even attempts to explain why the Commission should rely on the wireless pleading rules that it cites rather than rules and policies specifically applicable to international Section 214 proceedings. In any event, the Commission makes clear that one need not voice their concerns in a formal Petition to Deny to be considered on the record. For example, the Section 214 Public Notice indicates that parties may file mere "comments" to persuade the Commission that a 214 Application should be deemed ineligible for streamlined processing.‘" Even the Commission‘s more explicit wireless rules, on which 214 Applicant relies so heavily, recognize the Commission‘s discretion to consider pleadings filed as "informal objections" to the extent that standing or any other formal pleading requirements have not been observed.‘" Therefore, in the event that the Commission determines that it does not wish to treat Petitioners submission as a formal "Petition to Deny," the Commission should nevertheless consider Petitioners submissions as part of its decision—making process. 13 One of 214 Applicant‘s primary procedural objections cites 47 C.F.R. Section 1.939, which is part of Subpart F of the Commission‘s Rules, which subpart is entitled "Wireless Radio Services Applications and Proceedings." 214 Applicant also cites "Section 1.309(d)(2)," without more, in a couple of places (Opposition, Summary, unnumbered page 1; page 7). Neither 47 C.F.R. 1.309(d)(2), or 47 U.S C. 1.309(d)(2) exist. 214 Applicant cites to 47 U.S.C. section 309(d)(2), which, too, is part of a statutory subsection relating to radio; it has no applicability here. 214 Applicant also cites 47 U.S.C. Section 302(d)(2), which, if it ever had any applicability, does not now, as it has been repealed. 14 See 47 C.F.R. § 63.09 et. al; Public Notice, Streamlined International Applications Acceptedfor Filing, Section 214 Applications (47 C.F.R. §63.18); Section 310(B)(4) Requests, Report No. TEL—01456S (rel. Sept. 17, 2010). 15 Public Notice, Streamlined International Applications Acceptedfor Filing, Section 214 Applications (47 C.F.R. §63.18); Section 310(B)(4) Requests, Report No. TEL—O1456S (rel. Sept. 17, 2010). 16 See 47 C.F.R. § 1.41; Nextel License Holdings 4, Inc., Nextel WIP License Corp., Order, 17 FCC Red 7028, 4 11 (2002).

A. Petitioners Have "Standing" to Oppose the 214 Application As noted above, 214 Applicant relies on irrelevant wireless statutes and regulations to question whether Petitioners‘ are "real parties in interest" with standing to file the Petition to Deny. Without conceding that the wireless rules 214 Applicant cites govern this proceeding, Petitioners nevertheless can show they are "real parties in interest" under those (wireless) precedents. As noted in the Petition to Deny, Petitioners are longstanding international Section 214 holders with substantial international telecommunications services operations around the world."‘ As longstanding international Section 214 holders that provide a wide portfolio of international telecommunications services to U.S. customers, Petitioners will compete in the international telecommunications services market with 214 Applicant."* Longstanding precedent establishes that competitors have standing to participate in Commission proceedings related to a competitor‘s authority to provide service.‘" A party "**does not need to demonstrate that it will suffer a direct injury from a grant‘ of an application where standing is based on status as a competitor in the same market.""" Petitioners have standing in this proceeding because 214 Applicant séeks international Section 214 authority to become a competitor of Petitioners. While Petitioners do not need to show more, Petitioners will, in fact, suffer direct injury from a grant of 17 See Petition at p. 2. 18 214 Applicant disingenuously claims that Petitioners were required to more specifically show that "Tata Telecom‘s services are akin to theirs" because "international resale has many forms." Opposition atn.19. Of course, 214 Applicant included no indication of their proposed services in their Section 214 Application or their Opposition. To the extent a more specific demonstration of competition would inform the public record, Petitioners demonstrated in the Petition to Deny that 214 Applicant has represented itself as offering international toll free number and calling card services in the United States, both of which services Petitioners also provide in the United States. See Petition at p. 6 and notes 15 and 16. 19 FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940). 20 Waterman Broadcasting Corporation ofFlorida, 17 FCC Red 15742, n. 2 (2002) (rejecting applicant‘s assertion that competitor filing a petition to deny had failed to demonstrate direct injury) (citing American Mobilephone, Inc., 10 FCC Red 12297, 12298, 8 (1997)).

214 Applicant‘s Application as a result of 214 Applicant choosing the name "Tata." While 214 Applicant disputes the finding of the WIPO arbitration panel that 214 Applicant chose the name Tata Telecom with an intent to deceive customers and cause customer confusion, Petitioners respectfully submit that it will cause confusion among U.S. consumers."‘ Such potential confusion between 214 Applicant and Petitioners poses risks to Petitioners‘ reputation as an established and respected telecommunications company in the United States and throughout the world. B. Affidavit Was Not Necessary Commission rules did not require Petitioners to include an affidavit with their Petition to Deny. This is because the Petition to Deny focuses on Application deficiencies that are clear on the face of the 214 Application and on 214 Applicant‘s own written materials and the Decision of the WIPO Arbitration Panel, which Petitioners attached to the Petition to Deny. Specifically, Petitioners did not need to provide an affidavit to point out the deficiencies in 214 Applicant‘s Application. The "four corners" of the 214 Applicant‘s Application is sufficient evidence to demonstrate the deficiencies. As the Commission has held, alleged deficiencies in an application do not depend on any external evidence and an affidavit is therefore not necessary."" Additionally, Petitioners did not need to provide an affidavit as support for statements and documents made by 214 Applicant. The vast majority of Petitioners‘ arguments related to 214 Applicant‘s character were drawn from Petitioner‘s own web sites, pleadings and exhibits and the decision of the WIPO Arbitration panel. Petitioners did not make any claims that were 21 See Petition at p. 3—4. 22 Verde Systems, LLC and Environmental LLC For Modification ofLicense for Automated maritime Telecommunications System Station WQCP814, Order, 25 FCC Red 9166, fn. 21 (2010).

not supported by documents attached to the pleading or that the Commission could not otherwise take official notice. The Commission has determined it can take official notice of facts in the public record, such as pleadings and documents submitted to U.S. courts,"" written descriptions of operations,"" and corporate and financial documents."" Since every document Petitioners attached as support for the Petition is in the public record, the Commission can and should take official notice of the documents. Given the foregoing, the Petitioners did not need to provide an affidavit to point out the deficiencies in the 214 Applicant‘s Application or to support statements and documents that are in the public record and of which the Commission can take official notice. Even if the Commission determines that it cannot take official notice of the public record documents that Petitioners attached to the Petition or that an affidavit is necessary to support any other fact in the Petition, Commission precedent does not support dismissal of the Petition."" 23 See, e.g., California Broadcasting Corporation; Channel Islands Television Corporation; For a Construction Permit, Initial Decision of Administrative Law Judge Byron E. Harrison, 98 FCC 2d 1003, [ 29 (1984) (taking official notice of U.S. Bankruptcy Court pleading and order); Real Life Educations Foundation ofBaton Rouge, Inc.; Jimmy Swaggart Ministries, For Construction Permitfor a New Noncommercial Educational Broadcast Station, Channel 203C2, in Baton Rouge, Louisiana, Memorandum Opinion and Order, 8 FCC Red 2675, € 4—5 (1993) (taking official notice ofjudgments and tax liens). 24 See, e.g., The Offshore Telephone Company; For a construction permit to establish a cellular system operating onfrequency block B in the Domestic Public Cellular Radio Telecommunications Servicefor the Houma— Thibodaux, Louisiana Metropolitan Statistical Area, Memorandum Opinion and Order, 2 FCC Red 4575, n.3 (Mobile Services Division 1987) (taking official notice of written descriptions of operations and facilities). 25 See, eg., Westland CATYV, Ltd., Houston, Texas, Petition for Special Relief, 50 RR 2d 700, 7 (Cable TV Bureau 1981) (taking official notice of partnership agreement and limited partnership certificate issued by the State of Texas); Palm Beach Cable Television Co., Memorandum Opinion and Order, 78 FCC 2d 1180, [ 5 (1980) (taking official notice of financial statements in the public record). 26 The cases cited by 214 Applicant as a basis to dismiss petitions to deny do not show that dismissal of the Petition would be appropriate here. Those cases involved dismissals of petitions for multiple reasons regardless of whether or not an affidavit was submitted. Opposition at p. 7. See, e.g., In the Matter ofApplication of Wireless Us, LLC, Assignor, Nextel of California, Inc., Assignee, for Consent to Assignment of851.1625 MHz from Station Wnxg805, 22 FCC Red. 8643 (2007) (finding that official notice could not be taken regarding an allegation that a license is marital property absent afinal courtjudgment and deferring the private dispute to a court); In the Matter ofApplication ofAm. Tower Corp. for Tower Registration with Envil. Assessment, 21 FCC Red 1680 (2006) (dismissing the petition as a result of multiple procedural deficiencies, including untimely filing and failing to file with the Commission Secretary); In the Matter of United States Cellular Corp. Constructed Tower Near Fries,

Out of an abundance of caution, Petitioners herein attach an affidavit that confirms that every statement made in the Petition and this Reply is true and accurate to the best of Petitioners‘ knowledge, information, and belief, and all attachments provided were as represented and described by Petitioners. To the extent the Commiséion determines that such affidavit was required, Commission precedent shows that inclusion of the attached affidavit cures any such deficiency, making 214 Applicant‘s claims moot.*‘ C. Service Was Proper and 214 Applicant Was Not Harmed By Service Petitioners filed their Petition as early as practicable to provide the Commission ample time to consider their Petition before the deadline for automatic grant pursuant to streamlined processing, and to allow 214 Applicant the possibility of submitting an opposition in advance of the Commission‘s decision."" Petitioners finalized and filed their Petition late on a Saturday, but paper service was not possible until Monday. By sending a paper copy on the first business day a paper copy could be sent following the electronic filing of the Petition, Petitioner timely served the 214 Applicant. *° As a courtesy, Petitioner also sent an electronic copy. Furthermore, Petitioner submitted its proof of service to the Commission as soon as service was completed and without prejudicing any party.3° Even if the service should be considered untimely, 214 Virginia, 24 FCC Red. 8729 (2009) (dismissing the petition for failing to provide specific evidence as well as an affidavit). 27 Telmex/Sprint Communications, L.L.C., Order, Authorization and Certificate, 12 FCC Red 17551, n. 12 (1997). 28 In one of many procedural complaints designed to obfuscate the actual issue in this matter — whether grant of Section 214 authority to 214 Applicant would serve the public interest — 214 Applicant complains in footnote 18 of its Opposition that Petitioners rushed to file its Petition too quickly after the September 17 Public Notice. 214 Applicant cites an inapplicable procedural rule for the proposition that a "petition to deny was not due until October 25th." A remarkable argument, as October 25th is a date over three weeks after its 214 Application would have already been granted under streamlinedprocessing. 22 See 47 C.F.R. § 1.47(d) (requiring documents to be served in paper form, even if the documents are electronically filed with the Commission). 30 47 C.E.R. § 1.47(g) (permitting submission of service at any time as long as it does not result in any material prejudice to a party). 10

Applicant was not harmed. 214 Applicant received a copy with sufficient time to file a timely opposition, and 214 Applicant suffered no prejudice as a result of the date of service."‘ Petitioner also properly served a copy of the Petition upon 214 Applicant."" Petitioner had no obligation to serve 214 Applicant‘s attorneys in its federal court litigation with Tata Sons Limited." 214 Applicant did not use any attorney to file its Application or identify any attorney in its Application (a fact that it uses to explain why its 214 Application may have included "errors")."" Nor had 214 Applicant‘s attorneys entered an appearance at the Commission, indicating that they would be representing 214 Applicants in prosecuting the 214 Application. Indeed, it seems it would have been highly improper for Petitioners to serve anyone not identified by 214 Applicant as its representative in this matter. D. The Petition to Deny Addresses Concerns That Are Clearly Within the Commission‘s Jurisdiction and Relevant to 214 Applicant‘s Qualifications to Hold 214 Authorization The Commission has jurisdiction to analyze an international Section 214 application and determine, based on all of the facts, whether to grant or deny an application."" The Commission also has jurisdiction to consider the Petition."" 31 In the Matter ofApplications to Assign Wireless Licensesfrom WorldCom, Inc. (Debtor—in—Possession) to Nextel Spectrum Acquisition Corp., Memorandum Opinion and Order, 19 FCC Red 6232, 18 (2004). Petitioners respectfully submit that it was unclear under the Commission‘s rules exactly when 214 Applicant‘s Opposition was due, considering Petitioners filed electronically over the weekend. Had 214 Applicant indicated its intention to file its Opposition 10 days from Monday, September 27, 2010, Petitioners would certainly have agreed. 32 See 47 C.F.R. § 1.47(d) (only requiring service upon an applicant‘s attorney when the applicant has an attorney of record in the a Commission proceeding). 33 Likewise, 214 Applicant had no obligation to serve Tata Sons Limited‘s federal court litigation attorney with its Opposition, despite the fact that 214 Applicant is aware of Tata Sons Limited‘s federal court litigation attorney. And, in fact, as shown by the Certificate of Service attached to its Opposition, 214 Applicant did not serve a copy of its Opposition on Tata Sons Limited‘s federal court litigation attorney. 34 Opposition at n. 1 and n. 31. 35 47 U.S.C. § 214; 47 C.F.R. § 63.12. 36 47 C.F.R. § 1.45 and § 63.20. 11

214 Applicant attempts to deflect the multiple regulatory and public interest issues raised in the Petition by arguing that the issues relate only to private litigation."‘ Petitioners are not attempting to litigate private claims before the Commission; rather, all matters it has raised — 214 Applicant‘s choosing the "Tata" name with the intent to deceive consumers; 214 Applicant‘s own assertions about unauthorized provision of international telecommunications service in the United States for years prior to filing the current Application; 214 Applicant‘s lack of candor in its 214 Application with regard to foreign affiliates, citizenship of its owner, and even its actual legal name — directly support a finding that grant of 214 Applicant‘s Application would be contrary to the public interest. III. Conclusion For the reasons set forth in the Petition and in this Reply, granting 214 Applicant‘s Section 214 Application would be contrary to the public interest. Accordingly, the Commission should grant Petitioners‘ request and deny 214 Applicant‘s Section 214 Application. Respectfully submitted, Tata Communications (America) Inc. Tata Communications Services (America) Inc. By: M/\U&Q@ 6M Rogena Harris Catherine Wang Jeffrey Marks Danielle Burt Tata Communications (America) Inc. Bingham McCutchen LLP Tata Communications Services (America) Inc. 2020 K Street, N.W. 2355 Dulles Corner Boulevard Washington, DC 20554 Suite 700 (202) 373—6000 Herndon, VA 20171 catherine.wang@bingham.com danielle.burt@bingham.com Their Attorneys October 13, 2010 See Opposition at p. 11. 12

AFFIDAVIT I, Jeffrey A. Marks, Senior Legal Counsel for Tata Communications (America) Inc. and Tata Communications Services (America) Inc., hereby state and affirm that I have read the Petition to Deny the application File No. ITC—214—20100907—00357 and the Reply to Opposition and that the facts stated therein are true to the best of my knowledge, information and belief. Dated: October 13, 2010

CERTIFICATE OF SERVICE I, Danielle Burt, certify that a copy of the foregoing Reply to Opposition by Tata Communications (America) Inc. and Tata Communications Services (America) Inc., as submitted in File Number ITC—214—20100907—00357, was served via U.S. mail and electronic mail this 13th day of October 2010, upon the following: Charles H. Helein Jacqueline R. Hankins Helein & Marashlian, LLC The CommLaw Group 1420 Spring Hill Road, Suite 205 McLean, Virginia 22102 Email: chh@commilawgroup.com jrh@commlawgroup.com fuudlh Bm


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Document Modified: 2019-04-22 09:34:34
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