5. Comments on Draft Decision
Pursuant to Rule 77.7, the draft decision was mailed to the parties on June 17, 2002. No one filed any comments to the draft decision.
1. The joint application of Ursus and LAE seeking nunc pro tunc approval of a transfer of control was filed with the Commission on July 3, 2000.
2. Ursus and LAE executed a merger agreement on June 6, 2000, which was consummated on June 13, 2000.
3. No protests or responses to the application were filed.
4. LAE was authorized by the California Secretary of State to transact business in California as of July 15, 1997.
5. In August 1997, LAE applied for a CPCN to provide inter- and intra-local access and transport area services in California as a NDIEC.
6. On September 29, 1997, LAE was granted a CPCN in D.97-09-133.
7. LAE's letter accepting the CPCN was filed by the Commission's Docket Office on October 20, 1998.
8. An ALJ ruling was issued on October 4, 2000 directing the applicants to provide additional information.
9. The applicants filed a response to the ALJ ruling on November 3, 2000, which stated in part that LAE never provided services under the CPCN or otherwise transacted business in California.
10. The response states that if the Commission is unwilling to grant the application, the applicants propose to file a notice to withdraw their application, and to cancel LAE's unused CPCN.
11. The ALJ's draft decision was mailed to the parties on June 17, 2002.
12. The merger of LAE into LAEAC occurred before the application was filed with the Commission.
13. The applicants' November 3, 2000 response states that LAE provides limited international services, but in the majority of states in which it has obtained resale authority, including California, LAE does not currently provide services and never has provided services.
14. The applicants' November 3, 2000 response also states that Ursus' United States operations are limited to the provisioning of services between the United States and international points, and that it does not provide United States interstate or intrastate services.
15. LAE's authority to transact business in California was forfeited on June 1, 2000, and LAE never sought to reinstate its corporate status with the Secretary of State.
16. The applicants' response states that LAE did not operate in California following the lapse of its authority to transact business, and that it did not derive any revenues in California during that period.
17. The Public Programs Branch has determined that LAE never reported or remitted any telecommunication-related surcharges to the Commission.
18. In Resolution T-16657, the CPCN of LAE was revoked, and its Utility Identification Number was cancelled.
1. Section 854 applies to this transaction if the public utility being acquired or merged is organized and doing business in this state.
2. Based upon the representations contained in the applicants' response to the ALJ ruling, it appears that LAE did not transact any business, or generate any revenues, in California from the time that LAE was certificated by the Commission to be a NDIEC, and that no intrastate telecommunication activities appear to have taken place within California.
3. We cannot conclude that LAE was doing business in this state as contemplated in Public Utilities Code § 854.
4. Section 854 does not apply to the merger between LAE and Ursus because LAE was not doing business in the state.
5. The application should be dismissed.
6. The request of the applicants that they be allowed to withdraw the application and to cancel the CPCN should be treated as a request to revoke LAE's CPCN.
7. The revocation of LAE's CPCN in Resolution T-16657, and the cancellation of its Utility Identification Number, U-5878-C, is affirmed.
IT IS ORDERED that:
1. The joint application of Ursus Telecom Corporation (Ursus) and Latin American Enterprises, Inc. (LAE) for the nunc pro tunc approval of the acquisition of control of LAE by Ursus' wholly owned subsidiary is dismissed.
2. The request of Ursus and LAE in their response to the Administrative Law Judge's ruling of October 4, 2000 that if the Commission is unwilling to grant the application, that the applicants be allowed to file a notice of withdrawal of their application, and to cancel LAE's certificate of public convenience and necessity (CPCN), shall be treated as a request to revoke LAE's CPCN.
3. The CPCN which authorized LAE to provide inter- and intra- local access and transport area services in California as a non-dominant interexchange carrier, which was granted by the Commission in Decision 97-09-133, is revoked as a result of the adoption of Resolution T-16657 by the Commission on June 27, 2002, and the Utility Identification Number of U-5878-C is cancelled and shall not be reissued.
4. This proceeding is closed.
This order is effective today.
Dated July 17, 2002, at San Francisco, California.
LORETTA M. LYNCH
President
HENRY M. DUQUE
CARL W. WOOD
GEOFFREY F. BROWN
MICHAEL R. PEEVEY
Commissioners
