2. Background
NetMoves is a Delaware corporation authorized to do business in California. In Decision (D.) 91-09-012, NetMoves was granted a certificate of public convenience and necessity (CPCN) to provide resold interexchange telecommunications services within California.2
Mail.com is a Delaware corporation authorized to do business in California. Mail.com provides various e-mail services to the public, none of which is regulated by the Commission. The stock of Mail.com is traded on the Nasdaq stock exchange.
On February 8, 2000, Mail.com acquired NetMoves.3 On February 10, 2000, NetMoves and Mail.com (collectively, "the Applicants") jointly filed A.00-02-014 for authority under § 854(a) for Mail.com to acquire NetMoves. Notice of A.00-02-014 appeared in the Commission's Daily Calendar on February 14, 2000. There were no protests or responses to the application. On February 11, 2000, NetMoves changed its name to Mail.com Business Messaging Services, Inc. (Mail.com BMS). For the sake of clarity, this decision will often refer to Mail.com BMS as "NetMoves," its name at the time A.00-02-014 was filed.
On March 17, 2000, assigned Administrative Law Judge (ALJ) Kenney issued a ruling that required the Applicants to amend A.00-02-014 to correct various deficiencies in the application. The amendment was filed on May 8, 2000. In their amendment, the Applicants requested, for the first time, retroactive, nunc pro tunc authority for Mail.com's acquisition of NetMoves.4 Notice of the amendment appeared in the Commission's Daily Calendar on May 22, 2000. There were no protests or responses to the amendment.
On May 17, 2000, the assigned ALJ instructed the Applicants by telephone to supplement A.00-02-014 with an amended certificate of qualification to transact business in California ("certificate") that reflected the current name for NetMoves.5 On October 20, 2000, the Applicants filed a supplement which contained evidence that NetMoves' certificate had been amended to reflect NetMoves' current name of "Mail.com Business Messaging Services, Inc."
On September 22, 2000, the assigned ALJ issued a ruling that required the Applicants to file a second amendment that contained the following information:
1. An explanation regarding why Mail.com acquired NetMoves without prior Commission authorization as required by § 854.
2. The steps the Applicants could take to remedy the apparent violation of § 854, such as unwinding the acquisition and seeking Commission approval for a new acquisition.
3. The amount of monetary penalty the Commission should levy in response to the violation of § 854 pursuant to the Commission's authority under § 2107 and the criteria set forth in D.98-12-075.
The second amendment was filed on October 4, 2000. Notice of the amendment appeared in the Commission's Daily Calendar on October 6, 2000. There were no protests or responses to the amendment.
2 When D.91-09-012 was issued, NetMoves was known as Digitran Corporation (Digitran). On February 28, 1996, Digitran changed its name to FaxSav Incorporated (FaxSav). On May 27, 1999, FaxSav changed its name to NetMoves. 3 The acquisition of NetMoves by Mail.com was effected by converting NetMoves common stock into Mail.com common stock. Following the conversion, the previous shareholders of NetMoves held less than 50% of the stock of Mail.com, resulting in the transfer of control of NetMoves from its previous shareholders to Mail.com. 4 The phrase "nunc pro tunc," meaning "now for then," refers to those acts which are allowed to be done at a later time "with the same effect as if regularly done." (Blacks Law Dictionary (4th Revised ed. (1968), p. 1218.) 5 Rules 16 and 35 of the Commission's Rules of Practice and Procedure (Rules) require that applications for authority to acquire control of a public utility to include, if applicable, a current copy of each applicant's certificate.
