3. Requested Authority

The Applicants request retroactive authority under § 854(a) for Mail.com to acquire NetMoves. The Applicants state that retroactive approval of the transaction would not be adverse to the public interest because the transaction does not affect (1) the rates, terms, or conditions of existing services provided to NetMoves' customers; or (2) the management, facilities, and operations currently employed by NetMoves to provide service. The Applicants also state that retroactive approval would serve the public interest, since the transaction strengthens NetMoves as a competitor by providing NetMoves with access to Mail.com's technical and financial resources.

The Applicants recognize that § 854(a) renders void any acquisition of a public utility that is consummated without prior Commission approval. Because Mail.com's acquisition of NetMoves was consummated without prior Commission approval, the Applicants ask the Commission to exempt the acquisition from § 854(a) pursuant to the Commission's authority under § 853(b). Section 853(b) states, in relevant part, as follows:

The commission may . . . exempt any public utility or class of public utility from [§ 854(a)] if it finds that the application thereof with respect to the public utility or class of public utility is not necessary in the public interest.

The Applicants argue that Mail.com's acquisition of NetMoves should be exempt from § 854(a) because (1) there were no protests to the Applicants' request for an exemption; and (2) it was the Commission's policy at the time A.00-02-014 was filed to retroactively authorize previously consummated acquisitions so that such transactions would not be void under § 854(a).

The Applicants acknowledge that the Commission recently provided notice in D.00-09-035 that it might not grant applications for retroactive authority in the future.⁶ The Applicants contend that the Commission's new policy should only apply to applications that were filed after the policy was announced.

Finally, the Applicants state that it is not practical to unwind the acquisition, since the transaction involves a publicly traded company whose shares have traded since the acquisition. The Applicants also contend that it is unfair for the Commission to fine the Applicants for their failure to obtain prior Commission approval for the acquisition as required by § 854(a), since the Commission has seldom imposed fines for violations of § 854(a).