Puerto Rico Telephone Co., Inc. v. WorldNet Telecommunications, Inc.
Filing
51
OPINION AND ORDER. PRTC's motion to vacate, Docket No. 1, is DENIED. WorldNet's cross-motion to confirm, Docket No. 30, is GRANTED. WorldNet's cross-motion to dismiss, Docket No. 29, is DEEMED MOOT. PRTC's motion to strike, Docket No. 32, is DEEMED MOOT. WorldNet's motion for leave to file, Docket No. 34, is GRANTED. WorldNet's motion to expedite, Docket No. 49, is DEEMED MOOT. WorldNet has thirty days to prove its reasonable attorneys' fees; PRTC will then have fifteen days to respond. These deadlines will not be extended.Signed by US Magistrate Judge Silvia Carreno-Coll on 9/15/2014.(NBB)
IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO
P.R. TEL. CO., INC.,
Plaintiff,
v.
CIV. NO.: 14-1062(SCC)
WORLDNET TELECOMM.,
INC.,
Defendant.
OPINION AND ORDER
Plaintiff Puerto Rico Telephone Co. (“PRTC”) seeks to
vacate a final award issued after binding arbitration in favor of
Defendant WorldNet Telecommunications, Inc. Docket No. 1.
WorldNet opposes PRTC’s motion to vacate, seeks dismissal of
this case, and requests confirmation of the award. Docket Nos.
29–30. After considering all of the parties’ arguments, I deny
PRTC’s motion and grant one of WorldNet’s cross-motions,
and I confirm the arbitrator’s award.
PRTC v. WORLDNET
Page 2
I. Background
Though this case’s procedural history is complex, the basic
facts giving rise to the present dispute can be summarized
quickly.
Under the Telecommunications Act of 1996, incumbent
local exchange carriers (“ILECs”), like PRTC, must allow
competing local exchange carriers (“CLECs”), like WorldNet,
to use their networks for a reasonable price. See 47 U.S.C. § 251.
To this end, the parties entered into an interconnection
agreement in 2010 (“the 2010 ICA”). The 2010 ICA was the
result of bargaining between the parties and, where the parties
could not agree, arbitration by the Puerto Rico Telecommunications Regulatory Board (“the Board”). The Board furthermore
approved the full 2010 ICA. The 2010 ICA contains an expedited dispute resolution provision providing that when the
parties have a dispute under the 2010 ICA, either party may
seek expedited resolution by the American Arbitration
Association.
At some point, a disagreement arose between WorldNet
and PRTC over the proper pricing of certain facilities leased by
WorldNet from PRTC (“the Disputed Facilities”). When the
parties could not resolve the disagreement themselves,
PRTC v. WORLDNET
Page 3
WorldNet filed, on May 9, 2012, a demand for arbitration.
PRTC tried to enjoin the arbitration in Commonwealth court,
but it ultimately lost that fight.1 It then objected, within the
arbitration, to the arbitrator’s jurisdiction, and it lost that
argument as well.
Arbitration finally began on June 6, 2013, more than a year
after the demand for “expedited” resolution had been filed.
After briefing and two days of hearings, the arbitrator released
his Final Award on October 14, 2013. The Final Award found
in favor of WorldNet in all respects. The arbitrator subsequently rejected PRTC’s motion to modify the award. PRTC
filed its motion to vacate the Final Award on January 24, 2014,
92 days after the Final Award.
II.
Initial Matters
Before discussing the merits of the motion to vacate, I will
discuss—and reject—some preliminary objections that WorldNet has raised to PRTC’s motion.
1.
The Court of First Instance granted an injunction, but it was eventually
reversed by the Court of Appeals. PRTC unsuccessfully sought review
of the Court of Appeals’ order.
PRTC v. WORLDNET
Page 4
A. PRTC’s motion is not untimely.
The Federal Arbitration Act (“FAA”) requires that a motion
to vacate be “served upon the adverse party or his attorney
within three months after the award is filed or delivered.” 9
U.S.C. § 12. The statute further provides that where the
“adverse party is a resident of the district within which the
award was made, such service shall be made” as if one were
serving a motion. Id. But if the party is not a resident of that
forum, the FAA requires service be made as if one were
serving process. Id. Thus, what constitutes “service” under the
FAA varies depending on the residency of the party to be
served: where the party is a resident, the motion may be served
as a motion; where the party is a non-resident, it must be
served like a complaint. See, e.g., Technologists, Inc. v. MIR’s
Ltd., 725 F. Supp. 2d 120, 125 (D.D.C. 2010) (recognizing that
§ 12 “creates separate service requirements for parties who
reside in the district and those who reside elsewhere”); cf.
Escobar v. Shearson Lehman Hutton, Inc., 762 F. Supp. 461, 463
(D.P.R. 1991) (holding that where adverse party was a resident
of Puerto Rico, § 12 was satisfied by serving that party through
the mail).
In support of its argument, WorldNet cites three cases,
PRTC v. WORLDNET
Page 5
none of which is clearly on point. See Docket No. 20, at 16 n.24.
To be sure, each of these cases dismisses motions to vacate
arbitration awards on the grounds that the movant failed to
timely serve the adverse party with a summons. See Grosser v.
Merril Lynch, Pierce, Fenner & Smith Inc., Civ. No. 07-672, 2007
WL 4365385, at *4 (N.D. Ill. Dec. 13, 2007); Jason v. Halliburton
Co., Civ. No. 02-1593, 2002 WL 31319945, at *3 (E.D. La. Oct. 15,
2002); Carmel v. Circuit City Stores, Inc., Civ. No. 99-240, 2000
WL 1201891, at *3 (E.D. Pa. Aug. 22, 2000). What each lacks,
however, is any indication that the adverse party was a
resident of the forum state. Without that information, there is
no reason to think that the courts were applying the rule that
WorldNet asks to be applied here.2
2.
Notably, PRTC cites several cases that reject the rule WorldNet
advocates. See, e.g., Day & Zimmerman, Inc. v. SOC-SMG, Inc., Civ. No.
11-6008, 2012 WL 5232180, at *4 (E.D. Pa. Oct. 22, 2012) (permitting
service of non-resident by email, where parties had regularly
communicated by email during the arbitration proceedings);
Scandanavian Reinsurance Co. v. St. Paul Fire & Marine Ins. Co., 732 F.
Supp. 2d 293, 305 (S.D.N.Y. 2010) (holding that motion to vacate was
timely, despite failure to serve a summons on non-resident party,
because the parties had consented to personal jurisdiction), overruled on
other grounds, 668 F.3d 60 (2d Cir. 2012); Silicon Power Corp. v. Gen. Elec.
Controls, Inc., Civ. No. 08-4331, 2009 WL 1971390, at *3–4 (E.D. Pa. July
7, 2009) (holding that resident could be served pursuant to rules for
service of motion); The Home Ins. Co. v. RHA/Pa. Nursing Homes, Inc.,
PRTC v. WORLDNET
Page 6
WorldNet does not dispute that it is a resident of Puerto
Rico, and the Final Award was made in Puerto Rico, see Docket
No. 3-2, at 24. Of course, I am sitting in the United States
District Court for the District of Puerto Rico. The FAA is
exceedingly clear about how WorldNet was to be served under
such circumstances, and that service was timely accomplished.
WorldNet has advanced no compelling reason why more is
required than the statute prescribes, and so WorldNet’s
timeliness argument is rejected.
B. PRTC has not waived its objections to the arbitrator’s
jurisdiction.
WorldNet argues that PRTC has waived its right to object
to the arbitrator’s jurisdiction because it “has spent the last two
years challenging (unsuccessfully) the jurisdiction of the
arbitrator in this case at every level of the Puerto Rico courts.”
Docket No. 20, at 19. The facts, briefly, are these. After the
arbitrator released the Final Award, PRTC sought to enjoin
that award in the Court of First Instance. PRTC made various
arguments to that court, including the arguments that it
repeats here: that the FCC and the Board have exclusive or
113 F. Supp. 2d 633, 635 n.10 (S.D.N.Y. 2000) (holding that the FAA
does not require a summons).
PRTC v. WORLDNET
Page 7
primary jurisdiction over this dispute, so the arbitrator was
without jurisdiction to act. The Court of First Instance granted
PRTC’s injunction request, but it did not do so on primary/exclusive jurisdiction grounds. Instead, it held that under
the language of the 2010 ICA, the parties had not agreed to
arbitrate pricing disputes. See Docket No. 39-2, at 19–20.
When WorldNet appealed, PRTC did not persist in its
jurisdictional objections before the court of appeals. According
to WorldNet, this means that PRTC abandoned those objections and is “collaterally estopped” from making those
arguments to this Court. Docket No. 20, at 19. But WorldNet’s
arguments misunderstand the law of collateral estoppel, which
requires that the issue to estopped have been “actually litigated” and “determined by a valid and binding final judgment.” Ramallo Bros. Printing, Inc. v. El Dia, Inc., 490 F.3d 86, 90
(1st Cir. 2007). Here, of course, the jurisdictional objections
were not determined by either of the Commonwealth courts.
Accordingly, there is no collateral estoppel. Neither has PRTC
abandoned these arguments, as they were not properly before
the court of appeals; rather, because the trial court decided the
matter on other grounds, the issues were narrowed on appeal.
PRTC properly restricted its arguments on appeal to scope of
PRTC v. WORLDNET
Page 8
the trial court’s opinion.
PRTC has not abandoned its arguments, and it timely
served WorldNet with the motion to vacate. As such, I consider the merits of the parties’ motions below.
III.
PRTC’s Motion to Vacate
PRTC’s motion to vacate focuses principally on the arbitrator’s supposed lack of jurisdiction. In effect, PRTC argues that
the questions posed to the arbitrator were of the sort that were
in the exclusive or primary jurisdiction of the FCC and the
Board, and so they could not properly be presented for
arbitration. In the alternative, PRTC makes several less
expansive arguments against the arbitration award. Below, I
discuss each in turn.
A. Background
Before delving into the merits, it is useful to give some brief
background on the relationship between WorldNet and PRTC,
as well as the dispute that brought them to arbitration in the
first place. The 2010 ICA defines the terms and rates by which
WorldNet may lease facilities from PRTC. Simplified, the ICA
provides that these facilities will be leased under two regimes.
First is under a tariff framework, which exists outside of the
PRTC v. WORLDNET
Page 9
2010 ICA.3 Second is under the 2010 ICA itself, which, pursuant
to the Telecommunications Act, provides special pricing
(known as TELRIC) for interconnection and unbundled
network elements (“UNEs”). The dispute between the parties
concerns whether certain facilities are covered by the first or
second of these regimes.
The Disputed Facilities are “DS3 tie cables,” which are
“relatively short, physical length[s] of coaxial cable that
connect[] two pieces equipment.” Docket No. 3-2, at 3–4. These
cables are located within PRTC buildings called “central
offices” and connect port-of-termination (“POT”) bays to
Digital Cross Connect (“DCC”) ports. Id. at 4. According to
WorldNet, the Dispute Facilities are UNEs, and so they are to
be priced under the 2010 ICA; according to PRTC, they are
“entrance facilities” priced according to the tariff.4 See id.
3.
PRTC calls the ICA pricing regime “a narrow exception to the tariff
regime.” Docket No. 4, at 4. This characterization is belied by the 2010
ICA itself, which makes TELRIC pricing the default “unless otherwise
specified.” Docket No. 3-2, at 17.
4.
The difference in price between these two regimes is enormous. If the
Disputed Facilities were UNEs, WorldNet would pay just $1.31 per
month for the cables and $48.10 per month for the DCC ports. If they
were entrance facilities, PRTC would be entitled to $334.89 per month.
See Docket No. 3-2, at 4.
PRTC v. WORLDNET
Page 10
The arbitrator found in favor of WorldNet, and its analysis
was extraordinarily straightforward. First, he noted that
Section 1.1 of the Pricing Attachment to the 2010 ICA “defines
the Unbundled Dedicated Transport UNE” as “comprising
three pieces, including a ‘Dedicated Transport Port.’” Id. at
17–18. He then noted that Section 1.1.3 of the same Attachment
defined “Dedicated Transport Port” as “(1) the DCC Port at
each end of the Unbundled Dedicated Transport, and (2) the tie
cables between the DCC Port and the POT Bay.” Id. at 18. Thus,
the 2010 ICA’s text established that the Disputed Facilities—“i.e., the tie cables between the POT bay and the DCC
port and the DCC port itself”—were “part of the Unbundled
Dedicated Transport UNE.” Id. The 2010 ICA therefore
provided that the Disputed Facilities were to be priced at
TELRIC rates. Id.5
The basis for arbitrating the billing conflict was § 29.1.4 of
the 2010 ICA, which provides for expedited dispute resolution.
The provision also provides that the arbitrator would decide
questions of arbitrability. The arbitration clause applies
5.
The arbitrator went on to explain why PRTC’s argument—that the
Disputed Facilities were governed by the tariff—was textually wrong.
See Docket No. 3-2, at 18–20.
PRTC v. WORLDNET
Page 11
generally to “matters arising under” the 2010 ICA. These
provisions were agreed to by the parties and approved by the
Board.
B. The Law of Primary Jurisdiction
PRTC argues that the arbitrator’s decision violated the
primary jurisdiction doctrine and is therefore void. That
doctrine was developed to ensure “consistent and coherent
policy” as courts interacted with administrative agencies. Port
of Boston Marine Terminal Assoc. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 68 (1970). The doctrine applies “to claims
properly cognizable in court that contain some issue within the
special competence of an administrative agency.” Reiter v.
Cooper, 507 U.S. 258, 268 (1993). In such circumstances, the
doctrine “requires the court to enable a ‘referral’ to the agency,
staying further proceedings so as to give the parties reasonable
opportunity to seek an administrative ruling.” Id. The doctrine
thus seeks “to avoid the possibility that a court’s ruling might
disturb or disrupt the regulatory regime of the agency in
question.” Am. Auto. Assoc. v. Mass. Dep’t of Envtl. Prot., 163
F.3d 74, 81 (1st Cir. 1998). It likewise recognizes a “goal of
national uniformity in the interpretation and application of a
federal regulatory regime,” which “is furthered by permitting
PRTC v. WORLDNET
Page 12
the agency that has primary jurisdiction over the matter in
question to have a first look at the problem.” Id. Application of
the primary jurisdiction doctrine is most appropriate where the
matter to be decided is at the heart of the agency’s competency
or concerns intricate or technical facts requiring agency
expertise. Id. (citing Massachusetts v. Blackstone Valley Elec. Co.,
67 F.3d 981, 992 (1st Cir. 1995)). Courts have recognized the
doctrine as being applicable to arbitral forums in the same way
as it would apply to courts. See, e.g., A/S Ivarans Rederi v. United
States, 895 F.2d 1441, 1445 (D.C. Cir. 1990) (“Private regulated
parties cannot agree to waive the subject matter jurisdiction of
the agency charged with the statutory responsibility to insure
that parties implement agreements as approved by and filed
with that agency. And just as assuredly, private parties may
not agree to confer such powers on an arbitration panel.”).
C. PRTC has contractually waived its right to object to
arbitration of this dispute.
As an initial matter, I find that PRTC has waived its right
to challenge the arbitrability of the present dispute with
WorldNet. It is well-settled that “the doctrine of primary
jurisdiction is not, despite its name, jurisdictional.” Baltimore &
Ohio Chicago Terminal R. Co. v. Wisc. Cent. Ltd., 154 F.3d 404, 411
PRTC v. WORLDNET
Page 13
(7th Cir. 1998). On the contrary, it “presupposes” that jurisdiction exists. Id. Because it is not a jurisdictional doctrine, it may
be waived. See id.; see also Nw. Airlines, Inc. v. Cnty. of Kent,
Mich., 510 U.S. 355, 366 n.10 (1994) (declining to consider
primary jurisdiction, because the parties had not raised the
issue). And one way to waive a non-jurisdictional objection to
the arbitrability of a dispute is by contractually agreeing to
arbitrate that dispute, as PRTC did here in the 2010 ICA. Cf.
id. (holding that the primary jurisdiction had been waived “by
the agreement to submit to arbitration issues that the doctrine
would otherwise assign to an administrative agency”); see also
CSX Transp. Co. v. Novolog Bucks Cnty., 502 F.3d 247, 253 (3d
Cir. 2007) (holding that primary jurisdiction arguments are
waivable); Serv. Employees Int’l Union v. St. Vincent Med. Ctr.,
344 F.3d 977, 983 (9th Cir. 2003) (holding that, notwithstanding
primary jurisdiction argument, dispute was arbitrable where
contract contained a broad arbitration provision); Frontier
Commun. of the Carolinas LLC v. Duke Energy Carolinas, LLC, Civ.
No. 13-791, 2014 WL 4055827, at *5 (E.D.N.C. Aug. 15, 2014)
(holding, under similar circumstances, that “the broad arbitra-
PRTC v. WORLDNET
Page 14
tion provision . . . renders arbitrable the instant dispute”).6
D. The question of whether to refer this case to the Board
or FCC was for the arbitrator, not this Court.
Even if PRTC had not waived its primary jurisdiction
objection to the arbitration, its motion to vacate would be
denied because the question of whether that doctrine required
referral to the Board or FCC was for the arbitrator, not this
Court. Faced with broad arbitration provisions, Courts
routinely treat primary jurisdiction as a threshold merits
question to be addressed by the arbitrator. See, e.g., Frontier
Commun., 2014 WL 4055827, at *7 (treating primary jurisdiction
as a threshold merits question, to be decided by the arbitrator
in light of the broad arbitration clause); Global Crossing
Telecomm., Inc. v. 3L Commun. Mo., LLC, Civ. No. 13-885, 2013
WL 3893321, at *4 (E.D. Mo. July 26, 2013) (refusing to consider
primary jurisdiction arguments where dispute was arbitrable);
6.
PRTC argues, without citing any authority, that “[w]hether the parties
agreed to an arbitration clause is irrelevant under the legal doctrine
establishing that private parties may not refer to arbitration matters that
fall within the primary jurisdiction of regulatory agencies.” Docket No.
35, at 7. The cited cases stand for precisely the opposite proposition,
however, and given the non-jurisdictional nature of the doctrine on
which PRTC relies, I find those cases’ reasoning convincing.
PRTC v. WORLDNET
Page 15
Natural Gas Pipeline Co. of Am., LLC v. 3.39 Acres of Land, More
or Less, in Cameron Parish, La., Civ. No. 09-724, 2009 WL
2135151, at *4 (W.D. La. July 10, 2009) (referring case to
arbitration where primary jurisdiction argument had been
raised against the arbitrator’s jurisdiction); S. Strauss, Inc. v.
United Food & Com. Workers Union, Loc. 342, 503 F. Supp. 2d
567, 576 (E.D.N.Y. 2007) (referring case to arbitration and
finding that questions of arbitrability are “not within the
‘special competence’ of the” agency); N.Y. Cross Harbor R.R.
Terminal Corp. v. Consol. Rail Corp., 72 F. Supp. 2d 70, 82
(E.D.N.Y. 1998) (treating primary jurisdiction as a threshold
merits question, to be decided by the arbitrator in light of the
broad arbitration clause). Especially given that the parties in
this case specifically agreed that the arbitrator should determine questions of arbitrability, I find that the question of
whether to refer this matter for initial adjudication by the
Board or FCC was correctly in the purview of the arbitrator.
The arbitrator denied precisely such a jurisdictional objection,
and that should have settled the matter.
E. The primary jurisdiction doctrine, even if applicable,
was not a bar to arbitration in this case.
Central to PRTC’s argument in this Court is the idea that
PRTC v. WORLDNET
Page 16
there is some fundamental incompatibility between agency
primary jurisdiction and arbitration. For this proposition, it
relies largely on two cases from the D.C. Circuit, A/S Ivarans
Rederi and Duke Power Co. v. F.E.R.C., 864 F.2d 823 (D.C. Cir.
1989). In fact, neither of these cases support PRTC’s arguments.
To the contrary, they and other cases confirm that arbitration
may be a useful tool even for solving cases at the heart of
agency competency.
In Duke Power, Duke Power appealed a FERC order against
it on the grounds that an arbitration clause mandated arbitration before FERC could consider the dispute. See id. at 824–25.
The D.C. Circuit rejected this argument. It found that FERC
had “continuing regulatory jurisdiction” over the dispute
under the parties’ agreement. Id. at 829. It further found that
the dispute was within FERC’s primary jurisdiction. Id. As
such, it held that its “acceptance for filing of an agreement that
contains an arbitration clause does not legally disable [it] from
resolving disputes at the core of its enforcement mission.” Id.
That said, the court made clear that FERC was not prohibited
from sending the dispute to arbitration. To the contrary, while
it was “not required to submit the dispute to arbitration despite
a mandatory arbitration clause in the agreements . . . it may, in
PRTC v. WORLDNET
Page 17
its discretion, do so.” Id. at 830 (emphasis added). Thus, under
Duke Power an administrative agency may ignore an arbitration
clause and consider matters within its core competency, but it
is not required to do so. Notably, FERC has done exactly this.
See, e.g., N.C. E. Mun. Power Agency v. Carolina Power & Light
Co., 45 FERC ¶ 61,487, at *62,518 (Dec. 22, 1988) (“Where a
filing concerns a dispute that the parties have agreed to
arbitrate and where arbitration will not prejudice any party
and is not contrary to the public interest, we will generally give
effect to the parties’ intentions that such a dispute be submitted
for arbitration.”), rehearing denied, 46 FERC ¶ 61,181, at *3–4
(Feb. 22, 1989) (interpreting Duke Power as authorizing such a
procedure).
The D.C. Circuit’s opinion in A/S Ivarans Rederi is to the
same effect. There, the Circuit held that an administrative
agency, the Federal Maritime Commission (“FMC”), could
“choose to approve the parties’ desire to submit their claims to
arbitration first.” 895 F.2d at 1446. Like FERC, the FMC
regularly required parties to honor agreed and approved
arbitration clauses before seeking FMC review. See id. (“The
FMC, for its part, has apparently taken a consistent view that
it will require parties to submit to arbitration when an ap-
PRTC v. WORLDNET
Page 18
proved contract has a mandatory arbitration provision.”).
According to the Circuit, such an arrangement was in no sense
problematic. Id.; see also A/S Ivarans Rederi v. United States, 938
F.2d 1365, 1367 (D.C. Cir. 1991) (explaining that when a conflict
between regulated parties “implicate the agency’s public
duties, the agency can decide, in its judgment, whether to send
the parties first to arbitration” (emphasis added)).
Federal policy strongly favors arbitration, and there is no
automatic incompatibility between agency expertise and
arbitration. Cf. Shearson/Am. Express, Inc. v. McMahon, 482 U.S.
220, 226–27 (1987) (explaining that statutory claims are arbitrable unless there is explicit congressional intent to the contrary,
which ‘will be deducible from [the statute’s] text or legislative
history,’ or from an inherent conflict between arbitration and
the statute’s underlying purposes” (quoting Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 632–37
(1987)) (internal citations omitted)). This is true even of matters
at the heart of the agency’s mission, at least when the agency
has consented to have such matters arbitrated. As such, in the
years following Duke Power and A/S Ivarans Rederi, many
federal courts have approved arrangements by which regulated parties resort to private arbitration in the first instance.
PRTC v. WORLDNET
Page 19
See, e.g., Black v. Surface Transp. Bd., 476 F.3d 409, 413 (6th Cir.
2007) (approving agency practice of “requiring parties initially
to submit disputes to arbitration”); Assoc. of Am. Railroads v.
Surface Transp. Bd., 162 F.3d 101, 107 (D.C. Cir. 1998) (refusing
“to ‘mandate that the [agency] adjudicate disputes that it
properly determines to be arbitrable’” (quoting Bhd. of Locomotive Eng’rs v. I.C.C., 808 F.2d 1570, 1579 n.75 (D.C. Cir. 1987)));
see also Emps. of Butte, Anaconda & Pac. Ry. Co. v. United States,
938 F.2d 1009, 1013–14 (9th Cir. 1991) (reviewing agency’s
review of an arbitration award); Hotel & Rest. Emps. Union Local
217 v. J.P. Morgan Hotel, 996 F.2d 561, 567–68 (2d Cir. 1993)
(approving arbitration of matters within the NLRB’s primary
jurisdiction).
Here, WorldNet and PRTC agreed to arbitrate disputes
under the 2010 ICA, and the Board approved precisely that
arrangement. The cases above—especially Duke Power and A/S
Ivarans Rederi—show that the Board may approve such
arrangements and that they may be enforced. Accordingly,
even claims within the Board’s primary jurisdiction were
subject to arbitration under the 2010 ICA.7
7.
PRTC also makes a claim that part of the arbitrator’s award decided
matters within the primary jurisdiction of the FCC, which did not
PRTC v. WORLDNET
Page 20
F. The core dispute between WorldNet and PRTC is not
within any agency’s primary jurisdiction.
Even if PRTC’s motion were not to be denied for all of the
reasons stated above, it would nonetheless be denied on the
merits for the simple fact that PRTC’s dispute with WorldNet
is not within the primary jurisdiction of either the FCC or the
Board. The mere fact that the parties here are regulated and
that the dispute touches on areas of agency purview is not
alone dispositive.
Primary jurisdiction is a prudential doctrine that requires
a forum to decline jurisdiction only insofar as it is necessary to
preserve the core goals, policies, and expertise of the relevant
administrative agency. See Am. Auto. Mfrs., 163 F.3d at 81.
Thus, matters should be referred to agencies when they
implicate the agency’s core competencies, such as with challenges to the “validity” or a rate or tariff. Nader v. Allegheny
Airlines, Inc., 426 U.S. 290, 304 (1976); Cahnmann v. Sprint Corp.,
133 F.3d 484, 487 (7th Cir. 1998). Similarly, the “reasonable-
explicitly approve the 2010 ICA. However, the other bars to
consideration of PRTC’s primary jurisdiction arguments, discussed
above, still apply. And even if they are considered, they would be
denied for the reasons discussed below.
PRTC v. WORLDNET
Page 21
ness” of tariffs is an issue “confide[d] to the agency.” Wisc.
Cent., 154 F.3d at 410. But where the claim touches on the
agency’s realm of expertise but does not, for example, “require
determining the validity of a tariff,” referral is not necessary.
Cahnmann, 133 F.3d at 488 (citing In re Long Distance Telecomm.
Litig., 831 F.2d 627, 633-34 (6th Cir. 1987)). Likewise, construction of a tariff or other regulatory document does not require
referral unless terms in it “are used in a peculiar or technical
sense, [or] where extrinsic evidence is necessary to determine
their meaning or proper application, so that ‘the inquiry is
essentially one of fact and discretion in technical matters.’”
United States v. W. Pac. R.R. Co., 352 U.S. 59, 65–66 (1956)
(quoting Great N. Ry. Co. v. Merchants’ Elevator Co., 259 U.S. 285,
291 (1922)). Thus, “[a]n issue of tariff interpretation that does
not” involve “highly technical matters central to the agency’s
mission and expertise” need not be referred to the agency.
Wisc. Cent., 154 F.3d at 411.
In light of these principles, courts have refused to refer
cases to administrative agencies when they deal with “compliance with an administrative standard, rather than whether the
standard was reasonable.” Madison Cnty. Mass Transit v.
Hanfelder, Civ. No. 00-179, 2001 WL 775977, at *3 (S.D. Ill. Feb.
PRTC v. WORLDNET
Page 22
7, 2001) (citing United States v. Elrod, 627 F.2d 813, 818 (7th Cir.
1980)); see also Elrod, 627 F.2d at 818 (“The doctrine is not
applicable where the issue, regardless of its complexity, is not
the reasonableness of the rate or rule, but a violation of such
rate or rule.”). Courts need not refer to administrative agencies
when the question presented “simply requires [them] to
engage in an activity—statutory interpretation—that is the
daily fare of federal judges.” Schiller v. Tower Semiconductor
Ltd., 449 F.3d 286, 295 (2d Cir. 2006). Courts may also consider
actions to enforce a tariff, even when they involve (nontechnical) fact finding. Nat’l Commc’ns Assoc. v. Am. Tel. &
Telegraph Co., 46 F.3d 220, 223 (2d Cir. 1995). They should,
however, refer interpretation and enforcement actions to the
agency when they involve “policy considerations.” S. New Eng.
Tel. Co. v. Global NAPs, Inc., Civ. No. 304CV2075JCH, 2005 WL
2789323, at *7 n.7 (D. Conn. Oct. 26, 2005). The same rules
apply to interconnection agreements. See Ill. Bell Tel. Co., Inc. v.
Global NAPs Ill., Inc., 551 F.3d 587, 596 (7th Cir. 2008) (“[W]e do
not think the court need refer all disputes over an interconnection agreement to the state commission, only those where the
dispute raises a genuine policy issue the resolution of which
has been confided by the Telecommunications Act to the state
PRTC v. WORLDNET
Page 23
commissions.”). Of course, whichever matters may be heard by
a court may also be heard by an arbitrator, so long as the
parties have agreed. See Wisc. Cent., 154 F.3d at 411 (“An issue
of tariff interpretation that does not involve [technical] matters
may . . . be decided by the court without a reference to the
agency. And if by a court, why not by an arbitrator?”).
Before turning to the present dispute, it is useful to see how
courts have considered specific requests for agency referral in
the telecommunications context. For that, I turn to a few of the
cases that PRTC has cited in support of its position, the most
useful of which, to my mind, is Sancom, Inc. v. AT&T Corp., 696
F. Supp. 2d 1030 (D.S.D. 2010). Sancom was a tariff enforcement
and interpretation action, and so the court noted that it was
presumptively within its purview. Id. at 1036. Nonetheless, it
granted a motion to refer the matter to the FCC because
interpretation of the tariff “require[d] interpretation of words
used in a technical sense,” including terms not defined by the
tariff. Id. at 1037; see also id. at 1038 (noting that the dispute
might involve “unique terms not available under [the] tariff”).
It also required “consideration of extrinsic evidence relating to
topics within the expertise of the FCC.” Id. at 1037. The court
specifically noted that determining whether certain providers
PRTC v. WORLDNET
Page 24
were “end users” would “embroil the court in the technical
aspects of switched access services.” Id. The court also noted
that there were many other cases considering the same
question at that time, and so referral to the FCC would
“promote uniformity and consistency within the particular
field of regulation.” Id. at 1039; see also id. at 1040 (noting “that
the risk of inconsistent and contradictory rulings on the tariff
application issue [was] great”). Finally, the court explained that
the “FCC’s expertise [was] necessary to determine whether [the
plaintiff was] entitled to compensation for services not covered
by its tariffs.” Id. at 1040. Thus, the Sancom found that invocation of the primary jurisdiction doctrine was proper where the
dispute (1) required the application of undefined, technical
terms; (2) was likely to impair national uniformity by leading
to conflicting rulings; and/or (3) involved the pricing of
services outside of a tariff (or, logically, an ICA).
The decisions in Pac-West Telecomm and Global Crossings are
to a similar effect. Pac-West was a tariff collection action. See
Pac-West Telecomm, Inc. v. MCI Commc’ns Servs., Inc., Civ. No.
10-1051, 2011 WL 1087195, at *1 (E.D. Cal. March 23, 2011). The
court noted that uniformity concerns were implicated by the
FCC’s recent notice of proposed rulemaking on the subject
PRTC v. WORLDNET
Page 25
matter of the dispute. Id. at *2. The action also required the
interpretation of technical terms and, crucially, called into
question the validity of a tariff. Id. at *2–3. The court accordingly referred the matters to the FCC. Id. at *3. Global Crossing
was also a tariff action. See Global Crossing Telecomm., Inc. v.
nTelos Tel. Inc., Civ. No. 11-503, 2012 WL 4459946, at *1 (W.D.
Va. June 1, 2012). In that case, however, the parties could not
even agree as to what the question was, and the court explained that answering that question would “necessitate a
factual determination of precisely what Global Crossing
ordered from . . . nTelos and Verizon.” Id. at *3. This question,
as well as the other questions in the case, would turn on
“questions of industry custom and practices” that the FCC was
uniquely situated to consider. Id. at *3. Thus, questions of
validity, industry custom and practice, and uniformity are
properly put before the administrative agency in the first
instance.
PRTC’s brief expends considerable effort trying to find
evidence of these forbidden determinations in the Final Award,
but in the end, its brief is all smoke and mirrors. For example,
PRTC suggests that the arbitrator “made determinations
regarding the technical characteristics of entrance facilities,” see
PRTC v. WORLDNET
Page 26
Docket No. 4, at 13, but this mostly amounted to a review of
how the 2010 ICA itself defined that term, Docket No. 3-2, at
11–12.8 Similarly—and more importantly—the arbitrator’s
discussion of the Disputed Facilities was grounded almost
entirely in the 2010 ICA’s language. See id. at 17–18.9
PRTC also suggests that the arbitrator made “determinations of genuine policy issues.” Docket No. 4, at 14. This is
simply incorrect. It is true, as PRTC notes, see Docket No. 4, at
12, that the Final Award considered how courts and regulatory
agencies had defined the term “entrance facilities,” see, e.g.,
Docket No. 3-2, at 16–17, but that fact actually cuts against
PRTC’s argument because it makes clear that arbitrator was
8.
The arbitrator did make factual findings regarding the definition of a
“cable entrance facility,” see Docket No. 3-2, at 12, but these facts were
not strictly necessary to the arbitrator’s conclusion. In any case, the facts
found do not seem so technical or important that they alone would put
this matter in the agency’s primary jurisdiction.
9.
As PRTC points out, the arbitrator did find that the “Dispute Facilities
are the only way WorldNet can connect its network to PRTC’s loops
and interoffice transport.” Docket No. 3-2, at 19. However, neither
PRTC nor the Final Award give any indication that this finding was
even disputed. Moreover, the finding was relevant only to the Final
Award’s explanation of why PRTC’s tariff argument was wrong, not to
its purely textual explanation of why the Disputed Facilities were
UNEs.
PRTC v. WORLDNET
Page 27
following—not making—policy determinations. Moreover, the
arbitrator’s determinations that the Disputed Facilities were
UNEs and whether the POT bay was the demarcation point
between WorldNet’s and PRTC’s networks were made solely
on the basis of the 2010 ICA’s text. See id. at 10–11, 17–18. PRTC
also argues that the arbitrator spent “three paragraphs . . .
discuss[ing] the regulatory implications of treating the Disputed Facilities as entrance facilities.” Docket No. 4, at 14. This
misconstrues the Final Award. The cited paragraph explains
that PRTC’s interpretation would render meaningless significant portions of the 2010 ICA, see Docket No. 3-2, at 19–20; this
is an application of contract interpretation principles, not a
determination of policy implications.
Finally, PRTC objects to the arbitrator “resolv[ing] the
question of whether the Disputed Facilities fell within the
language of PRTC’s tariff or the” 2010 ICA, because this is the
“type[] of genuine public policy determination[] over which
federal and state regulators have primary jurisdiction.” Docket
No. 4, at 15–16. At last, PRTC correctly describes the Final
Award, but it gets the law wrong. As I have said, the Final
Award found that the Disputed Facilities were UNEs based on
a straightforward reading of the 2010 ICA’s language. Because
PRTC v. WORLDNET
Page 28
they were UNEs, the Disputed Facilities were not covered by
the tariffs; this, too, was a finding based on the 2010 ICA’s
language. Neither of these findings, moreover, relied in any
sense on public policy determinations, nor did they require the
interpretation of any undefined, technical terms. Matters of
construction of this sort are decidedly not within the primary
jurisdiction of administrative agencies.
G. The arbitrator did not set any rates or invalidate a
tariff.
PRTC makes two final arguments regarding the arbitrator’s
jurisdiction, both of which require it to badly misconstrue the
Final Award. First, it argues that the arbitrator “exceeded his
authority and usurped the Board’s exclusive jurisdiction under
47 U.S.C. § 252 when he established the specific rate to apply
to” the Disputed Facilities. Docket No. 4, at 16. This argument
is frivolous. The arbitrator’s holding was the 2010 ICA itself set
the rate for the Disputed Facilities; as such, there was no rate
to set.
PRTC also suggests that the Final Award “invalid[ated]” a
tariff. Docket No. 4, at 19. More precisely, PRTC argues that the
arbitrator invalidated “charges that were levied by PRTC pursuant to its federal tariff,” id. (emphasis added), but it tries to
PRTC v. WORLDNET
Page 29
frame this challenge within the legal context of validity
challenges to tariffs themselves. See id. (“Challenges to the
validity of a common carrier’s rates or practices in a federal
tariff are subject to the primary jurisdiction of the federal
regulatory agencies.”). I repeat myself: the Final Award
determined that, based on the 2010 ICA’s language, the
Disputed Facilities were covered by TELRIC rates, not the
tariff. This ruling had nothing to do with the “validity” of any
tariff, and it invalidated charges under the tariff only insofar as
it held that PRTC had been long overcharging WorldNet by
requiring payment for the Disputed Facilities under the tariff
rather than at TELRIC rates. PRTC gives away the game when
it notes that validity challenges are for the FCC because they
require “consideration of technical matters regarding the
nature of the service at issue, and the balancing of public policy
and regulatory considerations.” Docket No. 4, at 20. PRTC
adds that: “The Arbitrator was in no position to do so and, in
fact, did not do so. He was thus precluded on primary jurisdiction grounds from declaring PRTC’s federal tariff charges
invalid.” Id. (emphasis added). As PRTC says, the arbitrator
could not—and did not—consider policy considerations, and
he did not do so because he was not invalidating any tariff; he
PRTC v. WORLDNET
Page 30
was interpreting a contract. Cf. Schiller, 449 F.3d at 295 (providing that a matter is not within an agency’s primary jurisdiction
if it was of the sort that is the “daily fare of federal judges”).
H. This court cannot consider PRTC’s argument that the
arbitrator exceeded his authority in ruling on the
double-billing claims.
The Final Award determined that PRTC had on various
occasions double-billed WorldNet for the use of the Disputed
Facilities, and it ordered that PRTC return this money. See
Docket No. 3-2, at 13. PRTC argues that the arbitrator “exceeded his authority as a matter of contract law when” he made this
order. Docket No. 4, at 21. What PRTC seems to mean is that
there was a separate settlement agreement that, in its opinion,
required such a claim be made in Puerto Rico state or federal
court. See id. Noting that this argument has nothing to do with
PRTC’s primary jurisdiction arguments, I reject it for several
reasons.
First, this is a question of arbitrability properly decided by
the arbitrator, before whom it is not even clear whether this
argument was raised. See Docket No. 20 (“[T]he arbitrator was
not presented with, nor did he rule on, any dispute concerning
the settlement agreement.”). Second, as this was a question for
PRTC v. WORLDNET
Page 31
the arbitrator, it may only be vacated pursuant to the FAA’s
vacatur provision. See 9 U.S.C. § 10(a); see also Rent-A-Center,
W., Inc. v. Jackson, 561 U.S. 63, 68–69 (2010) (holding that “the
FAA operates on” an “agreement to arbitrate threshold issues”
like arbitrability “just as it does on any other”). PRTC has not
invoked any of the statutory bases for vacating an arbitration
award, much less has it attempted to show why they apply. As
such, PRTC has waived its arguments in this regard. Third,
PRTC’s arguments regarding the settlement agreement’s
applicability is too vague to be of any use; reading its motion,
I am frankly unable to determine why it thinks the settlement
agreement controls this question.10 This, too, amounts to
waiver.
I find that PRTC’s arguments regarding the double-billing
amount to an undeveloped and improper challenge to a matter
that was properly before the arbitrator. I further find there is
insufficient material before me to consider the merits of PRTC’s
10. PRTC, for instance, cites to arbitration testimony suggesting that the
agreement was the “likely” cause of the double billing. Docket No. 3-1,
at 94. The other citation, also to arbitration testimony, simply states the
fact that the Disputed Facilities are covered by the settlement
agreement conclusorily, without citation to any particular part of the
agreement. Docket No. 3-2, at 92–93.
PRTC v. WORLDNET
Page 32
argument. As such, I reject it.
I. PRTC has failed to show that the arbitrator manifestly
disregarded applicable law.
For many years, courts have recognized manifest disregard
for the law as a common-law grounds for vacating arbitration
awards. See Bangor Gas Co., LLC v. H.G. Energy Servs. (U.S.) Inc.,
695 F.3d 181, 187 (1st Cir. 2012). The First Circuit has limited
the applicability of this doctrine to “cases where the award
conflicts with the plain language of the contract or where ‘the
arbitrator recognized the applicable law, but ignored it.’” Id.
(quoting Gupta v. Cisco Sys., Inc., 274 F.3d 1, 3 (1st Cir. 2001)).
The First Circuit has—if in dicta, id.—held that manifest
disregard is no longer a proper basis for vacating an arbitral
award, Ramos-Santiago v. United Parcel Serv., 524 F.3d 120, 124
n.3 (1st Cir. 2008) (citing Hall Street Assocs., LLC v. Mattel, Inc.,
552 U.S. 576 (2008)). Nonetheless, it and courts in this district
have continued to apply the doctrine as they await a more
direct ruling from the higher courts. See, e.g., Bangor Gas, 695
F.3d at 187; Union de Tronquistas de P.R., Local 901 v. United
Parcel Serv., Inc., 960 F. Supp. 2d 354, 358 (D.P.R. 2013).
Recall that PRTC’s position during the arbitration was that
the Dispute Facilities were “entrance facilities.” In the course
PRTC v. WORLDNET
Page 33
of making his ruling, the arbitrator recounted how the FCC
and various courts had defined that term, but he ultimately
determined that those definitions were “irrelevant.” Docket
No. 3-2, at 17. PRTC argues that by citing the FCC definition—PRTC says he “recognized the existence of the FCC
rules,” Docket No. 4, at 23—but ignoring them, the arbitrator
manifestly disregarded the law. This argument is without any
merit.
PRTC is correct that where the arbitrator knows the law but
disregards it, manifest disregard may exist. See, e.g., McCarthy
v. Citigroup Global Mkts. Inc., 463 F.3d 87, 91–92 (1st Cir. 2006).
But the law “disregarded” needs to have actually been relevant
to the decision. According to PRTC, “there can be no plausible
claim that . . . the rules of the agency in charge of defining that
very term” were irrelevant. Docket No. 4, at 23. But of course
they were here, because the 2010 ICA determined the question
of the Disputed Facilities’ status and showed that they were
not, for the purposes of that agreement’s pricing provisions,
entrance facilities. Given that conclusion, there was no need to
consider how the FCC had defined entrance facilities. Accordingly, no manifest disregard of law exists and vacatur is
improper on those grounds.
PRTC v. WORLDNET
Page 34
J. Modification of the final award for a calculation error
is not warranted.
PRTC’s final objection to the Final Award is that it contains
a calculation error that subjects it to modification. According to
PRTC, it credited WorldNet $107,945.37 before the arbitration,
which should be deducted from the $353,812.49 awarded to
WorldNet. Docket No. 4, at 25. According to WorldNet,
however, this credit is irrelevant to the damages awarded in
the arbitration. See Docket No. 20, at 39–40. WorldNet notes
that the award was calculated by taking the amount that
WorldNet actually paid PRTC and subtracting from it the
amount that WorldNet should have paid. Id. at 39. The credit,
WorldNet says, was against a larger balance that PRTC
claimed was owed, and that balance was nullified by a separate
portion of the award. Id. at 39–40 (citing Docket No. 3-2, at 23
(nullifying WorldNet’s tariff liability to PRTC)). From the Final
Award, it is impossible to say which position is the correct one.
The FAA permits courts to modify arbitration awards
where there exists “an evident material miscalculation of
figures.” 9 U.S.C. § 11(a). The First Circuit has not construed
this language, see Lumber Liquidators, Inc. v. Sullivan, Civ. No.
10-11890, 2011 WL 5884252, at *2 (D. Mass. Aug. 10, 2011)
PRTC v. WORLDNET
Page 35
(noting lack of precedent), but the circuits that have done so
seem to universally require that the alleged error be apparent
from the face of the award, see, e.g., Grain v. Trinity Health,
Mercy Health Servs. Inc., 551 F.3d 374, 378–79 (6th Cir. 2008)
(requiring a “computational error” on the “face of the award”);
AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc., 508
F.3d 995, 999 (11th Cir. 2007) (requiring the mistake to be on
the face of the award); U.S. Energy Corp. v. Nukem, Inc., 162 F.3d
1175, at *5 (10th Cir. 1998) (unpublished table decision) (same);
Apex Plumbing Supply, Inc. v. U.S. Supply Co., 142 F.3d 188, 194
(4th Cir. 1998) (same); see also Prestige Ford v. Ford Dealer Comp.
Servs., Inc., 324 F.3d 391, 396 (5th Cir. 2003) (requiring that the
mistake be “unambiguous and undisputed” (internal quotations omitted)), overruled on other grounds as recognized in
Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 349, 354 (5th Cir.
2009). Here, the supposed error is far from plain, and ruling
upon PRTC’s claim would require the weighing of evidence,
which § 11(a) does not permit. Accordingly, PRTC’s request
that I modify the award is rejected.
K. The motion to vacate must be denied.
As I have said, PRTC contractually waived its right to object
to arbitration on primary jurisdiction grounds, a question that
PRTC v. WORLDNET
Page 36
was in any case properly raised before the arbitrator, not this
Court. Furthermore, the doctrine, even if properly considered,
would give PRTC none of the relief it seeks. PRTC’s other
arguments requesting vacatur or modification of the Final
Award are similarly unavailing. As such, I must deny PRTC’s
motion to vacate.
IV.
WorldNet’s Motion to Confirm the Final Award
In addition to opposing PRTC’s motion to vacate the Final
Award, WorldNet filed a cross-motion to confirm it. Under the
FAA, I “must grant” the confirmation motion unless the
motion is to be “vacated, modified, or corrected.” 9 U.S.C. § 9.
Thus, because I have denied PRTC’s motion to modify or
vacate the award, and because I cannot find (nor have the
parties pointed to) any other aspect of the Final Award that
needs correction, confirmation is appropriate.
I note that PRTC has not opposed the motion to confirm.
Instead, it filed a motion to hold it in abeyance, Docket No. 32,
which was never ruled upon. But a party seeking a stay cannot
simply treat its own motion as granted, and so PRTC was
required to file its opposition or waive its right to submit one.
Furthermore, PRTC’s motion requesting that confirmation be
held in abeyance is based on the pendency of its motion to
PRTC v. WORLDNET
Page 37
vacate, which has been denied, and its opposition to the
motion to confirm would be based on the same arguments,
which have been rejected.11 See id. at 2–3. For this reason,
WorldNet’s motion to confirm the Final Award is ripe for
adjudication, and it is granted.12
V. WorldNet’s Other Requests
WorldNet also asks that an order of garnishment be entered
against PRTC, that it be awarded pre-judgment interest, and
that it be awarded costs and fees.
First, an order of garnishment is unnecessary. There is no
indication that PRTC is unwilling or unable to pay a judgment
of this court. Moreover, now that the award has been confirmed, WorldNet may seek execution of the Final Award. The
motion for garnishment is therefore denied.
Second, WorldNet requests post-award, pre-judgment
interest. According to WorldNet, such an award is governed
by Puerto Rico law, namely Rule of Civil Procedure 44.3(b),
11. After WorldNet filed its hybrid opposition to the motion to vacate and
cross-motion to confirm, Docket No. 20, PRTC filed a lengthy reply
responding to all of the arguments therein, Docket No. 35.
12. I find PRTC’s motion to strike and to hold the confirmation in
abeyance, Docket No. 32, to be MOOT.
PRTC v. WORLDNET
Page 38
P.R. Laws Ann. tit. 32, app. III, R. 44.3(b). The First Circuit has
held that awards of pre-judgment interest in arbitration cases
are discretionary and within the equitable powers of the
district court. Colon-Velez v. P.R. Marine Mgt., Inc., 957 F.2d 933,
941 (1st Cir. 1992). It has further held that state law provides
the appropriate source for determining the interest rate to be
applied. Id. In this case, the parties explicitly agreed to settle
their disputes through an “expedited” arbitration. That process
began more than two and a half years ago, on May 9, 2012.
Moreover, this is the third forum to which PRTC has unsuccessfully pressed its “jurisdictional” challenges to the arbitration.
Those challenges were just as successful here as they were
everywhere else, and so they have done little more than render
meaningless the 2010 ICA’s requirement for expeditious
dispute resolution. I therefore find that pre-judgment interest
is appropriate to compensate WorldNet for the delay that
PRTC has caused. Rule 44.3 provides that interest be calculated
at the rate determined by the Office of the Commissioner of
Financial Institutions, which currently stands at 4.25%.13 PRTC
13. Commissioner of Financial Institutions of Puerto Rico, Interest Rates
Payable on Judicial Sentences, available at
http://www.ocif.gobierno.pr/tiposinteres_eng.html.
PRTC v. WORLDNET
Page 39
is responsible for interest on the Final Award beginning on its
date of issuance, October 24, 2013.
Finally, there is the matter of attorneys’ fees. Rule 44.1(d) of
Puerto Rico’s Rules of Civil Procedure require the imposition
of fees against a party “has acted obstinately or frivolously.”
P.R. Laws Ann. tit. 32, app. III, R. 44.1(d). Here, as noted above,
I find that PRTC has been obstinate: it has repeated losing
arguments, which it has misclassified as jurisdictional, to this
court, despite having previously lost on the same issues in two
other fora. Those arguments were, moreover, largely frivolous
and involved misconstruing the record of the arbitration. And
the claims that PRTC made to this court were ones it had
waived on multiple grounds. As such, I conclude that PRTC’s
primary purpose in filing its motion to vacate the Final Award
was further delaying WorldNet’s recovery. I therefore find that
attorneys’ fees and costs are warranted. WorldNet has thirty
days to prove its fees in this case; PRTC will have fifteen days
to object. These deadlines will not be extended.
V. Conclusion
For all of the reasons stated above, I DENY PRTC’s motion
to vacate. I GRANT WorldNet’s cross-motion to confirm and
FIND MOOT its cross-motion to dismiss. PRTC is further
PRTC v. WORLDNET
Page 40
ORDERED to pay WorldNet’s costs and reasonable attorneys’
fees incurred in the course of this action, as well as post-award,
pre-judgment interest, at a rate of 4.25%, accruing since
October 24, 2013. Judgment will follow. See 9 U.S.C. § 13
(providing that judgment confirming an arbitration award
“shall be docketed as if it was rendered in an action”).
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 15th day of September, 2014.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE
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