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'Legal Definition of Chutzpah’

UPM Would Have FCC Believe It’s the ‘Real Victim' in Roaming Fraud, Says Digicel

UPM “fraudulently tapped” into its roaming agreements with U.S. mobile carriers, “surreptitiously routing calls to Digicel Haiti’s home network from third parties who are not Digicel Haiti customers,” Digicel Haiti said, responding to UPM’s Feb. 21 complaint alleging it violated the Communications Act by banning resale of UPM’s telecommunications service (see 2302270073). Its answer was posted Friday (docket 23-64) at the FCC Enforcement Bureau.

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UPM participated in the international wholesale routing market and “mass-routed third-party calls to Digicel Haiti disguised as roaming calls from Digicel Haiti subscribers,” said Digicel Haiti’s answer. “This traffic was one-way, into Haiti over AT&T and T-Mobile networks” in the U.S., it said. The traffic at issue was at the discounted rate “afforded to AT&T and T-Mobile in return for Digicel Haiti providing AT&T and T-Mobile customers with roaming privileges in Haiti,” it said. “UPM, of course, provided no service to anyone but its own customers.”

UPM nonetheless complained to the Enforcement Bureau “that it is the real victim,” said Digicel Haiti’s answer. It’s reminded, it said, of the 1991 D.C. Circuit decision in Harbor Insurance v. Schnabel Foundation, in which the court touched on “the legal definition of chutzpah” as a young man, convicted of murdering his parents, who argues for mercy on the ground that he’s an orphan.

UPM asked the bureau to find its fraud “to have been justified because Digicel Haiti is the real bad actor,” said the answer. UPM claims Digicel Haiti violated an FCC-imposed obligation to resell to UPM the U.S. mobile roaming service Digicel Haiti bought for its roaming Haitian customers, it said. UPM also claims Digicel Haiti’s actions in Haiti violated an FCC prohibition against call blocking, the answer said.

A third UPM claim is that Digicel Haiti violated the international settlement benchmark regime, said the answer. UPM also raises an argument concerning the FCC policy against enforcing anti-competitive foreign restrictions, though it doesn’t seem to make any claim for relief on that basis, the answer said: “Digicel Haiti denies each of these claims.”

UPM’s complaint “should not long detain” the bureau, said Digicel Haiti’s answer. There’s “no requirement” that mobile carriers in the U.S. resell their service, “let alone the service of a roaming partner without the roaming partner’s consent,” it said. There once was a mandatory resale requirement for mobile service, it said, but the FCC “expressly chose to sunset it and has since warned at least twice against efforts like this to smuggle a mobile resale obligation in through a regulatory back door.” The bureau previously dismissed “a similarly misguided claim on this straightforward basis,” it said.

UPM’s “alternative presentation” of its mandatory-resale argument as the violation of a broader rule against unfair practices or a discrimination violation “is precisely the kind of back-dooring the Commission has warned against,” said the answer. “This alternative casting of its mandatory resale claim is independently flawed because it would require Digicel Haiti to violate the roaming contracts with third parties through which its underlying U.S. roaming service is provided,” it said.