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By Tabatha Teaney

PAGO PAGO, American Samoa (December 10, 1998 - Samoa News)--Governor Tauese Sunia is being taken to court again.

This time his codefendants include the American Samoa Telecommunications Authority (ASTCA) Board of Directors and Executive Director Aleki Sene.

A complaint was filed in the High Court of American Samoa last Friday by the American Samoa License, Inc. (ASLI) against Governor Sunia and his codefendants seeking declaratory relief and an injunction.

ASLI believes that the Governor's portfolio as the State Commission to regulate intrastate operations of telecommunication carriers in the territory is a conflict of interest.

According to the complaint, on May 1st of this year ASLI's representatives initiated discussions with ASTCA Executive Director Aleki Sene and his staff on the technical aspects of interconnecting ASLI's telephone network with the existing ASTCA network (LEC).

Two months later, on July 8th, ASLI's representative made a formal request to negotiate the interconnection of their network and the LEC, pursuant to their rights granted under the Act (47 USC 251 and 252).

Reportedly, an initial draft agreement had been submitted to the ASTCA Board for review after negotiations had taken place.

In October of this year, ASLI received a draft agreement from ASTCA's counsel in Washington, D.C. The draft agreement and proposed order had identified Governor Sunia as the 'Agency' and, for the purpose of administering the agreement, the Governor assumed the function of a State Commission under the Act.

ASLI's examination of the relevant American Samoa constitution and statutes found no specific statutory grant of jurisdiction to the Governor to regulate intrastate operations of telecommunications carriers.

Reportedly, there are no regulatory statutes enacted specifically regulating the intrastate operation of telecommunications carriers.

"In order to cover the concern that the Governor did not have the regulatory jurisdiction of a State Commission, ASLI suggested additional language in the definition of Agency to have the Federal Communications Commission (FCC) designated if the Governor did not have regulated authority," said the complaint.

"In final negotiations with the chairman of the ASTCA Board, language was agreed to that would designate the FCC as an alternative Agency to the Governor in the event of his unavailability," the complaint continued.

As of November 21st, the negotiations had allegedly reached an impasse on a number of issues which had previously been agreed to during final negotiations, but then were rejected when the negotiated agreement was presented to the ASTCA Board for approval.

The ASTC Board had allegedly refused to accept the alternative language concerning who to designate as Agency, despite the fact that the language had been negotiated and agreed to by its Chairman.

According to the complaint, pursuant to the Act, a State Commission is the entity to whom an appeal may be made for arbitration when interconnected negotiations are at an impasse 135 to 160 days after the initial request for interconnection.

"Any interconnection agreement is subject to State Commission approval. Upon the failure of the State Commission to act, the matter is referred to the FCC," said the complaint.

A formal appeal had been filed with Governor Sunia last week, requesting him to exercise the authority of a State Commission to arbitrate the dispute over the interconnect agreement.

"The Governor has an irreconcilable conflict of interest in attempting arbitration here as a State Commission," said the complaint. "It is his constitutional duty to supervise and control governmental agencies and instrumentalities and ASTCA is and remains a governmental agency or instrumentality. ASLI is entitled to an independent arbitrator and it would violate due process for the Governor to act as the arbitrator," claims the complaint.

ASLI has allegedly expended a substantial amount of money acquiring the necessary license and preparing to provide telephone and communication service to the Territory.

The complaint states that the interconnection agreement is a critical part of the service as it is the document that provides for the seamless integration of telecommunication services in the Territory. Further financing of the project depends on the successful conclusion of a valid interconnection agreement.

"If the Governor has no authority as a State Commission, then any approval he may give the interconnection agreement as required of a State Commission will be void and the agreement would be void," said the complaint.

"The disagreement over the existence of a State Commission in the Territory with regulatory authority over the operations of intrastate telecommunications carriers makes it impossible to proceed to arbitrate differences over the terms of the interconnection agreement as provided by the Act without declaratory action by this court as to whether the authority of State Commission exists in the Governor."

"ASLI is suffering and will continue to suffer irreparable financial harm to their business operations if the issue of the State Commission is not expeditiously resolved so that the appropriate authority can arbitrate and approve the interconnection agreement."

ASLI is requesting that the court determine and declare:

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