******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 PATIENTS PLUS, INC., ) ) Complainant, ) ) v. ) File No. E-94-64 ) File No. E-94-65 LONG DISTANCE TELECOMMUNICATIONS ) SERVICE, INC., and ) JUST ENTERPRISES, INC., ) ) Defendants. ) MEMORANDUM OPINION AND ORDER Adopted: August 25, 1997 Released: August 28, 1997 By the Deputy Chief, Common Carrier Bureau: I. INTRODUCTION 1. In this Memorandum Opinion and Order, we address formal complaints filed by Patients Plus, Inc. ("PPI") alleging that defendants Long Distance Telecommunications Service, Inc. ("LDTS") and Just Enterprises, Inc. ("JEI") (collectively "defendants") improperly withheld from PPI assignment of the vanity toll-free telephone number, "1-800-JUSTICE," in violation of Sections 201(a), 201(b), and 202(a) of the Communications Act of 1934, as amended (the "Act"). PPI requests a Commission order directing the transfer of the 1-800-JUSTICE number to PPI, and requiring defendants to pay PPI damages allegedly incurred as a consequence of their violations, as well as attorneys' fees incurred in bringing this complaint. For the reasons set forth below, we deny PPI's request. II. BACKGROUND A. The Parties 2. Complainant PPI is a closely-held corporation incorporated in California. PPI is engaged in the marketing of certain services using toll-free numbers. In particular, PPI developed and marketed a dental referral service using the toll-free number 1-800-DENTIST. Robert Goodman is the President of PPI and is described in complainant's briefs as a widely-recognized "guru" of 800 number marketing. 3. Defendant LDTS is a common carrier incorporated and located in Missouri. As of May 1993, LDTS offered for resale interexchange service to small business and residential customers in Missouri, Kansas, and Oklahoma. LDTS is owned by Frank Shinn and his wife Mary Shinn, who also act as its president and vice-president, respectively. 4. Defendant JEI is a Missouri corporation owned by David and Tina Johnson. JEI was incorporated in January, 1992, and is the successor to the Just Enterprises Group, a partnership also owned by the Johnsons. The precise nature of JEI's business is not clear from the record, although JEI does identify itself as a "marketing company, [which] does not function in any way as a long distance carrier." JEI specifically denies that it is a "carrier" or "common carrier" as defined in Section 3(h) of the Act. 5. Complainant asserts, and defendants do not deny, that Tina and David Johnson are the daughter and son-in-law of the Shinns. Complainant also asserts that corporate registration documents show that the Shinns were directors of JEI at all times relevant to this dispute. Defendants admit that JEI's vice-president, Tina Johnson, served as "general manager" of LDTS from 1991 until at least May 1992, while complainant further alleges that Tina Johnson was also an officer and director of LDTS from at least June 1991 until July 1993. B. The Dispute 6. Prior to the advent of 800 number portability, LDTS requested and was assigned access to the 1-800-587 exchange of 800 toll-free numbers. This included the number 1-800-587- 8423, which can be used to spell the vanity number 1-800-JUSTICE ("1-800-JUSTICE" or "the number"). This number is the subject of the current dispute. The parties, however, agree on little else. We will, accordingly, summarize below what we deem to be the essential aspects of each side's version of the facts. 7. The parties agree that the first contact between them occurred in February 1991. PPI claims that its president, Goodman, called LDTS and requested from Frank Shinn that PPI be assigned 1-800-JUSTICE for 800 inbound wide-area telephone service. PPI claims that LDTS confirmed that it had control over the number and that the number was available, but that PPI would have to purchase the number for $200,000. According to PPI, Goodman did not agree to pay this amount, but explained that his business plan for 1-800-JUSTICE would generate significant revenues for LDTS as the carrier for long distance calls to the number. PPI alleges that Frank Shinn responded to this proposal by informing Goodman that LDTS was not yet prepared to provide 800 service, but would hold the requested number for PPI "and would contact Goodman when it was possible to initiate service." PPI adds that Shinn stated "that Goodman (or anyone else) could 'purchase' all of the numbers in the 800-587 exchange for $2 million." In his declaration, Goodman concludes that, following this conversation, "there was absolutely no doubt that the 1-800-JUSTICE number was reserved for me on behalf of Patients Plus." 8. Defendants admit that Frank Shinn spoke with Goodman in early 1991, but assert that no request was made at that time for assignment of the 1-800-JUSTICE number. Instead, defendants claim that Goodman telephoned Shinn and merely stated that "he was the owner of 1- 800-JUSTICE," an apparent reference to PPI's trademark application for the number. Defendants also deny that Frank Shinn ever offered the number for sale. 9. The parties agree that no further contact between them occurred until September 1992, approximately 18 months after the telephone conversation between Goodman and Frank Shinn. At this time, a meeting was held in California attended by Mary Shinn, Tina and David Johnson, Pete Silver, and Goodman. The parties further agree that the meeting was arranged by Silver at the request of defendants to discuss the marketing of 800 toll-free numbers. 10. PPI asserts that in the course of this two-day meeting, Goodman inquired of defendants how they intended to "deal" with the Commission's new policies implementing 800 number portability. Goodman states that defendants responded by presenting him with new business cards bearing the name "Just Enterprises," and asserts that this was the first time he had ever heard of such an entity. Goodman further claims that defendants explained that JEI had been established for purposes of circumventing the Commission's 800 number portability rules, and that all valuable 800 numbers controlled by LDTS would be transferred to JEI for licensing to third party end-users. PIP asserts that the defendants then convinced Goodman to reveal to them numerous trade secrets relating to his marketing of 800 services. PPI concludes that the result of this meeting was that LDTS would activate the 1-800-JUSTICE number for PPI and that Goodman would consider a joint venture with defendants for purposes of developing the number. PPI asserts that none of the defendants' representatives ever stated or suggested that the number had already been assigned to JEI. 11. Defendants relate a very different version of the September 1992 meeting. They assert that the intent of this meeting was for JEI and Goodman to discuss a possible cooperative effort or joint venture for marketing the 1-800-JUSTICE number. Defendants describe this meeting as involving the sharing of "mutually beneficial information" toward a joint venture in which Goodman would assist JEI in developing and marketing "a number of 800 numbers" that JEI operated. Defendants admit that JEI representatives passed out business cards bearing the JEI name during this meeting, but assert that JEI (or its predecessor, Just Enterprise Group) had been in existence since at least May 1991. Defendants conclude that "there was never any representation to Mr. Goodman, at least by Mary Shinn, David Johnson, or Tina Johnson, that there would be any assignment away from JEI of the 1-800-JUSTICE number, as the primary purpose for their discussion was a possible joint venture between JEI and Mr. Goodman." They add that they decided not to work with Goodman following the September meeting when they learned he had already filed a trademark application for the 1-800-JUSTICE number. 12. The parties are in agreement that, following the September 1992 meetings, whatever working relationship existed between them deteriorated. PPI asserts that, in an effort to "salvage the relationship," Goodman sent a letter to JEI proposing a joint venture between the parties for utilizing the 1-800-JUSTICE number. PPI states that "Goodman made the offer because he was concerned that the LDTS group, which at that time exercised exclusive control over the 1-800- JUSTICE number, would not assign the number to Patients Plus unless he paid them some large sum of money." After receiving a response to this letter, in which JEI requested additional details on the proposed joint venture, PPI asserts that Goodman called Tina Johnson in order to reach agreement on his offer to pay defendants $500 per month, per area code for use of the 1-800-JUSTICE number. PPI alleges that Johnson responded by demanding $1,500 per month, per area code for use of the number. Following his discussion with Tina Johnson, and on advice of counsel, Goodman sent similar letters to JEI and LDTS in February 1993, "formally request[ing] that [defendants] immediately activate the 1-800-587-8423 to [Patients Plus], as we had originally talked about." 13. Defendants assert that these February 1993 letters constituted PPI's first formal request for the 1-800-JUSTICE number. JEI and LDTS responded to PPI's demand in separate but similar letters stating only that the requested number was not available for activation. Defendants assert that LDTS had in fact assigned the 1-800-JUSTICE number to JEI in May 1991. In their briefs, defendants rely for this assertion solely on the declarations of Mary Shinn and Tina Johnson. In the declaration submitted by Mary Shinn, however, she states that LDTS had assigned the number, "along with several 1-800-JUSTICE telephone numbers to the predecessor of JEI in January 1991." Neither the defendant's briefs nor the referenced declarations offer any contemporaneous documentation evidencing JEI's request for the number. Defendants further assert that, since January 1992, the 1-800-JUSTICE number has been activated in JEI's name and its personnel have been using the number to make and receive phone calls. 14. Shortly after receiving defendants' letters refusing assignment of the number, PPI filed an informal complaint with the Commission alleging, inter alia, that LDTS had set up JEI in order to avoid the Commission's rules for 800 toll-free numbers, and had offered to sell Goodman the right to use the 1-800-JUSTICE number. The Commission served this informal complaint on defendants, and defendants filed responses denying the allegations. The Commission took no further action on the informal complaint. PPI subsequently filed a civil action against defendants in federal district court in California alleging violations of Sections 201 and 202 of the Act. Defendants assert, and PPI does not deny, that this complaint was never properly served on defendants and no subsequent action was taken. The parties have also fought this dispute before the United States Patent and Trademark Office ("PTO"), where JEI filed in opposition to PPI's request for registration of 1-800-JUSTICE as a service mark. The PTO proceeding was stayed pending the results of this complaint proceeding. C. The Commission's Toll-Free Numbers Rulemaking 15. The Commission has recently completed a rulemaking proceeding to ensure that toll- free numbers are allocated on a fair, equitable, and orderly basis. In initiating that proceeding, the Commission expressed its long-standing policy against the establishment of ownership interests in toll free telephone numbers and stated: The Commission has characterized telephone numbers as a public resource that is not the property of the carriers. The Commission has further stated that carriers "do not 'own' codes or numbers, but rather administer their distribution for the efficient operation of the public switched telephone network." Additionally, the Commission tentatively concluded "that warehousing of toll-free numbers by communications service providers subject to Title II of the Communications Act is an unreasonable practice, and, thus, inconsistent with the public interest." 16. In January 1996, the Common Carrier Bureau ("Bureau"), pursuant to delegated authority, issued the First Report and Order to address issues involved in the implementation of the new 888 toll-free numbers. Among other conclusions, the Bureau determined that a "first come, first served" reservation policy best served the public interest because it is simple, efficient, and less expensive to administer than other reservation schemes. The Bureau also expressed its reliance upon the existing Industry Guidelines for Toll Free Number Administration which state: Toll Free numbers are not to be treated as commodities which can be bought or sold, and no individual or entity is granted a proprietary interest in any Toll Free number assigned. RespOrgs and Toll Free Service Providers are prohibited from selling, brokering, bartering, or releasing for a fee (or other consideration) any Toll Free number. 17. On April 11, 1997, following the submission of briefs in this proceeding, the Commission released the Second Report and Order, which, inter alia, set forth the Commission's policies regarding the warehousing and brokering of toll-free numbers. Among its findings, the Commission concluded that warehousing "is an unreasonable practice under [section] 201(b) and is also inconsistent with our obligation under [section] 251(e)(1) to ensure that numbers are made available on an equitable basis." The Commission further concluded that "hoarding, defined as the acquisition of more toll-free numbers than one intends to use for the provision of toll-free service, as well as the sale of a toll-free number by a private entity for a fee, is contrary to the public interest in conservation of the scarce toll-free number resources and contrary to the [Commission's] responsibility to promote the orderly use and allocation of toll-free numbers." III. DISCUSSION 18. In its formal complaint, filed pursuant to Section 208 of the Act, PPI asserts that defendants' conduct violated several provisions of the Act. First, PPI alleges that the refusal of each defendant to assign to PPI the 1-800-JUSTICE number after being requested to do so violated Section 201(a) of the Act requiring carriers to furnish communications services upon reasonable request. Next, PPI asserts that in offering to sell PPI the use of the number, each defendant violated Section 201(b) of the Act, which prohibits common carriers from offering communications services on rates, terms or conditions that are unjust or unreasonable. Third, PPI alleges that each defendant engaged in unreasonable discrimination, in violation of Section 202(a) of the Act, by offering JEI 800 toll-free service on rates, terms and conditions that were more favorable than those offered to PPI or others. Finally, PPI alleges that the defendants violated the Commission's policies implementing 800 number portability by assigning numerous toll-free numbers to a closely held entity, thereby preventing PPI and other customers from having access to those numbers. 19. Upon reviewing the record, it is clear that this complaint involves a contract dispute between two parties whose efforts to undertake a joint venture were unsuccessful. Although each party's version of events exhibits inconsistencies and contradictions, it is the complainant which bears the burden of proving its case. We find it has not done so. A. Section 201(a) Claim 1. Contentions. 20. PPI's claim under Section 201(a) of the Act asserts that defendants failed to honor PPI's proper and timely request for the 1-800-JUSTICE number, and instead improperly assigned the number to JEI. PPI asserts that Goodman first requested the number from LDTS, a common carrier, in February 1991 and was assured of the number's availability and that it would be reserved for PPI. Therefore, LDTS' subsequent assignment of the number to its close affiliate, JEI, breached its obligation under Section 201(a) by refusing to provide service upon reasonable request. As to JEI, complainant asserts that it violated Section 201(a) either as the alter ego of LDTS, or as a common carrier in its own right, by refusing to provide PPI service on the 1-800-JUSTICE number. 21. Defendants respond that JEI requested and was assigned the number in May 1991, while PPI did not request assignment of the number until February 1993. Therefore, they claim, LDTS was not able to provide service on the number to PPI, since the number had already been assigned. Defendants add that JEI is a separate and distinct corporate entity from LDTS, and that PPI has provided no basis for finding JEI to be the "alter ego" of LDTS or for "piercing the corporate veil." 2. Decision. 22. The linchpin of PPI's allegations under Section 201(a) is that it was entitled to the 1- 800-JUSTICE number because Goodman was the first to request its assignment. The parties are in agreement that the "Commission has traditionally held that toll-free service access codes should be reserved on a 'first come, first served' reservation policy as adopted in the Industry Guidelines." Indeed, in the Toll Free Access First Report and Order, the Commission recognized that long- standing Industry Guidelines adopted a "first come, first served" reservation policy for toll-free numbers, and found that this was the most equitable means for distributing such numbers. 23. We find, however, that complainant has failed to prove that it made a timely request for the 1-800-JUSTICE number. First, PPI has offered no evidence to substantiate its claim that Goodman requested assignment of the number in February 1991. Rather, PPI's sole support for this allegation is Goodman's declaration that, following the February telephone call with Frank Shinn, "there was absolutely no doubt in Goodman's mind that the 1-800-JUSTICE number was reserved for Patients Plus." In light of the totality of evidence in this matter, including defendants' declarations to the contrary, Goodman's declaration is insufficient to satisfy PPI's burden of proof. Given that PPI has stated that the number could "generate as much as $100,000 to $200,000 per month in revenues," it is not unreasonable to expect that Goodman would have evidenced in writing his claimed understanding with LDTS. Indeed, holding PPI to such a standard is particularly reasonable in light of the fact that it holds Goodman out as a highly experienced businessman and business consultant. Instead, however, PPI did nothing to confirm this oral arrangement during the subsequent 18-month period. 24. Moreover, PPI's assertion in this regard is contradicted by other statements in its own briefs. For example, PPI asserts that Frank Shinn told Goodman during the January 1991 conversation that he could have the 1-800-JUSTICE number only if he purchased it for $200,000, but that Goodman did not agree to pay this sum. PPI adds that Shinn concluded that conversation by stating that "Goodman (or anyone else) could 'purchase' all of the numbers in the 800-587 exchange for $2 million." Also in his September 1992 letter to JEI, Goodman refers to his proposal for a joint venture relating to "your [JEI's] 'Just' prefixes" and offered to pay JEI $500 per month, per area code for use of the number. These statements are hardly consistent with the notion that the number was already committed to PPI. We also find it hard to understand why Mr. Silver's services were required by defendants in order to set up a meeting with Goodman, if in fact Goodman and Shinn had already reached a business arrangement for assignment of the number. 25. Even more persuasive, however, are the inconsistencies between PPI's allegations in this respect and its statements in previous proceedings arising from this dispute. For example, in its interrogatory responses in the parties' trademark proceeding, PPI describes the relationship between Goodman and Silver as follows: In the summer of 1992, Mr. Silver contacted Mr. Goodman again by telephone about the 1-800-587-[JUSTICE] phone number. Mr. Silver indicated that he had been hired to act as a consultant to LDTS with respect to the phone number. Mr. Silver indicated that LDTS was interested in licensing out the phone number and wanted to come to Santa Rosa, California to meet with Mr. Goodman. Mr. Silver further indicated that LDTS wanted to have Mr. Goodman market the number through PPI. . . . In those [September 1992] meetings, LDTS discussed licensing the phone number to PPI. And in its complaint filed in federal district court, PPI describes the September 1992 meeting as follows: Mary Shinn, and Tina and Dave Johnson met with Mr. Goodman and Pete Silvers [sic], an independent consultant, on or about September 11, 1992 in Santa Rosa, California for the purpose of discussing the proposed joint venture. Mary Shinn served as the lead negotiator for LDTS and Just Enterprises. During that meeting, which took place over several days, Ms. Shinn represented that the 1-800-JUSTICE number was available and that [LDTS and JEI] were interested in utilizing that number in connection with PPI's 1-800-Justice mark and marketing concepts. She indicated that the joint venture would be between a company related to LDTS called Just Enterprises, Inc. and PPI. These prior characterizations of the September 1992 meeting by PPI indicate that, at that time, PPI did not believe it had a pre-existing right to assignment of the number. Nowhere does PPI assert that it challenged defendant's stated rights over the number, and, indeed, PPI's continued participation in these discussions indicates its concordance with these rights. 26. Instead, the weight of the evidence in the record supports the likelihood that the parties in late 1992 were merely engaged in negotiations for a possible joint venture to market the 1-800-JUSTICE number. We find that when the parties were unable to reach agreement on the proposed joint venture, PPI for the first time issued a formal request for assignment of the number. We further find that, at some date prior to this formal request, LDTS had assigned the number to JEI and JEI was utilizing the number in its business. Indeed, PPI offers no evidence to challenge defendants' claim that the number was in use by JEI prior to the September 1992 meeting between the parties. Accordingly, we conclude that PPI has no entitlement to the number under a "first come, first served" policy, and therefore defendants' refusal to provide service on that number was not unreasonable. B. Section 202(a) Claim 1. Contentions. 27. With respect to Section 202(a), PPI asserts that LDTS was obligated to treat all customers in the same manner by assigning 800 numbers on a "first come, first served" basis. PPI alleges that, to the extent that JEI was acting as the alter ego of LDTS, and was simply created to circumvent the Commission's rules, LDTS was discriminating in favor of itself when it assigned the number to JEI despite PPI's earlier request. Alternatively, PPI argues that if JEI is a separate entity, then LDTS discriminated in favor of JEI and to the detriment of PPI. 28. Defendants respond that LDTS did, in fact, assign the number on a "first come, first served" basis, and that JEI made the earliest request. Accordingly, there was no discriminatory treatment. LDTS adds that if JEI is deemed its alter ego, than complainant has failed to show that JEI and PPI are similarly situated customers, as required for a violation of Section 202(a). 2. Decision. 29. A three-prong test has been adopted by the Commission for determining whether a violation of Section 202(a) has occurred. First, the Commission must determine whether the services at issue are like one another, and second, whether there is disparate pricing or treatment between like services. Third, if disparate pricing or treatment is found to exist, the Commission must decide whether such disparity is justified and, therefore, not unreasonable. In a Section 208 complaint proceeding, the complainant has the evidentiary burden of establishing that the services are like and that discrimination exists between them. Once discrimination is established, the burden shifts to the defendant to show that the discrimination is reasonable. 30. Although PPI has satisfied the first prong of this test by showing that both the service provided to JEI and the service requested by PPI were the same (e.g., toll-free service on the 1-800- JUSTICE number), PPI has failed to meet its second evidentiary burden of showing discriminatory treatment. For the reasons stated in connection with its Section 201(a) claims, PPI has failed to demonstrate that it requested assignment of the 1-800-JUSTICE number prior to the date the number was assigned to, and placed in service by, JEI. Therefore, there is no showing that LDTS applied other than a "first come, first served" assignment policy to both PPI and JEI. Because PPI has failed to demonstrate disparate treatment, we need not reach the third step of evaluating the reasonableness of the alleged discriminatory practice, and PPI's claims under Section 202(a) must fail. C. Section 201(b) Claim 1. Contentions. 31. PPI alleges that defendants violated Section 201(b) of the Act by offering to provide service on the 1-800-JUSTICE number at an unjust or unreasonable price. PPI asserts that defendants offered to provide this service only at a price of $1,500 per month, per area code, or approximately $200,000 per month for nationwide service. PPI adds that any agreement that would have prohibited PPI from switching to another carrier without losing its toll-free number would have been inconsistent with the Commission's 800 number portability rules. 32. Defendants deny charging or demanding the alleged rates for providing 800 service to PPI. JEI also replies that it is not a common carrier and does not provide communications services. LDTS argues that Commission policy assumes that non-dominant carriers such as itself are subject to effective competition, and therefore LDTS could not have charged an unlawful rate for 800 service. 2. Decision. 33. Section 201(b) of the prohibits unjust or unreasonable "charges, practices, classifications, and regulations for and in connection with . . . communication service. . ." Because we find that PPI has failed to demonstrate that defendants charged or sought to charge an unfair or unreasonable rate for the provision of communications services, we deny PPI's claim asserting violations of Section 201(b). 34. First, we find that PPI has failed to meet its burden of proving the alleged demand for payment from LDTS or JEI. The only evidence PPI offers of defendant's demand is Goodman's declaration, which we find unpersuasive. PPI claims that this demand was made orally by Tina Johnson in response to Goodman's efforts to see if the parties could reach agreement on the proposal in Goodman's letter of September 30, 1996. The terms of that letter, however, propose a joint venture between the parties for the marketing of the 1-800-JUSTICE number. The letter proposes that PPI and JEI would split "the basic servicemark licensing fees of 1-800-JUSTICE per area code," from which they would "both enjoy approximately $500 per area code per month from the roll- out." While the precise significance of this offer is not clear, it is apparent that Goodman was proposing a joint venture in which the parties would somehow share in the profits. Thus, even if we were to accept that Tina Johnson demanded $1,500 as a counteroffer to Goodman's proposal, we would find that it was in the context of the proposed joint venture rather than merely for assignment of the 1-800-JUSTICE number. Accordingly, PPI has not shown that either defendant demanded an unreasonable charge in connection with the provision of a communications service, as necessary to prove a violation of Section 201(b) of the Act. D. The Commission's 800 Rules 1. Contentions. 35. Throughout its briefs, PPI alleges generally that defendants' conduct violated the Commission's rules and policies regarding toll-free numbers. PPI asserts that defendants created JEI as a vehicle to circumvent the Commission's policies for portability of 800 toll-free numbers by assigning to JEI all or most of the vanity numbers within the 1-800-587 exchange. PPI argues that such conduct is inconsistent with stated Commission policy that 800 numbers are valuable public resources that are not owned by carriers, and that the warehousing and hoarding of 800 numbers is undesirable. 36. Defendants deny that JEI was created for the purpose of evading Commission policies. LDTS also argues that the Commission did not have rules which would proscribe warehousing of 800 numbers at any time relevant to this complaint. LDTS adds that the Toll Free Access NPRM, which is the basis for PPI's argument, makes no final finding concerning the issue of warehousing numbers. 2. Decision. 37. As discussed above, Commission policy prohibits the warehousing, hoarding, and brokering of toll-free numbers. Although some of these policies may have only recently been enunciated by the Commission, they reflect long-standing Commission policy that toll-free telephone numbers are a public resource that is not the property of either the carrier or the subscriber. Accordingly, we are not restricted from finding the alleged conduct to be an unreasonable practice in violation of Commission rules merely because it occurred prior to the recent rulemaking proceeding. 38. We have already found, however, that the 1-800-JUSTICE number was assigned to JEI prior to a formal request for that number from PPI, that JEI was using the number in conjunction with its business activities, and that PPI has failed to prove that defendants demanded an unreasonable charge for assignment of the number. Although a finding that toll-free numbers have been activated and used by a subscriber does not preclude a finding that the subscriber has engaged in warehousing or hoarding, PPI has also failed to provide sufficient evidence from which we could find that JEI had activated the number for other than legitimate business purposes. Thus PPI has not sufficiently demonstrated that defendants violated Commission policies concerning the assignment and use of toll-free numbers. IV. OTHER MATTERS 39. Complainant has moved to strike certain allegedly defamatory statements concerning Goodman that are contained in the Mary Shinn Declaration and referenced in defendants' Reply Briefs. We find that the personal attacks made in these statements are irrelevant to the dispute and unsubstantiated. We therefore grant PPI's motion to strike from the record paragraph 14 of the Mary Shinn Declaration and all references thereto. 40. Defendant JEI moved to dismiss on the grounds it is not a common carrier and therefore not subject to any obligations placed upon such carriers by the Act. PPI has responded with evidence which it claims demonstrates that JEI provides or holds itself out as providing common carrier service, either on its own or as the alter ego of LDTS, and should accordingly be subject to the provisions of the Act. Because the relief requested is made moot by this Order, however, we will dismiss JEI's motion without resolving its status under Section 208. V. CONCLUSION AND ORDERING CLAUSES 41. For the reasons stated above, we conclude that complainant has failed to sustain its burden of proof in its attempt to show that defendants violated Sections 201(a), 201(b) or 202(a) of the Act. 42. Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 4(j), 201, 202, and 208 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i, 154(j), 201, 208, and the authority delegated in Sections 0.91 and 0.291 of the Commission's rules, 47 C.F.R.  0.91, 0.291, that the above-captioned complaint filed by Patients Plus, Inc. IS DENIED. 43. IT IS FURTHER ORDERED that the Motion to Strike filed by complainant Patients Plus, Inc. IS GRANTED. 44. IT IS FURTHER ORDERED that the Motion to Dismiss filed by defendant Just Enterprises, Inc. IS DISMISSED. FEDERAL COMMUNICATIONS COMMISSION Mary Beth Richards Deputy Chief, Common Carrier Bureau