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K`i K`"i~'^#)0<\4  pG;P:% ,J:\  P6G;JP<R&HHH,~!,H6X@`7h@\{,W80,-BZW*f9 xr G;X ?xxx,DΡx6Nhez7XH\0_=5,-&_*f9 xr G;&XW!@(#,h@\  P6G;hP\5hC:,-rXh*f9 xr G;XX?xxx,Sx `7X^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//2! X' E S'` `  hhCqpp ā S' "Federal Communications Commission  XDA 971831   yxdddy` ` + #o\  PCynXP##X\  P6G;ɒP##Xj\  P6G;ynXP#Before the [ FEDERAL COMMUNICATIONS COMMISSION  X'KWashington, D.C. 20554 #&a\  P6G;u&P# c  Xk4#Xj\  P6G;ynXP#PATIENTS PLUS, INC.,,hh]) ` `  ,hh])  X=4Complainant, ,hh]) ` `  ,hh])  X4v.` `  ,hh])pp&File No. E9464  X4` `  ,hh])pp&File No. E9465  X 4LONG DISTANCE TELECOMMUNICATIONS)  X 4SERVICE, INC., and,hh])  X 4JUST ENTERPRISES, INC.,hh]) ` `  ,hh])  X 4Defendants. ,hh])  X@'   MEMORANDUM OPINION AND ORDER    X'c ` ` Adopted: August 25, 1997ppReleased: August 28, 1997  X4 By the Deputy Chief, Common Carrier Bureau:  X'R I. INTRODUCTION c` `  X4 (  I. A. 1. a.(1)(a) i) a) I. 1. 1. a.(1)(a) i) a)в1.` ` In this Memorandum Opinion and Order, we address formal complaints filed by  !pPatients Plus, Inc. ("PPI") alleging that defendants Long Distance Telecommunications Service,  !<Inc. ("LDTS") and Just Enterprises, Inc. ("JEI") (collectively "defendants") improperly withheld  !Ifrom PPI assignment of the vanity tollfree telephone number, "1800JUSTICE," in violation of  X,4 !Sections 201(a), 201(b), and 202(a) of the Communications Act of 1934, as amended (the "Act").,{ O4ԍ` ` #]\  PCɒP#47 U.S.C.  201(a)(b), 202(a).#x6X@KX@#ѥ  !"PPI requests a Commission order directing the transfer of the 1800JUSTICE number to PPI,  !and requiring defendants to pay PPI damages allegedly incurred as a consequence of their  X4 !Rviolations, as well as attorneys' fees incurred in bringing   this complaint.hh{ O"4 (  Ѝ` ` #]\  PCɒP#Pursuant to Section 1.722 of the Commission's rules, 47 C.F.R.  1.722(b), complainant PPI  ! reserved in its complaint the right to file a supplemental complaint for damages after liability has been determined.  yO#'Complaint at 13, 1516. #x6X@KX@#ѩ For the reasons set forth below, we deny PPI's request. "0*((``Q"  X0 II. BACKGROUND  X0?  X0?K A.qThe Parties   X0 ` q2.` ` Complainant PPI is a closelyheld corporation incorporated in California. O@ԍ` ` #]\  PCɒP#Initial Brief of Complainant Patients Plus, Inc., File No. E9464 & 65 ("PPI Brief"), at 6.#x6X@KX@# PPI is  @ engaged in the marketing of certain services using tollfree numbers. In particular, PPI developed  Pand marketed a dental referral service using the tollfree number 1800DENTIST. Robert  Goodman is the President of PPI and is described in complainant's briefs as a widelyrecognized  X10"guru" of 800 number marketing.1h OJ @ԍ` ` #]\  PCɒP##]\  PCɒP#Id. at 67.#x6X@KX@#ѷ  X 0 ` q3.` ` Defendant LDTS is a common carrier incorporated and located in Missouri.  O@ ` PЍ` ` #]\  PCɒP#Initial Brief of Long Distance Telecommunications Service, Inc., File No. E9464 ("LDTS Brief"),  yO at 2, 4.#x6X@KX@# 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  X 0Mary Shinn, who also act as its president and vicepresident, respectively. p O@ ` Ѝ#]\  PCɒP#` ` Id. Frank and Mary Shinn also claim to be the principals of a partnership called Research  Consultants, which allegedly provided unspecified assistance to JEI. LDTS Brief at 4. In the course of events  leading to this dispute, LDTS assert that the Shinns were sometimes acting on behalf of LDTS and sometimes on  behalf of Research Consultants. LDTS Brief at 46. Specifically, the Shinns claim to have been acting on behalf  {O  of Research Consultants when they retained Pete Silver in August, 1992. See n. 25, infra. Defendants have failed,  however, to provide any evidence of the existence of Research Consultants, nor suggested how their dual roles were   to be differentiated in their relations with third parties. For example, Mary Shinn declares that she and her husband  {Oi  met with Mr. Silver as owners of LDTS (Shinn Declaration, infra., at para. 9), but goes on to state that she wrote  {O3  a check to Mr. Silver at the end of that meeting on behalf of Research Consultants (Id. at para. 18). Yet when  defendants complained to Mr. Silver that they did not feel they were receiving the services he had promised, it was  {O  in a letter signed by the Johnsons and Mary Shinn on JEI letterhead. See PPI Brief at Exhibit I. The Shinns'  pmultiple roles are further confused by Mr. Silver's unrebutted assertion that the check written by Mary Shinn was  on a personal account, rather than the account of any of the previously noted businesses. Silver Declaration at para.  O@10.#x6X@KX@# ĺ  X0 ` q4.` ` Defendant JEI is a Missouri corporation owned by David and Tina Johnson.P O"@ԍ` ` #]\  PCɒP#Initial Brief of Just Enterprises, Inc., File No. E9465 ("JEI Brief"), at 1.#x6X@KX@# JEI  was incorporated in January, 1992, and is the successor to the Just Enterprises Group, a"y0*&&``"  X0 partnership also owned by the Johnsons.b My@ԍ` ` #]\  PCɒP#Id. b 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  X0 Pin any way as a long distance carrier." f O@ԍ` ` #]\  PCɒP#Reply Brief of Just Enterprises, Inc., File No. E9465 ("JEI Reply"), at 19.#x6X@KX@# JEI specifically denies that it is a "carrier" or "common  X0carrier" as defined in Section 3(h) of the Act.  Or@ԍ` ` #]\  PCɒP#JEI Brief at 11; see 47 U.S.C.  153(h).#x6X@KX@#Ѱ  X0 ` q5.` ` Complainant asserts, and defendants do not deny, that Tina and David Johnson are  Xv0  the daughter and soninlaw of the Shinns. v O @ԍ` ` #]\  PCɒP#Reply Brief of Complainant Patients Plus, Inc., File Nos. E9464 & 65 ("PPI Reply"), at 16.#x6X@KX@# Complainant also asserts that corporate registration  X_0 Pdocuments show that the Shinns were directors of JEI at all times relevant to this dispute.E _F OV@ `  Ѝ` ` #]\  PCɒP#PPI Brief at 23. See Exhibit Q to JEI Brief (JEI Certificate of Incorporation, Articles of  Incorporation and Annual Registration Report). These documents indicate that JEI was incorporated by Frank Shinn,  and that both Frank and Mary Shinn were directors of JEI during 1992 and 1993, including at all times relevant to  `this complaint. In light of these documents, it is difficult to comprehend JEI's unqualified statement that "[t]he  {O  stockholders, directors, and officers of LDTS and JEI have no persons or entities in common." JEI Brief at 12  yOP (emphasis added).#x6X@KX@#E  Defendants admit that JEI's vicepresident, Tina Johnson, served as "general manager" of LDTS  X10  from 1991 until at least May 1992, 1  O@ ` Ѝ` ` #]\  PCɒP#JEI Reply at 17; Reply Brief of Long Distance Telecommunications, Inc., File No. E9464 ("LDTS  yO Reply"), at 15.#x6X@KX@# while complainant further alleges that Tina Johnson was also  X 0an officer and director of LDTS from at least June 1991 until July 1993. 8 O@ԍ` ` #]\  PCɒP#PPI Brief at 2325.#x6X@KX@#ђ  X 0 B.qThe Dispute   X 0 ` q6.` ` Prior to the advent of 800 number portability, LDTS requested and was assigned  X 0 access to the 1800587 exchange of 800 tollfree numbers.vR  O0 @ ` 0Ѝ` ` #]\  PCɒP#LDTS Brief at 2. Prior to the implementation of the current SMS data base system, carriers routed  traffic using the "NXX system," under which a single carrier was assigned all numbers within a particular "NXX"  code. Calls were then routed to the appropriate interexchange carrier ("IXC") based upon the NXX code in the  0dialed 800 number. In order to allow customers to change IXCs while retaining their 800 tollfree numbers, known  0as "800 number portability," the LECs deployed a new technology that could route 800 calls to each customer's  preferred IXC by consulting a central data base containing routing information for all 800 subscribers. Because the  data base system eliminated the need to associate each 800NXX with a single carrier, carriers were expected to  {O%   release all available 800 numbers into the database when the new system was initiated in May 1993. See Provision"%0*&&%"  {O  0of Access for 800 Service, Report and Order, 4 FCC Rcd 2824 (1989), recon., 6 FCC Rcd 5421 (1991), further  {OZ recon., 8 FCC Rcd 1038 (1993).v This included the number 1800" $0*&&``"ԫ 5878423, which can be used to spell the vanity number 1800JUSTICE ("1800JUSTICE" or  X0 "the number").h$ O@ ` Ѝ` ` #]\  PCɒP#Indeed, the "587" NXX numbers can be used to spell any word or phrase beginning with the letters  "JUS" or "JUST." Although not reflected in the record, we presume this is the origin of the business name of  yO^ defendant Just Enterprises, Inc.#x6X@KX@#Ѭ 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  X0of each side's version of the facts.  X0  X0 ` q7.` ` The parties agree that the first contact between them occurred in February 1991.T O @ԍ` ` #]\  PCɒP#PPI Brief at 2; LDTS Reply at 4; JEI Reply at 4.  PPI claims that its president, Goodman, called LDTS and requested from Frank Shinn that PPI  X_0 be assigned 1800JUSTICE for 800 inbound widearea telephone service.m_ O@ԍ` ` #]\  PCɒP#PPI Brief at 2.m PPI claims that  LDTS confirmed that it had control over the number and that the number was available, but that  X10 PPPI would have to purchase the number for $200,000.1  Ov@ԍ` ` #]\  PCɒP#Id. at 9.#x6X@KX@#ю According to PPI, Goodman did not  0 agree to pay this amount, but explained that his business plan for 1800JUSTICE would generate  significant revenues for LDTS as the carrier for long distance calls to the number. PPI alleges  0that 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  X 0 (or anyone else) could 'purchase' all of the numbers in the 800587 exchange for $2 million." 4  O@ԍ` ` #]\  PCɒP#Id. at 910.#x6X@KX@#ё  In his declaration, Goodman concludes that, following this conversation, "there was absolutely  Xy0no doubt that the 1800JUSTICE number was reserved for me on behalf of Patients Plus."-y  O@ ` Ѝ#]\  PCɒP#` ` Declaration of Robert D. Goodman on Behalf of Complainant Patients Plus at  10 (Exhibit A to  yO PPI Brief) ("Goodman Declaration").#x6X@KX@#-  XK0 ` q8.` ` Defendants admit that Frank Shinn spoke with Goodman in early 1991, but assert  X40 `that no request was made at that time for assignment of the 1800JUSTICE number.x4< O!#@ԍ#]\  PCɒP#` ` LDTS Reply at 4; JEI Reply at 4.x Instead,  `defendants claim that Goodman telephoned Shinn and merely stated that "he was the owner of  `1800JUSTICE," an apparent reference to PPI's trademark application for the number. "0*&&``"  X0Defendants also deny that Frank Shinn ever offered the number for sale.~ Oy@ԍ` ` #]\  PCɒP#LDTS Reply at 4; JEI Reply at 4.~  X0 ` q9.` ` The parties agree that no further contact between them occurred until September  1992, approximately 18 months after the telephone conversation between Goodman and Frank  X0 Shinn.h O@ԍ#]\  PCɒP#` ` PPI Brief at 13; LDTS Brief at 5; JEI Reply at 8.#x6X@KX@#Ѱ At this time, a meeting was held in California attended by Mary Shinn, Tina and David  X0 @Johnson, Pete Silver, and Goodman. OF @ ` 0Ѝ#]\  PCɒP#` ` PPI Brief at 13; LDTS Brief at 5; JEI Reply at 8. The origin of this meeting was an August, 1992  {O  meeting in Florida attended by Frank and Mary Shinn, Tina and David Johnson and Pete Silver. See PPI Brief at  1112; JEI Reply at 67. Mr. Silver's role in this conflict is strongly disputed by the parties. For examle, defendants  Passert that Mr. Silver was acting as an undisclosed agent of Goodman when he first contacted them in 1992.  Nonetheless, all parties agree that Silver suggested and arranged for the September 1992 meeting. PPI Brief at 12;  JEI Brief at 7; LDTS Brief at 5. The issue of Mr. Silver's specific role is not important to the disposition of this  yO complaint. #x6X@KX@# The parties further agree that the meeting was arranged  Xv0by Silver at the request of defendants to discuss the marketing of 800 tollfree numbers.vZ  O@Ѝ` ` #]\  PCɒP#PPI Brief at 12; Declaration of Mary Shinn at  18 (Exhibit B to JEI Brief) ("Shinn Declaration").#x6X@KX@#  XH0 ` Pq 10.` ` PPI asserts that in the course of this twoday meeting, Goodman inquired of  @defendants how they intended to "deal" with the Commission's new policies implementing 800  X 0 0number portability.  O@ԍ` ` #]\  PCɒP#PPI Brief at 14; see, supra, n. 15.#x6X@KX@#Ѵ 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  X 0  to third party endusers.n  O@ԍ` ` #]\  PCɒP#PPI Brief at 14.n PIP asserts that the defendants then convinced Goodman to reveal to  X0 them numerous trade secrets relating to his marketing of 800 services.: O{@ԍ` ` #]\  PCɒP#Id. at 15.#x6X@KX@#я PPI concludes that the  result of this meeting was that LDTS would activate the 1800JUSTICE number for PPI and that  p Goodman would consider a joint venture with defendants for purposes of developing the number.  p PPI asserts that none of the defendants' representatives ever stated or suggested that the number  X40had already been assigned to JEI.4 O$@ԍ` ` #]\  PCɒP#Id. at 1415.#x6X@KX@#ђ "z0*&&``"Ԍ X0 ` pq 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  X0 0effort or joint venture for marketing the 1800JUSTICE number.y OK@ԍ` ` #]\  PCɒP#LDTS Brief at 5; JEI Brief at 8. y Defendants describe this  @meeting as involving the sharing of "mutually beneficial information" toward a joint venture in  Pwhich Goodman would assist JEI in developing and marketing "a number of 800 numbers" that  X0 0 JEI operated. h O@ԍ` ` #]\  PCɒP#LDTS Brief at 56; JEI Brief at 8.#x6X@KX@#ѡ 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  X_0 been in existence since at least May 1991.!_ O @ԍ` ` #]\  PCɒP#LDTS Brief at 56; JEI Brief at 2, 8. Defendants conclude that "there was never any  Prepresentation to Mr. Goodman, at least by Mary Shinn, David Johnson, or Tina Johnson, that  @there would be any assignment away from JEI of the 1800JUSTICE number, as the primary  X 0  purpose for their discussion was a possible joint venture between JEI and Mr. Goodman.""  Os@ԍ` ` #]\  PCɒP#LDTS Brief at 6; JEI Brief at 9.#x6X@KX@#џ They  add that they decided not to work with Goodman following the September meeting when they  X 0learned he had already filed a trademark application for the 1800JUSTICE number.# H O@ԍ#]\  PCɒP#` ` LDTS Brief at 6; JEI Brief at 9.#x6X@KX@#џ  X 0 ` `q 12.` ` The parties are in agreement that, following the September 1992 meetings,  X 0 whatever working relationship existed between them deteriorated.$  O@@ԍ` ` #]\  PCɒP#PPI Brief at 1620; LDTS Brief at 67; JEI Brief at 910.#x6X@KX@#Ѹ PPI asserts that, in an effort   to "salvage the relationship," Goodman sent a letter to JEI proposing a joint venture between the  Xy0 parties for utilizing the 1800JUSTICE number.%y  O@ԍ` ` #]\  PCɒP#PPI Brief at 17 and Exhibit G.#x6X@KX@#ѝ PPI states that "Goodman made the offer  Pbecause he was concerned that the LDTS group, which at that time exercised exclusive control  over the 1800JUSTICE 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 1800JUSTICE number. PPI alleges that Johnson responded by demanding $1,500 per  X0 month, per area code for use of the number.&(  O#@ԍ#]\  PCɒP#` ` Id. at 1718.#x6X@KX@#ђ Following his discussion with Tina Johnson, and  pon advice of counsel, Goodman sent similar letters to JEI and LDTS in February 1993, "formally  `request[ing] that [defendants] immediately activate the 18005878423 to [Patients Plus], as we" &0*&&```"  X0had originally talked about."' Oy@ԍ` ` #]\  PCɒP#Id. at 20 and Exhibit L.#x6X@KX@#ѝ  X0 ` @q 13.` ` Defendants assert that these February 1993 letters constituted PPI's first formal  X0 request for the 1800JUSTICE number.(h O@ԍ` ` #]\  PCɒP#JEI Reply at 5; LDTS Reply at 4.#x6X@KX@#џ JEI and LDTS responded to PPI's demand in separate  X0 @but similar letters stating only that the requested number was not available for activation.) O] @ԍ` ` #]\  PCɒP#PPI Brief at 29 and Exhibits M and N; see LDTS Brief at 7; JEI Brief at 10.#x6X@KX@#  PDefendants assert that LDTS had in fact assigned the 1800JUSTICE number to JEI in May  Xv0 @ 1991.*v O @ԍ` ` #]\  PCɒP#LDTS Brief at 2, 8; JEI Brief at 2.#x6X@KX@#Ѣ In their briefs, defendants rely for this assertion solely on the declarations of Mary Shinn  X_0  and Tina Johnson.+_H OX@ԍ` ` #]\  PCɒP#LDTS Brief at 2, 8; JEI Brief at 2. In the declaration submitted by Mary Shinn, however, she states that LDTS  had assigned the number, "along with several 1800JUSTICE telephone numbers to the  X10 predecessor of JEI in January 1991.",1 O@ԍ` ` #]\  PCɒP#Shinn Declaration at  6 (emphasis added).#x6X@KX@#Ѭ Neither the defendant's briefs nor the referenced  X 0  declarations offer any contemporaneous documentation evidencing JEI's request for the number.-  OU@ ` `Ѝ#]\  PCɒP#` ` The record does include a onesentence letter from LDTS to Just Enterprises dated May 6, 1991,   which was filed as part of the parties' supplement to the record before briefing of the issues. This letter to Tina  0Johnson and signed by Mary Shinn reads in whole: "This is to inform you Just Enterprises was voted by the Board   of LDTS to have the exclusive marketing rights for 1800587xxxx which has 1 800 587 8423 which spells 1800 JUSTICE." We note that although this letter purports to assign certain rights to the entire 1800587 exchange, it  specifically identifies only the 1800JUSTICE number even though it is dated more than a year before this  {O  controversy arose. This language is also virtually identical to that in an accompanying letter dated October 26, 1992,  which was sent by Mary Shinn to JEI's trademark counsel confirming the assignment of the number to JEI. And,  @as noted above, it is inconsistent with Mary Shinn's sworn declaration that the assignment took place in January  1991. In any event, because it is not referenced in any of their briefs, defendants have apparently chosen not to rely  yO7 on this letter to support their claims.#x6X@KX@#  ` Defendants further assert that, since January 1992, the 1800JUSTICE number has been activated  X 0 `in JEI's name and its personnel have been using the number to make and receive phone calls.`.  O @ ` Ѝ` ` #]\  PCɒP#JEI Brief at 2; Declaration of Tina Johnson at  5 (Exhibit C to JEI Brief) ("Johnson Declaration").  Johnson adds in her December 10 declaration that it had previously requested nationwide activation of the number,  and was informed by LDTS in February 1992 that such service was possible; that the number was finally activated   nationwide in September 1992; and that, although JEI still owns the right to use the number nationwide, it has  voluntarily blocked calls to the number which originate outside Missouri, New York and Canada. Johnson Declaration  yO$  a#]\  PCɒP#t  6. Johnson also states that JEI's plan in obtaining the number was to use it to develop a legal referral service  {OY% business, and that it has in fact utilized the number in its efforts to develop this business idea.  Id. at  7.#x6X@KX@#` " L.0*&&`` "  X0 ` q 14.` ` Shortly after receiving defendants' letters refusing assignment of the number, PPI  X0 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 tollfree numbers, and had offered to sell  X0 Goodman the right to use the 1800JUSTICE number./ O@ԍ` ` #]\  PCɒP#PPI Brief at 2021 and Exhibit O.#x6X@KX@#Ѡ The Commission served this informal  X0 complaint on defendants, and defendants filed responses denying the allegations.0h O@ԍ` ` #]\  PCɒP#JEI Brief at 10 and Exhibit H; see also PPI Reply at Exhibit B.#x6X@KX@# The  Xx0 Commission took no further action on the informal complaint.1x O1 @ ` 0Ѝ` ` #]\  PCɒP#JEI Brief at 10. PPI subsequently filed with the Commission a request for waiver of Section 1.718  @of the Commission's rules, 47 C.F.R.  1.718, providing that a complainant will be deemed to have abandoned its  informal complaint if a formal complaint is not filed within six months of the date of the carrier's response. The  Commission granted the request because there had been no disposition of the informal complaint prior to the request.  yOa PPI Reply at 67 and Exhibit B.#x6X@KX@# PPI subsequently filed a civil   action against defendants in federal district court in California alleging violations of Sections 201  XJ0 `and 202 of the Act.;2J O@ ` Ѝ` ` #]\  PCɒP#JEI Brief at 10; PPI Reply at 8; see Patients Plus, Inc. v. LDTS, et al., U.S. Dist. Ct. N.D. Cal.,  yO No. C93 2879 (filed Aug. 5, 1993).#x6X@KX@#; Defendants assert, and PPI does not deny, that this complaint was never  X30 properly served on defendants and no subsequent action was taken.330  O@ԍ#]\  PCɒP#` ` JEI Brief at 10.#x6X@KX@#я The parties have also  fought this dispute before the United States Patent and Trademark Office ("PTO"), where JEI  Pfiled in opposition to PPI's request for registration of 1800JUSTICE as a service mark. The  X 0PTO proceeding was stayed pending the results of this complaint proceeding.4  Oo@ԍ` ` #]\  PCɒP##]\  PCɒP#Id. at 4; see Just Enterprises, Inc. v. Patients Plus, Inc., US PTO TTAB, Opp. No. 91,019.#x6X@KX@#  X 0 C.qThe Commission's TollFree Numbers Rulemaking   X0 ` q15.` ` The Commission has recently completed a rulemaking proceeding to ensure that  X{0 tollfree numbers are allocated on a fair, equitable, and orderly basis.H5{p O@ ` Ѝ` ` #]\  PCɒP#Toll Free Service Access Codes, Second Report and Order, CC Docket No. 95155 (April 11, #]\  PCɒP#1997)  {Ot  ("Toll Free Access Second Report and Order"); see also Report and Order, 11 FCC Rcd 2496 (Com. Car. Bur. 1996)  {O>!  ("Toll Free Access First Report and Order"); Notice of Proposed Rulemaking, 10 FCC Rcd 13692 (1995) ("Toll Free  {O"  Access NPRM"). "Warehousing" occurs when a carrier obtains tollfree numbers without having an identified  subscriber for those reserved numbers. "Hoarding" occurs when a tollfree subscriber acquires more numbers than  {O#  it intends to use for the provision of tollfree service. "Brokering" is the buying and selling of numbers. Toll Free  {Od$ Access Second Report and Order, at notes 910.#x6X@KX@#H In initiating that  proceeding, the Commission expressed its longstanding policy against the establishment of"d50*&&``" ownership interests in toll free telephone numbers and stated:   XqThe 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  X0efficient operation of the public switched telephone network."/64 O@ ` Ѝ` ` #]\  PCɒP#Toll Free Access NPRM, 10 FCC Rcd at 13702 (citing Administration of the North American  {O  Numbering Plan, Report and Order, 11 FCC Rcd 2588 (1995); The Need to Promote Competition and Efficient Use  {O  of Spectrum for Radio Common Carrier Service, Memorandum Opinion and Order, 59 Rad. Reg. 2d 1275, 1284  yOr (1986)).#x6X@KX@#/    `qAdditionally, the Commission tentatively concluded "that warehousing of tollfree numbers  `by communications service providers subject to Title II of the Communications Act is an  X10unreasonable practice, and, thus, inconsistent with the public interest."71 O@ԍ` ` #]\  PCɒP#Toll Free Access NPRM, 10 FCC Rcd at 1307.#x6X@KX@#ѵ  X 0 ` 0q16.` ` In January 1996, the Common Carrier Bureau ("Bureau"), pursuant to delegated  X 0 0 authority, issued the First Report and Order to address issues involved in the implementation of  X 0 `the new 888 tollfree numbers.8 d O@ԍ` ` #]\  PCɒP#Toll Free Access First Report and Order, 11 FCC Rcd at 2496.#x6X@KX@# Among other conclusions, the Bureau determined that a "first   come, first served" reservation policy best served the public interest because it is simple, efficient,  X 0 ` and less expensive to administer than other reservation schemes.9  O^@ԍ` ` #]\  PCɒP#Id. at 2504#x6X@KX@#і The Bureau also expressed its reliance upon the existing Industry Guidelines for Toll Free Number Administration which state:  @XqToll 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  X0Toll Free number.:j  O]@ ` Ѝ#]\  PCɒP#` ` Id. at 2501; Industry Guidelines for Toll Free Number Administration ("Industry Guidelines"),  Section 2.2.1. "RespOrgs," or Responsible Organizations, are entities which are authorized to access the SMS data  {O base and are responsible for maintaining the accuracy of the information therein. See, supra, n. 15. #x6X@KX@#   X0 ` q17.` ` On April 11, 1997, following the submission of briefs in this proceeding, the  X0 @ Commission released the Second Report and Order, which, inter alia, set forth the Commission's  policies regarding the warehousing and brokering of tollfree numbers. Among its findings, the  P Commission concluded that warehousing "is an unreasonable practice under [section] 201(b) and" :0*&&``"  @ is also inconsistent with our obligation under [section] 251(e)(1) to ensure that numbers are made  X0 @ available on an equitable basis."; Ob@ԍ` ` #]\  PCɒP#Toll Free Access Second Report and Order, at para. 22.#x6X@KX@#ѻ The Commission further concluded that "hoarding, defined as  the acquisition of more tollfree numbers than one intends to use for the provision of tollfree  service, as well as the sale of a tollfree number by a private entity for a fee, is contrary to the  public interest in conservation of the scarce tollfree number resources and contrary to the  X0[Commission's] responsibility to promote the orderly use and allocation of tollfree numbers."<h O@ԍ` ` #]\  PCɒP#Id. at para. 39.#x6X@KX@#ѕ  X_0 ?  III. DISCUSSION ?  X10 ` ?Kq18.` ` In its formal complaint, filed pursuant to Section 208 of the Act,~=h1 O @ ` PЍ#]\  PCɒP#` ` 47 U.S.C.  208. Section 208 provides for the filing of a complaint with the Commission "by any  person . . . complaining of anything done or omitted to be done by any common carrier subject to this Act, in contravention of the provisions thereof." ~ 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 1800JUSTICE number after being requested to do so  violated Section 201(a) of the Act requiring carriers to furnish communications services upon  X 0 reasonable request.> 8 O@ԍ` ` #]\  PCɒP#PPI Brief at 3, 2631; see 47 U.S.C.  201(a).#x6X@KX@#Ѷ Next, PPI asserts that in offering to sell PPI the use of the number, each  pdefendant violated Section 201(b) of the Act, which prohibits common carriers from offering  X 0 communications services on rates, terms or conditions that are unjust or unreasonable.?  O0@ԍ` ` #]\  PCɒP#PPI Brief at 3, 3133; see 47 U.S.C.  201(b).#x6X@KX@#Ѷ Third,  PPI alleges that each defendant engaged in unreasonable discrimination, in violation of Section  202(a) of the Act, by offering JEI 800 tollfree service on rates, terms and conditions that were  Xb0 more favorable than those offered to PPI or others.@bx  O@ԍ` ` #]\  PCɒP#PPI Brief at 3, 3342; see 47 U.S.C.  202(a).#x6X@KX@#Ѷ Finally, PPI alleges that the defendants  violated the Commission's policies implementing 800 number portability by assigning numerous   tollfree numbers to a closely held entity, thereby preventing PPI and other customers from  X0having access to those numbers.A  O @ԍ` ` #]\  PCɒP#PPI Brief at 3, 42.#x6X@KX@#ђ q  X0 `  q19.` ` 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" A0*&&``P"  X0complainant which bears the burden of proving its case.B Oy@ ` Ѝ` ` #]\  PCɒP#See, e.g., Amendment of Rules Concerning Procedures to be Followed When Formal Complaints  {OQ  are Filed Against Common Carriers, 8 FCC Rcd 2614, 261617 (1993); Connecticut Office of Consumer Counsel  {O  v. AT&T Communications, 4 FCC Rcd 8130, 8133 (1989), aff'd sub nom. Connecticut Office of Consumer Counsel  {O  v. FCC, 915 F.2d 75 (2d Cir. 1990), cert. denied, 111 S. Ct. 1310 (1991): also Directel, Inc. v. AT&T, 11 FCC Rcd 7554, 7560 (Com. Car. Bur. 1996). We find it has not done so.  X0 A.qSection 201(a) Claim   X0q 1.` ` Contentions.  Xv0 `  q20.` ` PPI's claim under Section 201(a) of the Act asserts that defendants failed to honor  PPI's proper and timely request for the 1800JUSTICE number, and instead improperly assigned  XH0 the number to JEI.iChH O@ ` Ѝ` ` #]\  PCɒP#PPI Brief at 2631. Section 201(a) of the Act requires "every common carrier engaged in interstate  or foreign communications by wire or radio to furnish such service upon reasonable request therefor . . . " 47 U.S.C.  201(a).i 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  X 0  request.lD  O[@ԍ` ` #]\  PCɒP#PPI Brief at 2627. l 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 X 0800JUSTICE number.E ^  O@ԍ` ` #]\  PCɒP#Id. at 2631, 4344; PPI Reply at 14.#x6X@KX@#Ѫ  X0 ` q21.` ` Defendants respond that JEI requested and was assigned the number in May 1991,  Xy0  while PPI did not request assignment of the number until February 1993.Fy  O(@ԍ` ` #]\  PCɒP#LDTS Brief at 89.#x6X@KX@#ё Therefore, they claim,  LDTS was not able to provide service on the number to PPI, since the number had already been  p 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  X0corporate veil."G  Ol"@ԍ` ` #]\  PCɒP#Id.; JEI Brief at 14.#x6X@KX@#њ " >G0*&&``P"  X0q 2.` ` Decision.  X0 ` q22.` ` The linchpin of PPI's allegations under Section 201(a) is that it was entitled to the  X0 1800JUSTICE number because Goodman was the first to request its assignment.rH O4@ԍ` ` #]\  PCɒP#PPI Brief at 2731, 3334.r The parties  pare in agreement that the "Commission has traditionally held that tollfree service access codes  should be reserved on a 'first come, first served' reservation policy as adopted in the Industry  Xv0 0Guidelines."Ivh O @ԍ` ` #]\  PCɒP#LDTS Brief at 8; see PPI Brief at 31, 33.#x6X@KX@#Ѯ Indeed, in the Toll Free Access First Report and Order, the Commission   recognized that longstanding Industry Guidelines adopted a "first come, first served" reservation  policy for tollfree numbers, and found that this was the most equitable means for distributing  X30such numbers.J3 O @ԍ` ` #]\  PCɒP#Toll Free Access First Report and Order, 11 FCC Rcd at 2501.#x6X@KX@#  X 0 ` q23.` ` We find, however, that complainant has failed to prove that it made a timely  request for the 1800JUSTICE 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 1800JUSTICE  X0 number was reserved for Patients Plus."KV O@ ` Ѝ` ` #]\  PCɒP#PPI Brief at 10; Goodman Declaration at  10. PPI's only other evidence in the record on this  0point is the declaration of Pete Silver. PPI Brief at Exhibit B ("Silver Declaration"). If anything, however, Silver's  `declaration undercuts PPI's position because, in describing the August 1992 meeting with defendants, it relates a  {OS  future intent to assign the number. Id. at  12 ("I eventually learned that LDTS intended to assign the 1800 JUSTICE number to Goodman's company." (emphasis added)). Moreover, it appears that this recollection is at least  {O  Ppartly based on Mr. Silver's conversations with Goodman. Id.  In any event, we find Silver's declaration to be vague  {O  and generally unhelpful to the determination of this matter.#]\  PCɒP# See, e.g., Silver Declaration at  4 (describing his  yOy inquiry to Frank Shinn as to the availability of the number as occurring in "1991 or 1992").#x6X@KX@# In light of the totality of evidence in this matter,   including defendants' declarations to the contrary, Goodman's declaration is insufficient to satisfy  Xd0 `PPI's burden of proof.FL2d  O@ ` Ѝ` ` #]\  PCɒP#On this point, we note that the parties were given unusually broad discretion to supplement the  {O  record with any information they wished the Commission to consider in its decision on the merits. See Letters from  pDeena M. Shetler, Commission counsel, to the parties, dated October 21, 1996; November 12, 1996; and December  yOE! 3, 1996 (File Nos. E9464 & 65).#x6X@KX@#F Given that PPI has stated that the number could "generate as much as  XM0 $100,000 to $200,000 per month in revenues,"MM O#@ԍ` ` #]\  PCɒP#PPI Brief at 1415.#x6X@KX@#ј 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" `M0*&&``p"  X0  highly experienced businessman and business consultant.EN Oy@ ` Ѝ` ` #]\  PCɒP#Id. at 68 (detailing Goodman's development of the 1800DENTIST business and describing him  yOQ as a "widely recognized 'guru' of 800 number marketing").#x6X@KX@#E Instead, however, PPI did nothing to  X0confirm this oral arrangement during the subsequent 18month period.O0 O@ԍ` ` #]\  PCɒP#Id. at 916.#x6X@KX@#ё  X0 ` q24.` ` 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  X0 conversation that he could have the 1800JUSTICE number only if he purchased it for $200,000,  0but that Goodman did not agree to pay this sum. PPI adds that Shinn concluded that  Xa0 Pconversation by stating that "Goodman (or anyone else) could 'purchase' all of the numbers in  XL0 the 800587 exchange for $2 million."PL O @ԍ` ` #]\  PCɒP#Id. at 10 (emphasis added).#x6X@KX@#Ѡ Also in his September 1992 letter to JEI, Goodman  X50 refers to his proposal for a joint venture relating to "your [JEI's] 'Just' prefixes" and offered to  X 0 @pay JEI $500 per month, per area code for use of the number.Q p OA@ԍ` ` #]\  PCɒP#Id. at 1718 and Exhibit G (emphasis added).#x6X@KX@#ѱ 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  X 0assignment of the number.oR0  O@ ` Ѝ` ` #]\  PCɒP#Compare PPI Brief at 9 (asserting that during their February 1991 telephone conversation Frank   Shinn told Goodman "he would contact Goodman when it was possible to initiate service"); PPI Brief at 1112  ("According to Mary Shinn, 'Mr. Silver's . . . ability to put [them] in touch with Mr. Goodman so promptly resulted  yO in [Mary Shinn] writing a check for onehalf of Mr. Silver's consulting fee [$10,000].'")#x6X@KX@#o  X0 ` 0q25.` ` 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:  XqIn the summer of 1992, Mr. Silver contacted Mr. Goodman again by telephone  @about the 1800587[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.  X0 Silver indicated that LDTS was interested in licensing out the phone number and  pwanted 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"  R0*&&``"  X0the phone number to PPI.US Oy@ ` PЍ` ` #]\  PCɒP#Applicant's Answer to Opposer's Second Set of Interrogatories, USPTO TTAB, Opposition No.  {OQ 91,019 (January 11, 1994) at 2 (emphasis added); see para. 14, supra.#x6X@KX@#U   PAnd in its complaint filed in federal district court, PPI describes the September 1992 meeting as follows:  XqMary Shinn, and Tina and Dave Johnson met with Mr. Goodman and Pete Silvers  p[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  0served as the lead negotiator for LDTS and Just Enterprises. During that meeting,  which took place over several days, Ms. Shinn represented that the 1800 X 0 JUSTICE number was available and that [LDTS and JEI] were interested in  utilizing that number in connection with PPI's 1800Justice mark and marketing  X 0 Pconcepts. She indicated that the joint venture would be between a company  X 0related to LDTS called Just Enterprises, Inc. and PPI.#T 2 O@ ` Ѝ` ` #]\  PCɒP#Patients Plus, Inc. v. LDTS, et al., U.S. Dist. Ct. N.D. Cal., No. C93 2879. (Aug. 5, 1993) at para.  {O 19 (emphasis added); see para. 14, supra.#   X 0 These prior characterizations of the September 1992 meeting by PPI indicate that, at that time,  PPI did not believe it had a preexisting 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.  X:0 ` q26.` ` 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  X 0 the 1800JUSTICE number.U  OY@ ` 0Ѝ` ` #]\  PCɒP#See, e.g., Silver Declaration at para. 15 ("The [September 1992] discussion turned to the possibility  of a joint venture between [defendants] and Bob [Goodman] for the development of 1800JUSTICE"); PPI Brief  at Exhibit G (Goodman letter to Tina Johnson dated September 30, 1992; "In regard to 800JUSTICE, I propose that  under my jurisdiction we enter a joint venture . . ."); PPI Brief at Exhibit H (Johnson letter to Goodman dated  {O October 26, 1992); also, supra, para. 25.#x6X@KX@# 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  X0  number.V^  O!@ԍ` ` #]\  PCɒP#See PPI Brief at Exhibit L (letter from Goodman to Johnson dated February 15, 1993).#x6X@KX@# We further find that, at some date prior to this formal request, LDTS had assigned the  X0 number to JEI and JEI was utilizing the number in its business.W  Ov$@ԍ#]\  PCɒP#` ` #]\  PCɒP#JEI Brief at 23; Johnson Declaration at para. 57. Indeed, PPI offers no evidence  to challenge defendants' claim that the number was in use by JEI prior to the September 1992" W0*&&``"  X0 meeting between the parties.!X Oy@ ` Ѝ#]\  PCɒP#` ` JEI Brief at 23; Johnson Declaration ar para. 57. While we are not convinced that the assignment  took place in May 1991, as asserted by defendants, we do find that the assignment had taken place prior to  September 1992. We note that while PPI asserts that Goodman had never heard of JEI until the September 1992  meeting, it also provides a certificate of incorporation demonstrating that JEI was incorporated in January 1992. PPI  `Brief at 14 and Exhibit Q. Even if we accept PPI's assertion that LDTS created JEI solely for the purpose of  {Oq  circumventing the Commission's 800 number portability rules, see PPI Brief at 41, this suggests that the number  yO; would have been assigned near the time of the company's creation well before PPI's formal request.#x6X@KX@#! 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.  X0 B.qSection 202(a) Claim   Xv0q 1.` ` Contentions.  XH0 ` q27.` ` With respect to Section 202(a), PPI asserts that LDTS was obligated to treat all  X10 customers in the same manner by assigning 800 numbers on a "first come, first served" basis.qY01 O@ ` Ѝ` ` #]\  PCɒP#PPI Brief at 33. Section 202(a) of the Act makes it "unlawful for any common carrier to make   any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for  or in connection with like communication service . . . or to make or give any undue or unreasonable preference or  yOd advantage to any particular person or class of persons . . ." 47 U.S.C.  202(a).#x6X@KX@#q   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  X 0is a separate entity, then LDTS discriminated in favor of JEI and to the detriment of PPI.Z   O@ԍ` ` #]\  PCɒP#Id. at 3342.#x6X@KX@#ђ  X 0 ` @q28.` ` Defendants respond that LDTS did, in fact, assign the number on a "first come,  X0 first served" basis, and that JEI made the earliest request.[  O@ԍ` ` #]\  PCɒP#LDTS Reply at 1719.#x6X@KX@#ѓ 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  XK0Section 202(a).\KR ON!@ԍ#]\  PCɒP#` ` Id. at 19.#x6X@KX@#я "\0*&&``P"  X0q 2.` ` Decision.  X0 ` q29.` ` A threeprong test has been adopted by the Commission for determining whether  X0 a violation of Section 202(a) has occurred.\] O4@ ` Ѝ` ` #]\  PCɒP#See, e.g., PanAmSat Corp. v. COMSAT Corp., FCC 97172, at para. 34 (rel. May 20, 1997); see  {O  also MCI Telecommunications Corp. v. FCC, 917 F.2d 30, 39 (D.C. Cir. 1990).#x6X@KX@#\ 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  Xv0 must decide whether such disparity is justified and, therefore, not unreasonable.^v2 MY @ԍ` ` #X\  P6G;ɒP#Id.#x6X@`7X@#ш In a Section  0208 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,  X10the burden shifts to the defendant to show that the discrimination is reasonable._1 O@ԍ#]\  PCɒP#` ` PanAmSat, supra, at para. 34.#x6X@KX@#Ѣ  X 0 ` pq30.` ` Although PPI has satisfied the first prong of this test by showing that both the  X 0 service provided to JEI and the service requested by PPI were the same (e.g., tollfree service on  X 0 `the 1800JUSTICE number),` p O@ԍ` ` #]\  PCɒP#See Toll Free Access First Report and Order, 11 FCC Rcd at 2501.#x6X@KX@# PPI has failed to meet its second evidentiary burden of showing  X 0 Pdiscriminatory treatment.a  O@ԍ` ` #]\  PCɒP#See, supra, para. 29.#x6X@KX@#Ѧ For the reasons stated in connection with its Section 201(a) claims,  PPI has failed to demonstrate that it requested assignment of the 1800JUSTICE number prior  X0 0to the date the number was assigned to, and placed in service by, JEI.b  O@ԍ` ` #]\  PCɒP#See, supra, paras. 2326.ĉ Therefore, there is no  showing that LDTS applied other than a "first come, first served" assignment policy to both PPI  Xd0 P and JEI.;cdP  Oe@ԍ` ` #]\  PCɒP#See, supra, para. 22; also Toll Free Access First Report and Order, 11 FCC Rcd at 2501, 2504  yO= (adopting "first come, first served" reservation policy).#x6X@KX@#; 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  X60under Section 202(a) must fail.cd6  O!@ ` Ѝ` ` #]\  PCɒP#Nor is this conclusion altered by PPI's assertion that JEI should be considered the "alter ego" of  pLDTS. Because PPI has failed to demonstrate that it made a prior request for the number, it has not shown that  {O?#  defendants have engaged in any type of discrimination in favor of themselves in assigning the number. Accordingly,  we need not consider whether an affiliated JEI and PPI would be "similarly situated customers" for purposes of  {O$  Section 202(a). See, e.g., Implementation of the Local Competition Provision in the Telecommunications Act of 1996,  pFirst Report and Order, 11 FCC Rcd 15499, 15612 (1996) (finding that "nondiscriminatory" for purposes of Section"%c0*&&%"  yO 251 of the Act applies to terms and conditions a carrier imposes on third parties as well as on itself).#x6X@KX@#c "6Xd0*&&``"Ԍ X0ԙ C.qSection 201(b) Claim   X0q 1.` ` Contentions.  X0 ` 0q31.` ` PPI alleges that defendants violated Section 201(b) of the Act by offering to  X0 provide service on the 1800JUSTICE number at an unjust or unreasonable price.eX O@ԍ` ` #]\  PCɒP#PPI Brief at 3133; see 47 U.S.C.  201(b). #x6X@KX@#Ѵ PPI asserts   that defendants offered to provide this service only at a price of $1,500 per month, per area code,  0or 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 tollfree number  X10would have been inconsistent with the Commission's 800 number portability rules.Af1 O @ ` PЍ` ` #]\  PCɒP#PPI Brief at 3233 (citing 800 Presubscription Rules for 800 Providers and Responsible  {O Organizations, 8 FCC Rcd 7315 (Com. Car. Bur. 1993)).#x6X@KX@#A  X 0 ` q32.` ` Defendants deny charging or demanding the alleged rates for providing 800 service  X 0 @to PPI.Og b O@ ` Ѝ` ` #]\  PCɒP#JEI Reply at Exhibit H (JEI's response to PPI's informal complaint); LDTS Reply at 20; also PPI  yO Brief at Exhibit W (LDTS' response to PPI's informal complaint).#x6X@KX@#O JEI also replies that it is not a common carrier and does not provide communications  X 0 Pservices.h  OP@ԍ` ` #]\  PCɒP#JEI Brief at 1112.#x6X@KX@#ђ LDTS argues that Commission policy assumes that nondominant carriers such as  itself are subject to effective competition, and therefore LDTS could not have charged an  X 0unlawful rate for 800 service.ii j  O@ԍ` ` #]\  PCɒP#LDTS Reply at 20.i  Xy0q 2.` ` Decision.  XK0 ` q 33.` ` Section 201(b) of the prohibits unjust or unreasonable "charges, practices,  X40 Pclassifications, and regulations for and in connection with . . . communication service. . ."j4  O@ԍ` ` #]\  PCɒP#47 U.S.C.  201(b).#x6X@KX@#ѕ  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).  X0 ` q!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" j0*&&`` "  X0  Goodman's declaration, which we find unpersuasive.^k Oy@ ` Ѝ` ` #]\  PCɒP#PPI Brief at 1718. PPI seeks to bolster this claim by referencing another informal complaint filed  {OQ   with the Commission in November 1992 by a person identified as Lin Golden.  See PPI Brief at Exhibit P. In the  Golden letter, the complainant claims that JEI demanded $1,200 per month, per area code for provision of 800  {O  services.  Id. As PPI states in its brief, Golden's complaint "is remarkably similar" to that of PPI.  Id. at 21.  `Nonetheless, because there is no evidence as to the origin or validity of this informal complaint, we give it little  yOu probative value.#x6X@KX@#^ PPI claims that this demand was made  porally by Tina Johnson in response to Goodman's efforts to see if the parties could reach  X0 agreement on the proposal in Goodman's letter of September 30, 1996.lT O @ԍ` ` #]\  PCɒP#PPI Brief at 18.#x6X@KX@#я The terms of that  letter, however, propose a joint venture between the parties for the marketing of the 1800 JUSTICE number. The letter proposes that PPI and JEI would split "the basic servicemark  licensing fees of 1800JUSTICE per area code," from which they would "both enjoy  Xv0 approximately $500 per area code per month from the rollout."mv O@ԍ` ` #]\  PCɒP#Id. at Exhibit G.#x6X@KX@#і 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 1800JUSTICE   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  X 0of Section 201(b) of the Act.n  O@ ` Ѝ` ` #]\  PCɒP#47 U.S.C.  201(b); see, e.g., PanAmSat Corp. v. ComSat Corp., FCC 97172, at para. 7 (rel. May  yO 20, 1997).#x6X@KX@#  X 0  X 0 D.qThe Commission's 800 Rules   Xy0q 1.` ` Contentions.  XK0 ` q"35.` ` Throughout its briefs, PPI alleges generally that defendants' conduct violated the   Commission's rules and policies regarding tollfree numbers. PPI asserts that defendants created  PJEI as a vehicle to circumvent the Commission's policies for portability of 800 tollfree numbers  X0 by assigning to JEI all or most of the vanity numbers within the 1800587 exchange.o  O!@ԍ` ` #]\  PCɒP#PPI Brief at 30, 4142 (citing Toll Free Service NPRM, 10 FCC Rcd 13692 (1995)).#x6X@KX@# 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" o0*&&`` "  X0of 800 numbers is undesirable.p My@ԍ` ` #]\  PCɒP#Id.#x6X@KX@#ш  X0 ` q#36.` ` Defendants deny that JEI was created for the purpose of evading Commission  X0 policies.qf O@ԍ` ` #]\  PCɒP#LDTS Brief at 89.#x6X@KX@#ё LDTS also argues that the Commission did not have rules which would proscribe  X0 warehousing of 800 numbers at any time relevant to this complaint. LDTS adds that the Toll  X0 Free Access NPRM, which is the basis for PPI's argument, makes no final finding concerning  Xz0the issue of warehousing numbers.rz O1 @ԍ` ` #]\  PCɒP#LDTS Reply at 1617.#x6X@KX@#ѓ  XL0q 2.` ` Decision.  X 0 ` pq$37.` ` As discussed above, Commission policy prohibits the warehousing, hoarding, and  X 0 brokering of tollfree numbers.s  O^@ԍ` ` #]\  PCɒP#See, supra, paras. 1517. Ą Although some of these policies may have only recently been  X 0 enunciated by the Commission,t F O@ԍ` ` #]\  PCɒP#Toll Free Access Second Report and Order at paras. 22, 39.#x6X@KX@#ѿ they reflect longstanding Commission policy that tollfree  telephone numbers are a public resource that is not the #V|t X0x` `  hh@hpp āՑproperty of either the carrier or the  X 0 subscriber.u  OY@Ѝ` ` #]\  PCɒP#See Toll Free Access NPRM, 10 FCC Rcd at 13702; see also Industry Guidelines, Section 2.2.1.#x6X@KX@# 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.  XO0 ` q%38.` ` We have already found, however, that the 1800JUSTICE 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  X 0 an unreasonable charge for assignment of the number.v   OA @ԍ` ` #]\  PCɒP#See paras. 26, 34, supra.#x6X@KX@#Ѥ Although a finding that tollfree  `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 "#V|"other than legitimate"& v0*&&``P"  X0 P[x X0 w Federal Communications Commission  DA 971834  yxdddyq` ` Đ X0 q` `   ["#V|!x"business purposes.wjR Oy@ ` Ѝ` ` #]\  PCɒP#See Toll Free Access Second Report and Order at paras. 3840. The Commission there stated that  Pnominally placing numbers in service would not prevent it from finding that a subscriber was hoarding the number.  {O Id. at para. 40.#x6X@KX@#Ѭ Thus PPI has not sufficiently demonstrated that defendants violated  X0Commission policies concerning the assignment and use of tollfree numbers.|xTR O@ ` Ѝ#]\  PCɒP#` ` This finding is, of course, limited to the evidence presented in the record and does not preclude  the Commission from reaching a different conclusion if presented with sufficient evidence that LDTS or JEI are or  have engaged in warehousing, hoarding, or brokering of tollfree numbers. We note that the potential penalties for  0both carriers and subscribers who engage in such conduct are severe, including forfeiture under Section 503(b) of  {O  @the Act and decertification as a RespOrg. See Toll Free Access Second Report and Order, at paras. 29, 42. The  Commission may also refer violations of Commission rules and regulations under the authority of the Act to the  `Department of Justice to determine whether a fine, imprisonment, or both are warranted under Sections 501 and 502  {O of the Act. Id.; see 47 U.S.C.  501, 502.#x6X@KX@#|  X0? IV. OTHER MATTERS ?  X0 ` @?K q&39.` ` Complainant has moved to strike certain allegedly defamatory statements  pconcerning Goodman that are contained in the Mary Shinn Declaration and referenced in  X_0 0defendants' Reply Briefs.y_ R O&@ԍ` ` #]\  PCɒP#Shinn Declaration at  14; LDTS Reply at 9; JEI Reply at 11.#x6X@KX@#Ѿ 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.  X 0 `  q'40.` ` Defendant JEI moved to dismiss on the grounds it is not a common carrier and  X 0 therefore not subject to any obligations placed upon such carriers by the Act.z R OS@ԍ` ` #]\  PCɒP#JEI's Motion to Dismiss, File No. E9465 (June 22, 1994).#x6X@KX@#ѹ 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  X 0  accordingly be subject to the provisions of the Act.{ VR O@ԍ` ` #]\  PCɒP#PPI Brief at 4344.#x6X@KX@#ђ Because the relief requested is made moot  @by this Order, however, we will dismiss JEI's motion without resolving its status under Section 208.  Xb0 #x6X@KX@##o\  PCynXP#  X404 V. CONCLUSION AND ORDERING CLAUSES ?  X0 ` ?Kq(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"{0*%%ZZ0" 202(a) of the Act.  X0 ` q)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 abovecaptioned complaint filed by Patients Plus, Inc. IS DENIED.  X_0 ` `q*43.` ` IT IS FURTHER ORDERED that the Motion to Strike filed by complainant Patients Plus, Inc. IS GRANTED.  X 0 ` q+44.` ` IT IS FURTHER ORDERED that the Motion to Dismiss filed by defendant Just Enterprises, Inc. IS DISMISSED. q` `  hh,FEDERAL COMMUNICATIONS COMMISSION q` `  hh,Mary Beth Richards q` `  hh,Deputy Chief, Common Carrier Bureau