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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:I\\>>>\g0>03\\\\\\\\\\33gggQyyrg>Frgygrr>3>T\>Q\Q\Q>\\33\3\\\\>F3\\\\QX%Xc>0cT>>>0>>>>>>>>\3QQQQQwyQrQrQrQrQ>3>3>3>3\\\\\\\\\\Q\Z\\\g\QQQyQyQycyQtrQrQrQrQ\\\c\c\>3>\>>>\gcc\r3rIr>r>r3\l\\\\y>y>y>gFgFgFgcrMr3rT\\\\\\crQrQrQ\r>\gFr>\t0\\=!=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBT\>Q\\\\\3;\7;\7>>QQ\??n\\pBnnBmgg>Q\7"yyyy\njc\gnn\7jC:,9Xj\  P6G;XP7nC:,|Xn4  pG;XW!@(#,h@\  P6G;hPy.X80,X\  P6G;P\{,W80,%0W*f9 xr G;X\25hC:,%2Xh*f9 xr G;XX3z-X80,<<X9 xOG;2a=5,&a\  P6G;&P4^ 2BCSHAR1WPCSHHrB1 - MM N&o) 3`'^B(Z\ 22 X- 3'3'Standard3'3'Standard6326HL4MPCAD.PRSXj\ hڰ  X-X` hp x (#%'0*,.8135@8: z X"-ԍ#X\  P6G;P#X47 U.S.C.  271(c).(#v#x\  PC9XP# Although some of the requirements in the competitive checklist   under this section are parallel to the requirements in Section 251 of the Act, compliance with the   competitive checklist is evaluated in the context of a BOC's application to the Commission to   provide inregion, interLATA service. NYNEX's compliance with the requirements of the" 3 ,''JJp"   1competitive checklist, therefore, is not appropriately at issue in this formal complaint  X-proceeding.4$z Xy- .Ѝ#X\  P6G;P#XWe note, however, that a BOC must continue to comply with the requirements in the competitive checklist  kafter it receives Section 271 authority to provide inregion, interLATA service, and that failure to do so,  {O*- under certain circumstances, may be properly challenged by complaint. See 47 U.S.C.  271(d)(6). See  {O- Aalso 47 C.F.R.  1.736 (establishing procedure for complaints brought pursuant to 47 U.S.C.  271(d)(6)(B)).(#ƌ Accordingly, we deny INFONXX's Section 271 claim.  X- C.Section 201(b) Claim  X-   X- 1.` ` Contentions  Xv-  X_-  15.` ` INFONXX contends that antitrust law "mandates access by INFONXX to  XH-  NYNEX's complete database."p5Hz X -ԍ#X\  P6G;P#XComplaint at 15.(#p In its brief, but not in its complaint or reply, INFONXX also   contends that Section 201(b) of the Act "compels NYNEX to provide service under terms that   are just and reasonable," and that "NYNEX's provision of DA information to INFONXX is unjust  X -  and unreasonable under the antitrust laws."6{ ez X- ԍ#X\  P6G;P#XINFONXX Brief at 13 (citing 47 U.S.C.  201). Although INFONXX refers to Section 201 in its pleadings,   its allusions to "unjust and unreasonable" indicate that it is referring more specifically to Section 201(b).  {O-See 47 U.S.C.  201(b).(#Ǝ#x\  PC9XP# INFONXX further contends that the applicable   \antitrust principle is the "essential facility" or "bottleneck" element doctrine, under which a   monopolist in control of an essential facility must provide its competitors with reasonable access   to that facility. INFONXX insists that NYNEX's DA database is an essential facility because   NYNEX has total control over the DA database and competitors are unable to duplicate the DA  X-  xdatabase, and that NYNEX has refused to give "adequate" access to the complete DA database.x7 z X-ԍ#X\  P6G;P#XINFONXX Brief at 1516. (#x#x\  PC9XP#   jINFONXX also avers that denial of an essential facility can occur in the absence of an outright  Xb-  refusal to deal, if the terms of the offer to deal are unreasonable.8bY z Xl- ԍ#X\  P6G;P#XComplaint at 16 (citing Delaware & Hudson Ry. v. Consolidated Rail Corp., 902 F.2d 174, 17980 (2d Cir. 1990)).(##x\  PC9XP# Thus, asserts INFONXX,   because NYNEX provides only "limited access" to its DA database via EWP, "it could not be   said that NYNEX has given INFONXX meaningful access to the database necessary to compete  X-as a DA provider."i9 z X"-ԍ#X\  P6G;P#XId.(#i  X-  16.` ` NYNEX disagrees with INFONXX's claim that the antitrust laws require it to give   a copy of its DA database to INFONXX. NYNEX also insists that its DA database is not an" 9 ,''JJ"  X-  "essential facility," because access to it can be obtained through other means, i.e., its DADA  X-service.s:z Xd-ԍ#X\  P6G;P#XNYNEX Brief at 56.(#s  X- 2.` ` Decision  X-  #x\  PC9XP#17.` ` We find that INFONXX's claim is premature, and that it has not demonstrated a   jviolation of the antitrust laws, nor by reference, an unjust or unreasonable practice in violation  Xa-  of Section 201(b). Even assuming, arguendo, that NYNEX's DA database is an essential facility  XL-  as INFONXX claims,;CLyz Xv - \ԍ#X\  P6G;P#XAn "essential facility" has been defined as one that "is otherwise unavailable and cannot be 'reasonably or  {O_ - practically duplicated.'" Anaheim v. Southern California Edison Co., 955 F.2d 1373, 1380 (9th Cir. 1992).  yO) - Because we need not decide whether NYNEX's DA database is an essential facility to resolve the instant complaint, we decline to do so. (##x\  PC9XP# INFONXX fails to show that it has been denied reasonable access to the   .DA database. Of the three DA products offered by NYNEX DA service, EWP service, and   DADA service NYNEX purports to offer "access" to its DA database only through its DADA  X -  service.<  z X<- ԍ#X\  P6G;P#XNYNEX's tariffed DA service was intended to provide directory listings information to retail customers.  EWP service was intended to provide customers with electronic access to NYNEX's white pages listings.  !Thus, we agree with NYNEX that comparing its EWP service (and its DA service) to the access that  {O- NYNEX's own DA operators have to its DA database is like "comparing apples to oranges." See NYNEX  {O-Brief at 9. See also Complaint at 16 (acknowledging that EWP "was not designed for real time use"). (# However, INFONXX does not and never has subscribed to the DADA service; thus,   its argument that NYNEX's DADA service does not provide reasonable access to its DA database  X -  is speculative, and unpersuasive.K=y Y z X- ԍ#X\  P6G;P#XMoreover, INFONXX does not demonstrate that the cost or other terms and conditions associated with  DADA service are unjust or unreasonable, or that they preclude reasonable access to NYNEX's DA database.(#K Accordingly, we deny #x\  PC9XP#INFONXX's claims that NYNEX's practices violate antitrust laws, and are unjust or unreasonable in violation of Section 201(b).  X -  X-D.Remaining claims  X}-  Xf- 1.` ` Contentions  XO-  X8-  _18.` ` In its brief, but not in its complaint or reply, INFONXX avers that the Commission   should, pursuant to the nondiscrimination provisions in Section 202(a), "consider whether   NYNEX is providing wholesale DA service to INFONXX that is comparable to what it provides  X-  Kto itself."z>z X>%-ԍ#X\  P6G;P#XINFONXX Brief at 12.(#z#x\  PC9XP# Specifically, INFONXX states that "NYNEX is subjecting INFONXX to unreasonable   prejudice and disadvantage in the competition for DA business" by forcing INFONXX to rely on" K> ,''JJ"   zan inferior alternative to the database EWP service thus enabling NYNEX "to exploit its  X-  monopoly control of its database to maintain its dominant market position in DA service."?yz Xb- ԍ#X\  P6G;P#XId. at 13. See also Complaint at 17 (stating that "EWP access is inferior to the access NYNEX's own  operators have due to the way in which the information is formatted, the speed with which the information  yO-is presented and the way in which the names of unlisted numbers are presented").(##x\  PC9XP#   Moreover, INFONXX argues that even if information service providers like INFONXX do not   fit squarely into the 1996 Act's definitions, the Commission has authority under Section 202 "to   extend the protections and benefits of the 1996 Act to INFONXX in order to foster  X-competition."@ z XG -ԍ#X\  P6G;P#XINFONXX Brief at 22 (citing 47 U.S.C.  202).(#Ɩ  Xv-#x\  PC9XP#  X_-  19.` ` INFONXX further contends that the Act requires NYNEX to provide it with access   \to its DA database comparable to NYNEX's own access, and that "neither EWP nor DADA  X1-  provides access adequate to satisfy [S]ections 201 and 202."pA1z X-ԍ#X\  P6G;P#XId. at 16.(#p #x\  PC9XP# INFONXX also claims that it has   been harmed by NYNEX's allegedly "inferior" access because one of its largest customers  X -  notified INFONXX of its intent to terminate its contract with INFONXX.~B kz X-ԍ#X\  P6G;P#XSee Complaint Exhibit B.(#~#x\  PC9XP# Moreover, claims   INFONXX, NYNEX's DA database is essential to its provision of DA service, and, while it   .strives to minimize its reliance on NYNEX's DA database, its reliance "is unavoidable because   alternative listing sources do not and cannot match the accuracy of [NYNEX's] database that is  X -updated daily from local carrier customer lists."sC  z Xt-ԍ#X\  P6G;P#XINFONXX Brief at 4.(#s  X-#x\  PC9XP#  Xy-    20.` ` Although NYNEX acknowledges that its EWP service has experienced some   problems, NYNEX claims that INFONXX has "grossly exaggerated the extent of these problems   jand ignores the fact that some of the outages that it experienced were caused by failures in the  X4-  networks of the carriers that it uses to access the EWP computers."yD4 z X-ԍ#X\  P6G;P#XNYNEX Brief at 78.(#y#x\  PC9XP# According to NYNEX,   [between November 14, 1996 and June 6, 1997, EWP service was fully operational 99.63% of the  X-  time.E~ z X5"- ԍ#X\  P6G;P#XId. at 9. Even considering all of the outages documented by both parties (including scheduled maintenance  {O#- @work), NYNEX claims that its EWP service was fully operational at least 99.1% of the time. Id.  {O#- INFONXX does not dispute these figures in its reply brief. See INFONXX Reply Brief at 2 n.1 (stating  that "NYNEX's assertions that EWP was fully operational at least 99.63 % and 99.1% of the time are not  helpful because INFONXX's DA customers like NYNEX's customers expect high quality service 100% of the time"). (##x\  PC9XP# Moreover, NYNEX avers that INFONXX's complaints about the slow response times are" E ,''JJ "   Lequally without merit, because NYNEX's records show that the average response time to EWP   .queries ranged between 2.0 and 3.45 seconds (with an average response time of 3.09 seconds)  X-on the day that INFONXX filed its motion for interim relief.qFz XK-ԍ#X\  P6G;P#XNYNEX Brief at 9.(#q#x\  PC9XP#  X-#x\  PC9XP#  X- 2.` ` Decision  X-  Xv-  21.` ` We decline to address INFONXX's additional claims under Section 202(a)   specifically, and the Act generally, regarding the quality of access to NYNEX's DA database via  XH-  its EWP and DADA services.  Because INFONXX did not specifically allege these violations in  X1-  its complaint or its reply, they are not properly before us,Gy1yz X[ - @ԍ#X\  P6G;P#XSee 47 C.F.R.  1.720(a) (requiring complainants to plead fully and with specificity "[a]ll matters  Oconcerning a claim, defense or requested remedy"); 47 C.F.R.  1.721(a)(4) (requiring that formal complaints shall contain citation to the section of the Act alleged to have been violated).(#ƭ#x\  PC9XP# except to the extent that the same  X -arguments were raised in support of the claims discussed above.H- z X- ԍ#X\  P6G;P#XEven if these claims were properly before us, we are not persuaded that they would state a violation of the  Act. For example, INFONXX implies that Section 202(a) requires that NYNEX provide to INFONXX the  {O6- Msame nondiscriminatory access that is required under Section 251; this position is unsupported. See, e.g.,  {O- !Local Competition Order, 11 FCC Rcd at 15607 (stating that "Congress did not intend that the term  /'nondiscriminatory' in the 1996 Act be synonymous with 'unjust and unreasonable discrimination' used in  the 1934 Act, but rather, intended a more stringent standard"). In any event, INFONXX's evidence  regarding the reasonableness the disparity between NYNEX's access to its own DA database and  INFONXX's access to NYNEX's DA database through its EWP service, which primarily consists of descriptions of service outages, falls short of proving unjust or unreasonable discrimination by NYNEX.(#Ɲ#x\  PC9XP#  X -/} IV. CONCLUSION l  X -  lU22.` ` We conclude that INFONXX has failed to show that NYNEX must provide to it   >a copy of its directory assistance database. INFONXX has the option of gaining access to  X-  jNYNEX's directory listings by other means,I z X-ԍ#X\  P6G;P#XFor example, INFONXX could subscribe to NYNEX's DADA service.(#Ɲ and #x\  PC9XP#therefore is not, as a result of our findings in   [this decision, precluded from continuing to offer a competitive DA service in NYNEX's service region. For the reasons set forth in this Order, we deny INFONXX's formal complaint.   $I "4 `I ,''JJ "  X- $I 6 V. ORDERING CLAUSES l  X-  lU23.` ` Accordingly, IT IS ORDERED, pursuant to Sections 1, 4(i), 4(j), 201(b), 202(a),   208, 251, 271, and 272 of Act, as amended, 47 U.S.C.  151, 154(i), 154(j), 201(b), 202(a),   208, 251, 271, 272, and the authority delegated under Sections 0.91 and 0.291 of the   Commission's rules, 47 C.F.R.  0.91, 0.291, that the Formal Complaint filed by INFONXX IS DENIED.  S1-#n\  PC&P#` ` hh,VFEDERAL COMMUNICATIONS COMMISSION ` ` hh,VA. Richard Metzger, Jr. ` ` hh,VChief, Common Carrier Bureau  XA -#x\  PC9XP#