Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) BELL ATLANTIC NYNEX ) MOBILE, INC.,d/b/aCELLCO, ) PARTNERSHIP ) Complainant ) v. ) File No. WB/ENF-F-97-011 ) SNET CELLULAR, INC. ) Defendant ) MEMORANDUM OPINION AND ORDER Adopted: March 18, 1999 Released: March 19, 1999 By the Deputy Chief, Enforcement and Consumer Information Division Wireless Telecommunications Bureau: I. INTRODUCTION 1. The Deputy Chief, Enforcement and Consumer Information Division, Wireless Telecommunications Bureau, has before him: (a) a formal complaint, filed by Bell Atlantic NYNEX Mobile, Inc. ("BANM") on May 27, 1997, against SNET Cellular Inc. ("SNET"); (b) an Answer to BANM's complaint, filed by SNET on July 7, 1997; (c) a Motion to Dismiss the formal complaint, filed by SNET on July 7, 1997; (d) a Reply to SNET's answer, filed by BANM on July 21, 1997; and (e) an Opposition to SNET's motion to dismiss, filed by BANM on July 21, 1997. For the reasons set forth below, we conclude that BANM's complaint concerning SNET's use of a particular System Identification Number does not state a cause of action under the Communications Act of 1934, as amended. We therefore grant SNET's motion to dismiss the complaint with prejudice and terminate this proceeding. II. BACKGROUND 2. In 1992, Bell Atlantic acquired from Metro Mobile CTS a number of cellular systems in the New England area, including systems located in the Providence, Rhode Island MSA; Newport, Rhode Island RSA; and New Bedford, Massachusetts MSA. When the Commission initially granted the licenses, it authorized Metro Mobile CTS to use System Identification ("SID") No. 0119 for each of the three referenced cellular systems, and when the Commission transfered the licenses to BANM, BANM acquired SID No. 0119 for those licenses. In 1994, Bell Atlantic and NYNEX agreed to merge, and became known as BANM. SIDs are 15 bit binary numbers assigned to cellular systems. They are transmitted by cellular systems for identification so that cellular mobile stations may determine whether the system through which they are communicating is a system to which they subscribe; if not, they are considered to be roamers. 3. On November 22, 1994, BANM and SNET executed a Purchase-Sale Agreement (Agreement), in which BANM agreed to assign the licenses for the three referenced cellular systems to SNET. The parties filed applications for consent to the transfer of control of the licenses for the three systems on December 22, 1994, and the Commission subsequently granted the transfers on March 13, 1995. On April 7, 1995, BANM sent letters to SNET consenting to SNET's use of SID No. 0119 in the three cellular markets for one year from the date the parties closed on the transaction. On July 1, 1995, the parties consummated the assignments, at which time SNET became the licensee of the cellular systems in the Providence, Rhode Island MSA; Newport, Rhode Island RSA; and New Bedford, Massachusetts MSA. SNET commenced using SID No. 0119 in the three referenced markets, and BANM continued to use SID No. 0119 for the other New England area cellular systems of which it remained the licensee. 4. Approximately one year later, on July 16, 1996, BANM requested SNET "to confirm that SNET [had] obtained a new SID from the FCC for the Rhode Island market." SNET responded on July 24, 1996, that there was an implicit understanding that a SID change would be delayed because of discussions concerning a frequency swap. Thereafter, on August 12, 1996, BANM denied that there was any implicit agreement to extend the use of SID No. 0119, and it demanded that SNET obtain a new SID number within thirty days. By letter dated August 27, 1996, SNET asked for substantiation of the agreement under which SNET agreed to obtain a new SID number. Although the Agreement makes no specific reference to SID No. 0119 in any manner, the Agreement, at Article 2, does define the term "acquired assets." It is SNET's contention that the SID in question is an asset which transferred along with the other acquired assets as a part of the Agreement. 5. On May 27, 1997, BANM filed the instant formal complaint in which it alleges that SNET's continued use of SID No. 0119 violates Sections 22.941(a) and (b) of the Commission's Rules. In pertinent part, Section 22.941 of the Commission's Rules provides: (a) The FCC assigns one SID to each cellular system on its initial authorization. Cellular systems may transmit only their assigned SID(s) and/or the SIDs assigned to other cellular systems. A cellular system may transmit the SID assigned to another cellular system only if the licensee of that system concurs with such use of its assigned SID. [Emphasis added] (b) Licensees must notify the FCC (FCC Form 489) if their cellular systems transmit SIDs assigned to other cellular systems. The notification must indicate the concurrence of the licensee(s) of such other systems with this use of their assigned SID(s) . . . . BANM maintains that SNET is using SID No. 0119 in the three markets without BANM's concurrence, in violation of Section 22.941(a). Furthermore, BANM argues that SNET has failed to notify the Commission that it is transmitting SID No. 0119, in violation of Section 22.941(b). In addition, BANM asserts that SNET's use of SID No. 0119 is not in the public interest because BANM customers are unaware when they are being served by SNET, rather than the BANM system to which they had initially subscribed. According to BANM, SNET's use of SID No. 0119 also inhibits BANM from introducing technological advancements which would benefit its own consumers. BANM asks the Commission to enjoin SNET from further use of SID No. 0119 and award damages to BANM for SNET's unlawful use of that particular SID number. In its Answer and Motion to Dismiss, SNET argues that the dispute with BANM is a private contractual matter involving whether the SID number in question is an asset under the Agreement which transferred to SNET when the licenses for the three cellular systems were assigned. Accordingly, SNET maintains that the claims presented by BANM are beyond the Commission's jurisdiction. 6. Pursuant to the Commission's request, on September 30, 1997, the parties attended a settlement conference. They were unable to agree to any terms for a settlement. III. DISCUSSION 7. The gravamen of BANM's complaint is that, under Sections 22.941(a) and (b) of the Commission's Rules, SNET may not use SID No. 0119 in any of the three markets without BANM's express approval. Moreover, according to BANM, any approval that it may have given SNET to use SID No. 0119 has since expired. Accordingly, BANM argues that SNET's continued use of SID No. 0119 is without any legal basis and, thus, violates the Commission's Rules. 8. SNET, on the other hand, contends that because SID No. 0119 was not among the items that were specifically excluded from the list of acquired assets in the Agreement, it necessarily follows that SNET acquired SID No. 0119 as a consequence of the transaction. Thus, according to SNET, concurrence from BANM to use that particular SID is unnecessary. In any event, SNET maintains that the instant dispute over use of SID No. 0119 is a private contractual matter over which the Commission has no jurisdiction. Accordingly, SNET moves that the complaint be dismissed by the Commission. 9. We do not believe that SNET's use of SID No. 0119 constitutes a violation of Section 22.941(a) of the Commission's Rules. Under Section 22.941, a SID number is an attribute of a cellular system. When a cellular system is sold and the license for that system is assigned pursuant to Commission consent, the SID transfers with the system to the new licensee, absent an agreement to the contrary and appropriate filings with the Commission. In the instant case, when BANM sold the three systems to SNET, under the Commission's Rules, the right to use SID No. 0119 in those markets transferred to SNET. Indeed, the Commission's database accurately reflects that SID No. 0119 may be used in connection with the cellular systems located in the Providence, Rhode Island MSA; Newport, Rhode Island RSA; and New Bedford, Massachusetts MSA. Because SNET is the licensee of the cellular systems in these markets, SNET may lawfully use SID No. 0119 in each of them. 10. Similarly, we find no violation by SNET of Section 22.941(b). BANM alleges that SNET violated Section 22.941(b) by failing to inform the Commission that it is using a SID assigned to other cellular systems operated by BANM without BANM's concurrence. Upon consummation of the sale of the three systems from BANM to SNET, SNET became the licensee of the three systems in question. At that time, SNET was lawfully entitled to use SID No. 0119 without further authorization from the Commission. In this regard, BANM's reliance on Section 22.941(b) lacks merit. Section 22.941(b) applies, for example, when a cellular system contemplates using an additional SID that it is not otherwise authorized to use. In such a case, the cellular operator would be required to obtain permission from the cellular licensee to which the SID is assigned and notify the Commission. In the Report and Order adopting Section 22.941(b), the Commission stated, "[W]e will continue to assign and coordinate SID codes, and we adopt our proposal to require licensees to notify us of the use of additional SID codes using FCC Form 489." In the instant case, by contrast, SNET is not using an additional SID in any of the three systems of which it is the licensee. Rather, SNET is using the SID that has been assigned to those systems, as reflected in the Commission's database. Thus, SNET is neither required, under Section 22.941(b), to obtain permission from BANM to sue SID No. 0119 or to notify the Commission that it is using SID No. 0119 in any of the three systems. 11. BANM's public interest arguments also lack merit. We find that the public interest is served by SNET's compliance with our rules. BANM has not sought a waiver of our rules or demonstrated why SNET's compliance is not in the public interest. We further note that while parties may enter into in a contract that provides, with Commission consent, for a transferee to use a SID other than the one to which it is assigned, we believe that the question of whether BANM and SNET entered into such an agreement in this particular instance is a private contractual matter between the parties, and not a matter within the Commission's jurisdiction to decide. IV. CONCLUSION 12. Under the Commission's Rules, we find as a general matter that a SID number is attached to a cellular system and transfers when the cellular system is sold, absent an agreement to the contrary upon which the Commission has passed. In the instant case, SID No. 0119 is assigned to the three cellular systems in question, and SNET has not violated Section 22.941(a) or Section 22.941(b) of the Commission's Rules by using this SID on those systems. Having failed to state a cause of action under the Communications Act of 1934, as amended, or the Commission's Rules, we hereby dismiss BANM's complaint. V. ORDERING CLAUSES 13. ACCORDINGLY, IT IS ORDERED, pursuant to Sections 4(i), 4(j) and 208 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), 208, and Section 0.331 and 1.728 of the Commissions Rules, 47 C.F.R.  0.331 and 1.728, that, the above-captioned formal complaint filed by BANM against SNET is DISMISSED WITH PREJUDICE. 14. IT IS FURTHER ORDERED that this proceeding IS TERMINATED. FEDERAL COMMUNICATIONS COMMISSION Myron C. Peck Deputy Chief, Enforcement and Consumer Information Division Wireless Telecommunications Bureau