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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 In the Matter of ) ) Radiofone, Inc., ) Complainant, ) ) v. ) File No. WB/ENF-F-96-008 ) (E-88-109) BellSouth Mobility, Inc., ) Defendant. ) MEMORANDUM OPINION AND ORDER Adopted: April 8, 1999 Released: April 9, 1999 By the Deputy Chief, Enforcement and Consumer Information Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. The Chief, Wireless Telecommunications Bureau, acting pursuant to delegated authority, has before him a formal complaint filed by Radiofone, Inc. ("Radiofone") against BellSouth Mobility, Inc. ("BMI"). Radiofone alleges that BMI and its affiliates, during the period between 1988 and 1993, engaged in a pattern of unlawful conduct designed to injure Radiofone in the cellular marketplace. More specifically, Radiofone alleges that BMI provided roaming service to affiliates at "predatory" rates and unlawfully discriminated against Radiofone by charging per diem set-up fees for roaming on the system of BMI affiliates, which were applicable for Radiofone's subscribers, but not for subscribers of BMI's affiliates. Radiofone further alleges that BMI engaged in a pattern of anti-competitive conduct by denying "automatic" roaming to Radiofone subscribers on occasion, and by causing roamer services to Radiofone's subscribers to be impaired and interrupted. Radiofone contends that BMI thereby violated Sections 202(a) and 314 of the Communications Act of 1934, as amended, 47 U.S.C.  202(a) and 314. It requests the Commission to find for it on the issue of liability, to order BMI to provide "automatic" roaming to Radiofone customers, and to schedule further proceedings on the issue of the amount of damages owed to the company by BMI. On March 15, 1996, the proceeding was transferred from the Common Carrier Bureau to the Wireless Telecommunications Bureau. 2. Upon consideration of the extensive record before us, and for the reasons discussed below, we find that the Louisiana Public Service Commission ("LPSC") has previously addressed Radiofone's complaint to the extent it alleges that BMI had unlawfully discriminated against it, and that this issue has been resolved by the agreement of the parties and the staff of the LPSC. We also conclude that Radiofone has failed to state a cause of action under Section 314 of the Communications Act and that, in any event, Radiofone has failed to show, as a matter of fact, that BMI had engaged in a pattern of anti-competitive conduct. We therefore deny Radiofone's complaint and terminate this proceeding. II. BACKGROUND 3. The Complainant, Radiofone, is the Block A cellular radiotelephone licensee for the New Orleans, Louisiana Metropolitan Service Area ("MSA"). The Defendant, BMI, through a wholly- owned subsidiary, holds the Block B cellular license for the New Orleans MSA. The parties also compete in the provision of cellular radiotelephone services in other parts of Louisiana. As of 1996, Radiofone holds, in its own name or through affiliated corporations, the non-wireline licenses for five other markets in Louisiana. BMI, through a subsidiary, holds the wireline license in five other Louisiana markets in addition to the New Orleans MSA. BMI is a wholly-owned subsidiary of BellSouth Corporation and, through various subsidiaries, holds cellular service licenses throughout the BellSouth local exchange telephone service areas, as well as in other parts of the country. 4. As the wireline affiliated licensee, BMI was able to begin service in the New Orleans MSA and in other service areas in Louisiana earlier than Radiofone. For a period prior to October 1985, when Radiofone began to provide cellular services in New Orleans through its own facilities, Radiofone operated as a reseller of BMI's services. During the period in which the occurrences complained of by Radiofone took place, BMI allegedly promoted its service as superior to that offered by Radiofone because, among other things, it offered subscribers more extensive and lower cost roamer services. 5. BMI established its charges for other carriers whose subscribers roamed on its systems in Louisiana in a tariff, which it filed with the Louisiana Public Service Commission ("LPSC"). The tariff provided for a $2.00 per day roamer "set-up" charge per customer. The "set-up" charge applied for any access to BMI's system by roamers. Per-minute charges were applicable for each customer's use of BMI's services and additional toll charges were applicable when intrastate or interstate interexchange calls were initiated by a roamer. The same $2.00 per day access charge was applicable for customers that utilized BMI's system to make local exchange calls, customers that made intrastate interexchange calls, customers that made interstate interexchange calls or customers that made a combination of local, intrastate and interstate calls. The record does not contain information on the percentage distribution of intrastate and interstate calls made by roamers, for which such "set-up" charges were applicable. BMI's "set-up" charges were only applied by it on the wholesale level to other carriers with which it had automatic roaming agreements. As reflected in BMI's retail tariffs, also filed with the LPSC, it did not charge its own subscribers any "set-up" charges when using the roaming services of BMI affiliates in Louisiana. III. DISCUSSION A. Alleged Discriminatory Application of Per Diem Set-Up Fees 1. Factual Allegations 6. Application of Set-Up Fees. On October 2, 1985, Radiofone and BMI, on behalf of its cellular licensee subsidiaries, entered into an "Intercarrier Roamer Service Agreement." Section 4.1 of that Agreement provided as follows: Each home carrier shall be responsible for billing to and collecting from its own customers all charges that are incurred by said customers as a result of services provided to them as Authorized Roamers by the Foreign Carrier. The Home Carrier shall bill its customers in accordance with the rates for cellular services in the Foreign Carrier's tariff (as billed to the Home Carrier by the Foreign Carrier) and, where applicable (e.g., billing fees, late payment fees, premium charges), in accordance with its own additional charges. The Home Carrier shall also be responsible for billing its customers for and remitting to the Federal Government all federal excise tax that may be incurred in connection with the service being billed by it to its customers. Each Home Carrier shall be liable to the Foreign Carrier for the payments provided in Paragraph 2.1 whether or not amounts billed are paid to the Home Carrier by its customers. (Emphasis added). 7. Radiofone contends that it was required by the underlined language in Section 4.1 of the "Intercarrier Roamer Service Agreement," set forth above, to flow-through BMI's "set-up" charges to subscribers that used BMI's roamer services in Louisiana. BMI denies this and states that "Section 4.1 of the Agreement was intended merely to ensure that Radiofone, not BMI, is responsible for billing its customers for automatic roaming, and that Radiofone must pay roaming charges to BMI regardless of whether Radiofone collected such fees from its subscribers." When Radiofone complained to BMI about BMI's practice of not passing on "set-up" charges to its own subscribers, BMI advised Radiofone that it was not precluded by the contract from also absorbing set-up fees for its customers. 8. BMI contends that it did not discriminate, because its "set-up" charges were only applicable to carriers - not subscribers - and that it did, in accordance with its wholesale tariff, assess this charge to all carriers, including its affiliates. At the request of the Common Carrier Bureau staff, an audit of BMI's records was conducted to test the accuracy of BMI's assertion that applicable "set-up" charges were, in fact, billed at the wholesale level to BMI's affiliates and to the retail division of BMI's New Orleans licensee. The certified public accounting firm of Coopers and Lybrand was hired by BMI for this purpose. 9. The parties informally agreed that the billing records of BMI's New Orleans subsidiary for the months of February and June, 1988 and January, 1989 would be examined. The results of this audit were submitted for the record in this proceeding in the form of an affidavit by a partner of Coopers and Lybrand, William Thomas Bishop, Jr. Based on his examination of the records, Mr. Bishop determined that "set-up" charges were billed between BMI's wholesale affiliates in all three proxy months and that BMI's affiliate licensee in the New Orleans market billed its retail division for "set-up" charges in two of the three proxy months. However, Mr. Bishop determined that BMI's New Orleans licensee failed to bill these charges to its retail division for the proxy month of February, 1988. Mr. Bishop also found that these charges were not billed by the licensee to its retail division for March of 1988, which was not one of the agreed-upon proxy months. Mr. Bishop determined that the failure to bill "set-up" charges to the retail division for these two months resulted from a programming error by Cincinnati Bell Information Systems ("CBIS"), which was BMI's New Orleans licensee's billing agent and performed the affiliate-transaction billing for BMI. He concluded that BMI was not aware of this error and that the failure to bill the retail division in these months was not intended by BMI. 10. Mr. Bishop was deposed by Radiofone and Radiofone submitted a rebuttal affidavit from Hugh Larkin, Jr., a partner in the certified public accounting firm of Larkin & Associates. In Mr. Larkin's opinion, BMI did not have adequate internal controls and other accounting procedures in place to assure that applicable "set-up" charges were accurately billed by BMI's New Orleans licensee to its retail division or to affiliated cellular licensees. Moreover, he concluded that such intercompany and interdivisional billing of "set-up" charges, in any event, does not have an economic impact on BMI, because such transactions between the "wholesale" and "retail" divisions are eliminated in the consolidated financial statements of BMI and these divisions even have the same bank account. 11. Radiofone's Complaint Before the LPSC. On May 7, 1990, after Radiofone's complaint with this Commission had been pending for more than a year, it informally complained to the LPSC, again objecting to BMI's allegedly discriminatory application of "set-up" charges. In response to Radiofone's complaint, a meeting was held by the LPSC staff on May 22, 1990, in which BMI, Radiofone and the LPSC staff agreed upon a settlement of the issues, which was summarized in LPSC's letter to the parties, as follows: All parties agreed that the Inter-carrier Roamer Service Agreement, dated October 1, 1985, is still in effect, thus allowing BMI to refund all $2.00 per day roaming charges paid by Radiofone retroactive to September 25, 1989, the date of approved tariff. Both parties agreed to research their records and report to the Commission within 30 days whether either party waived the $2.00 per day roaming charges to other parties prior to September 25, 1989. All parties agreed to cooperate and allow pre-testing so as to allow roaming in those areas, such as Baldwin, Berwick, Iberville, Hammond on the date those transmitters are technically operational. 12. Pursuant to this agreement, BMI stopped assessing "set-up" fees against Radiofone on May 20, 1990, ending any allegedly discriminatory treatment of Radiofone in this regard. Thereafter, BMI reported to the LPSC that it had calculated that, in accordance with the settlement agreement, it owed $9,146 to Radiofone, as a refund of the "set-up" charges it had collected from Radiofone during the period from September 25, 1989 to May 15, 1990. The LPSC notified Radiofone of this on June 28, 1990, and recommended that it contact BMI "to finalize the payment agreement." However, Radiofone did not contact BMI to agree upon the amount that was subject to refund, pursuant to the agreement, and no payments have yet been made in this regard by BMI to Radiofone. 13. It appears that the agreement also had been at least partly consummated with respect to the provisions requiring the parties to cooperate in testing of BMI's new cell sites for their ability to accept roaming traffic from Radiofone's subscribers. In this regard, the copies of correspondence between the parties, attached to Radiofone's Initial Brief, indicate that such coordination took place with respect to the Baldwin, Berwick and Iberville cell sites. Apparently, there was also some coordination between the parties for the Hammond cell, although Radiofone believed that it had not been accorded timely notice of the cut-over of that site, and it complained to the LPSC that BMI had violated the May 22, 1990 settlement agreement in this respect. Radiofone also complained that BMI had violated the agreement by failing to notify Radiofone of a pre in-service test date for its Opelousas, La. cell site. In its February 11, 1991 letter to the LPSC in response to Radiofone's allegations, BMI argued that: The agreement to provide advance testing for Radiofone in the case of Morgan City and Hammond was one of several concessions in return for Radiofone's withdrawing all outstanding complaints before the Louisiana Public Service Commission and the FCC. Since Radiofone has violated the agreement by failing to withdraw its complaints, BMI is of the position that the agreement is no longer in effect. In any event, the agreement covered no locations other than Morgan City and Hammond. 2. Analysis 14. BMI discontinued charging Radiofone "set-up" fees on May 20, 1990. This was prior to the enactment of the 1993 amendments to Section 332 of the Communications Act, which, among other things, preempted state regulation of "the entry of or the rates charged for any commercial mobile service or private mobile service . . ." At the time that BMI made the disputed "set-up" charges for Radiofone's subscribers, BMI's cellular service was considered to be a presumptively intrastate, "telephone exchange service" for which, in accordance with Sections 2(b) and 221(b) of the Act, "charges, classifications, practices, services [or] facilities" were subject to state regulation and not subject to the Commission's jurisdiction. Moreover, BMI's rates for its roaming service to its subscribers and to other cellular carriers with which it had automatic roaming agreements were in fact being regulated by the LPSC. Indeed, the roaming "set-up" fees at issue were established by tariffs filed with the LPSC and reviewed by that agency. 15. BMI contends that automatic roaming is an intrastate service, which is beyond the Commission's jurisdiction. It argues that its per-diem "set-up" charges for roaming service are "the functional equivalent of local exchange telephone service, in a mobile environment," in that the "set- up charges for roaming are inherently local in nature and are fully separable from the charges made for placement of interstate calls while roaming." On the other hand, Radiofone contends that the Commission has jurisdiction over BMI's "set-up" charges under the "inseparability" doctrine. It argues that, since the same "set-up" charges were required for the customer to access both the interstate and the intrastate network, they were analogous both to the flat-rate end user access charges the Commission prescribed to recover non-traffic-sensitive costs attributed to users which used private lines to by-pass local telephone networks, and to the charges for terminal equipment used for both interstate and intrastate communications, both of which were held by U.S. Courts of Appeals to be subject to the Commission's jurisdiction. 16. Radiofone argues further that, even if the "set-up" charges at issue are properly classified as intrastate, the Commission has jurisdiction of its complaint, to the extent that BMI's discriminatory application of "set-up" charges violated the Commission's Rules or policies. In this regard, it relies on Continental Mobile Tel. Co. v. Chicago SMSA Ltd Partnership. Radiofone contends that, since cellular licensees are required by the Commission's rules to provide service to roamers, "it defies logic to presume that the Commission has no jurisdiction to stop BMI from discriminating against its competitors in the provision of the service." In its Reply Brief, Radiofone makes the alternative argument that automatic roamer service is a "form of resale," and that, accordingly, BMI violated the Commission's cellular resale policy by its discriminatory application of "set-up" charges. 17. However, it is not necessary for us to resolve the jurisdictional issues presented by the parties. Radiofone's complaint as it relates to an alleged discriminatory application of per diem "set- up" charges has been previously resolved by settlement under aegis of a state agency, which then had jurisdiction. Moreover, the settlement appears to be consistent with our rules and policies, prescribed pursuant to Title III of the Communications Act, relating to the operation of cellular radiotelephone systems. Accordingly we believe that we should defer to this resolution and that we should not re- litigate the matter. 18. The contentions in Radiofone's formal complaint with this Commission that BMI had discriminated against it in the application of per diem "set-up" charges were also presented by Radiofone in 1990 to the LPSC, which at that time, prior to enactment of the 1993 amendments to Section 332 of the Communications Act, had regulatory jurisdiction over rates for intrastate cellular services in Louisiana. Although the record does not contain specific traffic data showing to what extent, if any, BMI's roaming service in Louisiana was utilized by Radiofone subscribers to make interstate calls, it can be reasonably assumed that any such interstate usage was minimal. The discrimination alleged by Radiofone in its complaint relates to the use by its Louisiana subscribers of the roaming services provided by BMI's cellular systems also within Louisiana. Both BMI's roaming "set-up" charges to other carriers and the roaming charges applicable to its own subscribers were established in tariffs filed with and reviewed by the LPSC. Radiofone recognized the LPSC's jurisdiction by addressing a complaint of the alleged discriminatory application of BMI's "set-up" charges to the LPSC. This issue was thereupon resolved by the agreement of the parties under the aegis of the LPSC, which provided that BMI would discontinue assessing Radiofone for roaming "set-up" charges and that BMI would refund the "set-up" charges that it collected in past periods when it had absorbed these charges for its own subscribers. Pursuant to this agreement, BMI did terminate its imposition of "set-up" charges on Radiofone. BMI also offered to refund the amount of past charges it calculated were owed to Radiofone, apparently in accordance with the agreement. This refund was not paid only because Radiofone apparently did not follow-up to collect the refunds owed to it. 19. We believe that the settlement agreement that the parties made with the LPSC has satisfactorily resolved Radiofone's complaint with respect to the alleged discriminatory application of BMI's roaming "set-up" charges, and such settlement has not been shown to conflict with the Commission's rules or the policies governing the operation of cellular radiotelephone systems. We do not believe that we should re-litigate a matter that has been already satisfactorily resolved under the aegis of a state agency that had jurisdiction at the time that the acts complained of occurred. We therefore dismiss Radiofone's claims that BMI violated Section 202(a) of the Communications Act and/or the Commission's rules and policies because of an alleged discrimination in the application of "set-up" fees. B. Alleged "Pattern of Anti-Competitive Conduct" in Violation of Section 314 of the Communications Act 1. Factual Allegations 20. Radiofone also alleges that BMI has engaged in a "pattern of anti-competitive conduct." Radiofone contends that such anti-competitive conduct included the allegedly discriminatory application of per diem "set-up" fees, discussed above, and the failure of BMI to pass-on such fees to its subscribers, which it characterizes as "predatory pricing." In addition, Radiofone alleges that BMI intentionally disrupted or impaired automatic roaming services to Radiofone's customers in the following incidents: 21. Disconnection of Service to 450-8XXX Subscribers Because of the headstart accorded to BMI's affiliate as the Block B (wireline) licensee, Radiofone was required to initiate service in New Orleans by reselling BMI's services. During this period, Radiofone's subscribers were assigned numbers on the (504) 450-XXXX block assigned for BMI's cellular service, rather than the (504) 583-XXXX block, which was assigned for Radiofone's service. When Radiofone's service became operational, the customers which it previously obtained, as a reseller of BMI, retained their 450 prefix numbers. It was Radiofone's intention to gradually shift all subscribers to 583 prefix numbers through the process of attrition. 22. On June 6, 1988, Radiofone heard that its subscribers assigned 450-8XXX numbers were being denied automatic roaming service by a cellular system in Houston, Texas, which was not affiliated with either of the parties to this proceeding. The BMI employees, whom Radiofone initially contacted on June 8, were unresponsive and BMI did not begin its investigation of this matter until June 9, 1988, after Radiofone had brought the matter to the attention of BMI's President. BMI discovered from its investigation that the termination of automatic roaming for these 125 Radiofone subscribers resulted from its adoption of a positive validation system ("PVS"). Under PVS, the cellular system providing the roaming service automatically queries the roamer's home switch for validation of the roamer's mobile phone number. Since the 450-8XXX numbers were assigned to subscribers on Radiofone's system and not to its subscribers, BMI had deleted these numbers from its switch as valid numbers on its system. When the Houston switch queried BMI's New Orleans switch for validation of the numbers of these Radiofone subscribers, its validations were not received. 23. When BMI implemented PVS for its system in March 1988, it gave notice of this to Radiofone. BMI argues that Radiofone had ample opportunity to take action to assure that its customers would not be affected by this change. Apparently, the problem did not surface until the Houston carrier also implemented this system of automatic validation some months later. At first, BMI believed it could correct the problem by providing a validation of those numbers to BMI's clearinghouse, GTEDS. It did this on June 13, 1988. However, this did not restore service. 24. On June 13, 1988, Radiofone sought the assistance of the Enforcement Division of the Common Carrier Bureau to resolve the problem. A meeting was held with representatives of the parties and the Enforcement Division on June 14, 1988, in which BMI promised to restore service by the next day. In return for its agreement to restore service, BMI sought Radiofone's agreement (1) to guarantee payment for its subscribers' roaming services and (2) to convert all of its remaining subscribers with 450 prefix numbers to its own numbers by June 21, 1988. BMI argued that it was required to handle the roaming bills for these numbers manually without compensation, and that it was unreasonable for Radiofone to retain subscribers on 450 prefix numbers for almost three years after its own system had become operational. At the urging of the Enforcement Division staff, BMI withdrew this demand as a condition to the prompt restoration of service. Radiofone, however, did agree to discontinue the use of the 450 prefix for its subscribers by December 31, 1988. 25. BMI and Radiofone determined that, in order to restore service for these Radiofone subscribers, it would be necessary for both BMI's clearinghouse, GTEDS, and Radiofone's clearinghouse, Appex, to coordinate the validation of their numbers. On June 15, 1988, BMI arranged with GTEDS to reroute the 450-8XXX numbers through its gateway with Appex for validation. However, the restoration of service was delayed for another day because of BMI's administrative error in failing to send a facsimile to Appex confirming these arrangements until June 16, 1988. 26. Erroneous Billing and Service Disruptions in Lafayette, La. For the period from December 31, 1987 through June 15, 1988, BMI erroneously billed Radiofone for Radiofone's New Orleans subscribers roaming on BMI's Lafayette system at a usage rate of $0.50 per minute, rather that at the rate of $0.35 per minute, as provided in BMI's tariff, filed with the LPSC. After this was brought to its attention by Radiofone in February 1988, BMI advised that it would correct its billing program and adjust its charges to Radiofone. After some delay, BMI's billing was corrected beginning in August 1988, and the overcharges paid by Radiofone for prior months were refunded on August 4, 1988. 27. BMI discontinued automatic roaming for Radiofone subscribers on its Lafayette, Louisiana system on April 8, 1988, the date that the Block A cellular carrier, Cellular One of Lafayette ("Cellular One"), commenced its competitive service in the Lafayette service area. It was BMI's policy for its affiliated licensees not to provide "home" roaming to customers of the non- wireline licensees in their service areas or to subscribers of that competitor's affiliates. Reid Ann Stephens, the Manager - Roamer Billing and Operations of BMI, ordered automatic roamer services cut-off by BMI's Lafayette affiliate because of her mistaken belief that Cellular One was owned by Radiofone. She has testified that she had previously received correspondence from a Radiofone employee requesting roaming on BMI's cellular systems for phones with Cellular One assigned numbers and that she responded by a memo to the Radiofone employee, in which she expressed her understanding that Radiofone had an ownership interest in Cellular One. Ms. Stephens states that her belief that Cellular One was owned by Radiofone was confirmed because the Radiofone employee in her response did not correct Ms. Stephens' statement concerning Cellular One's ownership. On July 6, 1988, Radiofone requested by letter that roaming service to its subscribers be restored. The service was restored by BMI immediately thereafter. 28. Rejection of Authorization to Modify the Zackary, La. Cell Site. On October 22, 1990, BMI's affiliate, Baton Rouge MSA Limited Partnership ("Partnership"), which held the wireline cellular license for the Baton Rouge, La. MSA, filed an application, File No. 07146-CL-MP-91, with the Commission to modify its cell site at Zackary, La. in a manner which would extend its 39 dBu contour into the adjacent Louisiana 5 - Beauregard and Louisiana 7 - West Feliciana Rural Service Areas ("RSAs"). Radiofone's affiliate, Baton Rouge Cellular Telephone Company ("Cellular"), which held the non-wireline license for the Baton Rouge, La. MSA, filed a petition to dismiss or deny, in which it opposed the grant of the application on the basis that BMI's affiliate did not intend to provide roaming services to Cellular's subscribers in the parts of adjacent rural service areas which would be covered by the Zackary site's more powerful signal. The Common Carrier Bureau's Mobile Services Division granted Partnership's application, but subject to the condition that it provide roaming services to Cellular's subscribers when travelling in the covered rural service areas. BMI refused to accept this condition and returned the authorization to construct. BMI stated that it decided not to go through with the expansion of the coverage of its Zackary cell site because, unless it installed expensive equipment, compliance with the condition would have required it to provide "home" roaming to Cellular's subscribers located within the Baton Rouge MSA as well as those located in the covered areas of the adjacent rural service areas. Moreover, BMI complained that the effect of the condition to its authorization was to eliminate the possibility of competition between cellular carriers on the basis of geographic coverage within the MSA. 29. Alleged Interruptions of Service in 1993 On or about June 18, 1993, Radiofone received complaints from some of its subscribers that they were unable to use the automatic roaming service of BMI's affiliate in Louisiana RSA - 6, near Plaquemine, La. BMI states that this problem resulted from the installation of the wrong roamer software when its affiliate's Plaquemine, La. cell site was activated on June 9, 1993, and that, after it learned of the mistake from Radiofone, it promptly took corrective actions, which restored automatic roamer service to Radiofone's subscribers on June 22, 1993. 30. On or about May 22, 1993, Radiofone learned that its subscribers were not able to obtain automatic roaming service in the territory served by BMI's affiliate's Bogalusa cell site in Louisiana RSA - 7. The Bogalusa cell site had just been activated on May 20, 1993 and was still in the process of being tested when BMI received Radiofone's complaint on May 22. BMI maintains that the necessary corrections to its roaming software package were made within the hour by BMI after it learned of the problem, which allowed automatic roaming from the cell site for Radiofone's subscribers. 31. Radiofone also alleges that, "on or about November 6, 1993, BMI disabled roaming capabilities for Radiofone subscribers roaming in Louisiana RSA 7 without notice and without explanation," and that "on or about November 11, 1993, roaming capabilities were discontinued for Radiofone's Baton Rouge subscribers roaming in BMI territory near Plaquemine, Louisiana (Louisiana RSA 6)." BMI explains that during this period its contractor, Motorola, was installing an enhancement, known as Dynamic Roaming, to its switches to permit automatic roaming for additional BMI markets to be networked though its New Orleans, Baton Rouge and Lafayette, La. MTSOs. To implement this enhancement, BMI maintains, Motorola was required to "rebuild" the roaming data base in each of its MTSOs. In doing so, BMI maintains, Motorola made errors which resulted in a number of disruptions in roaming service, including those complained of by Radiofone. BMI claims that it corrected the roaming data base for the Louisiana -7 RSA service on November 10, 1993, which is the date of Radiofone's letter to it bringing the problem to its attention. BMI states that it corrected the problem resulting in the Plaquemine, La. service disruption on November 11, 1993, within 3-4 hours after receiving Radiofone's complaint. 2. Analysis 32. Radiofone contends that BMI has engaged in a "pattern of anti-competitive conduct," in violation of Section 314 of the Communications Act, consisting of the alleged discriminatory and predatory pricing of its per diem roaming "set-up" charges and the various other events described supra. in paragraphs 21-31. However, even assuming that the conduct complained of relates to interstate communications, we do not believe that such conduct was violative of Section 314 of the Act, or that the difficulties that Radiofone has alleged it has experienced with BMI's roamer services show that BMI had engaged in a "pattern of anti-competitive conduct" which was otherwise proscribed by the Communications Act. 33. Radiofone argues that Section 314 of the Act grants the Commission omnibus authority to remedy anti-competitive conduct by its radio licensees. In this regard, it points to statements in several Commission orders in which the Commission cited Section 314, along with other sections of the Act, as reflective of its general authority to consider the impact of its regulations on competition for communications services. We agree that the Commission in its implementation of the provisions of the Communications Act may and, indeed, must consider the pro-competitive policies underlying the antitrust laws within the broad "public interest" and "just and reasonable" standards set forth in Sections 201(b), 202(a), 214, 224, 308(a) and other specific sections of the Act. However, the Commission has not, as Radiofone argues, been effectively granted omnibus antitrust jurisdiction over the communications industry by Section 314 of the Act. 34. The language of Section 314 appears to relate only to anti-competitive combinations of international radio and cable companies and the anti-competitive operation of international telecommunication facilities. That section, insofar as pertinent to Radiofone's argument, provides: [N]o person engaged directly, or indirectly . . . in the business of transmitting and/or receiving for hire energy, communications, or signals by radio in accordance with the terms of the license issued under this Act, shall . . . directly or indirectly operate any cable or wire telegraph or telephone line or system between any place in any state . . . and any place in any foreign country . . . if . . . the purpose is and/or the effect thereof may be to substantially lessen competition or to restrain commerce between any state . . .and any place in any foreign country, or unlawfully create monopoly in any line of commerce. (emphasis added) 35. Section 314 was included in the original 1934 Act in response to a Congressional concern that the then existing competition in the international telecommunications market between HF radio companies, providing radiogram services, and submarine cable companies, providing cablegram services, might be eliminated in the future as a result of consolidations or mergers among those competitors. As stated in the House and Senate Reports, "Section 314 preserves competition in international communications." When the issue of the application of Section 314 was squarely presented in prior cases, the Commission has also held that the section applies only to international communications. Thus in Applications For Transfer of Control of RCA Corporation, the Commission interpreted Section 314 as prohibiting, "the acquisition of international facilities when the transfer would substantially lessen the competition between radio facilities on the one hand and cable facilities on the other hand." 36. Radiofone, in arguing that Section 314 confers broad antitrust jurisdiction on the Commission, fails to recognize that the language of this provision is limited to international communications. Radiofone further relies on Sports Network, Inc. v. AT&T, which it argues requires that "anti-competitive conduct on the part of a radio licensee in 'any line of commerce,' domestic or international, is subject to Section 314." In Sports Network the Commission dismissed allegations in a formal complaint that AT&T had violated Sections 311 and 314 of the Act in its provision of program transmission service to occasional users. The Commission stated that Section 314 prohibits "common ownership or control of cable and radio facilities if the purpose or effect thereof is to substantially lessen competition between any place in the United States and any place in any foreign country or unlawfully create monopoly in any line of commerce." We do not agree that Sports Network supports, much less requires, the interpretation of Section 314 advocated by Radiofone. 37. Similarly, Radiofone cites International Telecharge v. AT&T and Garryowen Corp., both cases in which complaints alleging violations of Section 314 were dismissed. In short, Radiofone has not cited any instances in which anti-competitive acts in domestic markets have been found in violation of Section 314. We therefore find that the cases cited by Radiofone are unpersuasive. 38. Contrary to Radiofone's position, the Commission previously has ruled that Section 314 is not applicable to domestic mobile communications. In American Telephone and Telegraph Co., 22 F.C.C. 1220, 1223 (1957), the Commission stated: AT&T's Tariff FCC No. 235 is limited in application to the leasing and maintaining of equipment and facilities used by private mobile communications systems within the continental United States. It is clear that it does not involve the acquisition, ownership, control, or operation of any facility - wire or radio - for the transmission or communication between the United States and any foreign country. Thus, we conclude that section 314 is not applicable to this proceeding. 39. In any event, we do not believe that the record in this proceeding supports Radiofone's contention that BMI has engaged in unlawful anti-competitive conduct. In this regard, Radiofone alleges that BMI engaged in a "pattern of anti-competitive conduct" by: (1) the discriminatory application of "set-up" charges; (2) the charging of "predatory" roaming "set-up" charges to its subscribers; (3) BMI's Baton Rouge, La. affiliate's refusal to accept the Commission's authorization to modify its Zackary cell site; and (4) the six alleged instances of disruption of roaming services by BMI's affiliates to Radiofone's subscribers. 40. The substance of Radiofone's claims of unlawful discrimination with respect to BMI's application of per diem "set-up" charges has been resolved by the settlement of the parties under the aegis of the LPSC. Further, we do not believe that such alleged discrimination in itself or with the other evidence offered by Radiofone establishes a pattern of anti-competitive conduct on the part of BMI. Radiofone argues that BMI engaged in "predatory" pricing by not passing on the $2.00 "set- up" fee to its subscribers or, in the alternative, by not assessing this fee at all times to affiliates. However, Radiofone has not even attempted to show that BMI's overall charges to its subscribers were below cost. It has also not established other components of "predatory pricing": that BMI's below-cost pricing was intended to drive competitors out of the market; that it intended thereafter to raise prices to a monopoly level; and that it had a reasonable prospect to succeed with this anti- competitive strategy. 41. Similarly, Radiofone has not presented any direct evidence that BMI has intentionally disrupted automatic roaming service to Radiofone's subscribers. In each instance complained of, BMI has a credible explanation for the interruption of service and in each instance service was restored fairly promptly after BMI was made aware of it. There is also no basis in the record to conclude that BMI's refusal to accept the Commission's authorization to modify its Zackary site was part of a "pattern of anti-competitive conduct." 42. We therefore conclude that Radiofone's complaint does not set forth a basis, either in fact or in law, to support a conclusion that BMI has violated Section 314 of the Communications Act. IV. CONCLUSIONS AND ORDERING CLAUSES 43. Based on the foregoing, we conclude that Radiofone's complaint, to the extent that it contends that BMI discriminated against Radiofone in the application of per diem set-up fees, has been resolved by a settlement agreement under the aegis of the Louisiana Public Service Commission, which had jurisdiction over the matter, and should not be re-litigated by this Commission. Further, we conclude that Section 314 is inapposite, and that in any event Radiofone has not shown that BMI has engaged in a pattern of anti-competitive conduct violative of the Act. 44. Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 4(j), 202, 208, and 314 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), 202, 208, and 314, that the formal complaint of Radiofone, Inc. against Bell South Mobility, Inc. IS DENIED. 46. 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