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                           1.   Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                 )
                                )
AirTouch Cellular,               )
           Complainant,          )    File No. E-97-46
                                )
                      v.         )
                                )
Pacific Bell,                    )
            Defendant.           )


                  MEMORANDUM OPINION AND ORDER

   Adopted:  June 27, 2001              Released: July 6, 2001

By the Commission:  Commissioner Abernathy not participating.

                        I.   INTRODUCTION

In this Memorandum Opinion and Order,  we grant in part and  deny 
in part the complaint  filed by AirTouch Cellular  (``AirTouch'') 
against  Pacific   Bell1  pursuant   to   section  208   of   the 
Communications Act  of  1934,  as  amended  (``Act'').2   In  its 
complaint, AirTouch alleges  that Pacific  Bell violated  section 
20.113 of the Commission's rules because Pacific Bell did not pay 
mutual compensation  to  AirTouch, nor  did  the  Interconnection 
Agreement  between  AirTouch   and  Pacific   Bell  contain   any 
provisions for mutual compensation.4   We find that Pacific  Bell 
violated section 20.11 of the rules when it failed to pay  mutual 
compensation to AirTouch in  connection with terminating  traffic 
that  originated  on  Pacific  Bell's  facilities.   We  dismiss, 
however, AirTouch's  claim  that  the  Interconnection  Agreement 
violated rule section  20.11 because the  statute of  limitations 
has run on that claim.

                         II.  BACKGROUND

          2.   During the  period  relevant  to  this  complaint, 
            AirTouch   controlled  several   cellular   telephone 
            providers  in   California.   Pacific  Bell  was   an 
            incumbent  local  exchange  carrier  (``LEC'')   that 
            provided local exchange and exchange access  services 
            in  California.5    In  1993,   Pacific  Bell   began 
            negotiations   with   the   cellular   industry    in 
            California, leading to interconnection agreements  in 
            1994  between Pacific  Bell and  individual  cellular 
            carriers.6  On April  28, 1994, AirTouch and  Pacific 
            Bell  entered   into  an  Interconnection   Agreement 
            governing the  terms and  conditions associated  with 
            the exchange of traffic between AirTouch and  Pacific 
            Bell.7    The  Interconnection   Agreement  did   not 
            provide  ``cash compensation''  to AirTouch  for  the 
            termination  of  calls  that  originated  on  Pacific 
            Bell's network.8 

          3.   On March  7, 1994,  prior to  the signing  of  the 
            Interconnection  Agreement,  the  Commission  adopted 
            rule  section  20.11,  which  requires  that  ``local 
            exchange   carriers  and   commercial  mobile   radio 
            service  providers shall  comply with  principles  of 
            mutual   compensation.''9   Section   20.11    became 
            effective  on  July  18,  1994,  approximately  three 
            months after  the parties signed the  Interconnection 
            Agreement.10   During the  time period  in which  the 
            Interconnection  Agreement  was  effective,   Pacific 
            Bell did  not pay ``cash  compensation'' to  AirTouch 
            for terminating  traffic that  originated on  Pacific 
            Bell's   network.11   Almost   three   years   later, 
            AirTouch  and  Pacific   Bell  entered  into  a   new 
            contract  for interconnection,  effective  March  25, 
            1997,    that    did    provide    for     reciprocal 
            compensation.12   On  September  19,  1997,  AirTouch 
            filed this formal  complaint, reserving the right  to 
            file a supplemental  complaint for damages after  the 
            issuance of  a Commission decision  on the merits  of 
            the instant complaint.13

                         III. DISCUSSION

          4.   In its Complaint, AirTouch appears to make several 
            different  arguments.  First,  AirTouch alleges  that 
            Pacific  Bell's  failure  to  ``provide  for   mutual 
            compensation  in  its  then-existing  interconnection 
            agreements with AirTouch [] resulted in Pacific  Bell 
            violating Section 20.11(b) of the Commission's  Rules 
            ... .''14  AirTouch also alleges that, regardless  of 
            the terms  of the Interconnection Agreement,  Pacific 
            Bell violated section 20.11(b) when it failed to  pay 
            mutual  compensation  to  AirTouch  for   terminating 
            traffic that originated on Pacific Bell's network.15  

A.   Claim  that  Terms  of  Interconnection  Agreement  Violated 
     Section 20.11(b)

          5.   AirTouch claims that Pacific Bell violated section 
            20.11(b)  when  it  failed  to  provide  for   mutual 
            compensation    in    the    1994     Interconnection 
            Agreement.16  Pacific Bell  asserts  that  AirTouch's 
            claim is  barred by  the statute  of limitations  set 
            forth in section  415 of the Act.  AirTouch  responds 
            that Pacific  Bell's failure to  comply with  section 
            20.11(b)  was a  continuting violation  and that  the 
            statute of limitations  began with each day that  the 
            rule  was  violated.  For  this  claim,  however,  we 
            agree  with   Pacific  Bell  that   the  statute   of 
            limitations bars AirTouch's claim.

          6.   Under  section   415(b)   of  the   Act,   ``[a]ll 
            complaints  against  carriers  for  the  recovery  of 
            damages not based on overcharges shall be filed  with 
            the Commission  within two  years from  the time  the 
            cause  of  action accrues.''17   A  cause  of  action 
            accrues  for  purposes of  section  415(b)  when  the 
            carrier does  the unlawful  act or fails  to do  what 
            the  law requires.18   We  find that  this  cause  of 
            action, which  is based  on the  allegation that  the 
            Interconnection Agreement  violated section  20.11(b) 
            of the Commission's rules, accrued on July 18,  1994, 
            the  date  that  section  20.11  became  effective.19 
            AirTouch   knew    when   it    entered   into    the 
            Interconnection  Agreement  that  it  lacked   mutual 
            compensation provisions.20 If section 20.11  required 
            Pacific  Bell  to  take  some  action  to  amend  the 
            preexisting  Interconnection  Agreement,  then   that 
            obligation  came  into  being  on  July  18,  1994.21 
            Accordingly, AirTouch  should have  filed this  claim 
            in a  complaint on or before  July 18, 1996 in  order 
            to comply  with the requirements  of section  415(b).  
            Because this complaint was not filed until  September 
            19, 1997, AirTouch's claim is time barred. 

B.   Claim that Pacific Bell Violated Section 20.11(b) by Failing 
     to Pay Mutual Compensation to AirTouch 

     1.   Section 20.11(b) Applies to Intrastate Traffic

          7.   AirTouch  next  argues  that  regardless  of   the 
            absence  of  mutual compensation  provisions  in  the 
            Interconnection  Agreement,  Pacific  Bell   violated 
            section 20.11(b)  of the Commission's  rules when  it 
            failed  to  pay  AirTouch  mutual  compensation   for 
            terminating calls  that originated on Pacific  Bell's 
            network.22  Pacific Bell contends that, prior to  the 
            enactment  of the  1996 Act,  the obligation  to  pay 
            mutual compensation under section 20.11 only  applied 
            to  interstate   traffic.23   We  disagree  for   the 
            reasons set forth below.24 

          8.   The Commission adopted the CMRS Second Report  and 
            Order in 1994  to implement sections 3(n) and 332  of 
            the  Act,  as  amended  by  Section  6002(b)  of  the 
            Omnibus  Budget Reconciliation  Act of  1993.25   The 
            Budget  Act   changed  the  regulatory  regime   with 
            respect to mobile service providers, by, among  other 
            things,  (1) bringing  all mobile  service  providers 
            under   a   comprehensive,   consistent    regulatory 
            framework; (2)  giving the Commission flexibility  to 
            establish  appropriate   levels  of  regulation   for 
            mobile radio  services providers; (3) mandating  that 
            commercial mobile radio service (``CMRS'')  providers 
            would  be  treated   as  common  carriers;  and   (4) 
            preempting state  regulation of entry  and rates  for 
            CMRS  providers, but  permitting states  to  petition 
            the Commission for  authority to regulate CMRS  rates 
            under some circumstances.26  

          9.   In the CMRS Second Report and Order the Commission 
            adopted rule section 20.11, which states in  relevant 
            part:

          (b) Local exchange carriers and commercial  mobile 
          radio  service   providers   shall   comply   with 
          principles of mutual compensation.
               (1)  A  local  exchange  carrier  shall   pay 
          reasonable compensation  to  a  commercial  mobile 
          service provider  in connection  with  terminating 
          traffic that originates on facilities of the local 
          exchange carrier.27

          10.  In the text of the  CMRS Second Report and  Order, 
            the Commission  stated that  the mutual  compensation 
            requirement is ``in  keeping with actions we  already 
            have  taken with  regard  to Part  22  providers.''28  
            The Commission then  cited to a 1987 proceeding  that 
            affirmed  principles   of  mutual  compensation   for 
            interstate   switching   costs   between    telephone 
            companies  and  cellular  carriers.29   Pacific  Bell 
            argues that because the CMRS Second Report and  Order 
            cited  to a  proceeding that  explicitly limited  the 
            scope of  mutual compensation to interstate  traffic, 
            the scope of section 20.11 must be similarly  limited 
            to interstate traffic.  Pacific Bell states that  the 
            Commission  did  not preempt  the  authority  of  the 
            states  to  regulate  mutual  compensation  or  other 
            aspects of interconnection rates.30

          11.  We find Pacific Bell's arguments unpersuasive  and 
            conclude that the Commission intended the  principles 
            of  mutual   compensation  to  apply  to   intrastate 
            interconnection  between  LECs  and  CMRS   carriers.  
            First,  nothing in  the text  of rule  section  20.11 
            limits its coverage to interstate services.   Section 
            20.11  states  that  a  LEC  ``shall  pay  reasonable 
            compensation to a commercial mobile service  provider 
            in   connection   with   terminating   traffic   that 
            originates  on  facilities  of  the  local   exchange 
            carrier.''31   The  text  of  the  rule  contains  no 
            limitations  on   its  applicability  to   intrastate 
            traffic.  In  fact, to  limit section  20.11 to  only 
            interstate services  would be nonsensical given  that 
            the  rule   pertains  to   CMRS-bound  traffic   that 
            originates  on  the  local  exchange  carrier  which, 
            because of the Bell Operating Companies'  prohibition 
            on the provision  of interLATA services at the  time, 
            would almost entirely be intrastate traffic.

          12.  Second, in the text of the CMRS Second Report  and 
            Order, the Commission said that ``[t]he principle  of 
            mutual  compensation shall  apply, under  which  LECs 
            shall compensate  CMRS providers  for the  reasonable 
            costs  incurred  by  such  providers  in  terminating 
            traffic that  originates on LEC facilities.''32   The 
            text does not  impose any limitation on the scope  of 
            the  mutual  compensation requirement.   This  is  in 
            stark contrast to  the very next paragraph, in  which 
            the   Commission  specifically   limits   a   pricing 
            requirement  to  interstate  traffic  only:    ``[w]e 
            require that LECs shall establish reasonable  charges 
            for    interstate   interconnection    provided    to 
            commercial  mobile radio  service licensees.''33   We 
            conclude that  had the Commission  intended to  limit 
            the   applicability  of   the   mutual   compensation 
            requirement  to  interstate traffic,  it  would  have 
            clearly specified such a limitation.

          13.  Third, we find support  for our conclusion in  the 
            Commission's 1996 Local Competition First Report  and 
            Order.34  In that order, the Commission stated that 

          [I]n many  cases,  incumbent LECs  appear  to 
          have imposed arrangements that provide little 
          or no  compensation for  calls terminated  on 
          wireless networks, and in some cases  imposed 
          charges  for  traffic   originated  on   CMRS 
          providers' networks,  both  in  violation  of 
          section 20.11 of our rules.35

Based on  this  conclusion,  the  Commission  ordered  that  CMRS 
carriers  be   given   the   option   to   renegotiate   existing 
interconnection agreements  to  include  reciprocal  compensation 
provisions.  Once again,  the Commission made  no mention of  any 
intrastate restriction on the scope  of section 20.11, or on  the 
scope of mutual or reciprocal compensation in general.

          14.  We note that the CMRS Second Report and Order does 
            state that  the Commission ``will  not preempt  state 
            regulation  of LEC  intrastate interconnection  rates 
            applicable  to cellular  carriers at  this  time.''36  
            This   must  be   read   in  conjunction   with   the 
            nonrestrictive mutual  compensation language in  that 
            order.    Accordingly,    we   conclude   that    the 
            Commission's   intent    was   to   mandate    mutual 
            compensation  for  the termination  of  traffic  that 
            originates on the  LEC's network, but to not  preempt 
            state  regulation of  the actual  rate paid  by  CMRS 
            carriers for intrastate interconnection.   Therefore, 
            although   LECs   were   required   to   pay   mutual 
            compensation to CMRS carriers for intrastate  traffic 
            pursuant to  Commission rules,  the determination  of 
            the    actual   rates    charged    for    intrastate 
            interconnection would be  left to the states.   Based 
            on the  reasoning above,  we conclude  that when  the 
            Commission adopted the CMRS Second Report and  Order, 
            it  intended   to  apply   the  mutual   compensation 
            provisions  of  rule  section  20.11  to   intrastate 
            traffic.

     2.   The Provision of  Cost Data Is  Not a Prerequisite  for 
Mutual Compensation

          15.  Pacific Bell argues  that the Commission's  mutual 
            compensation   requirement   ``required   that   each 
            carrier   to   record  and   segregate   traffic   by 
            originating  carrier   and  provide  cost   data.''37  
            Pacific  Bell contends  that this  requirement  stems 
            from the Commission's 1989 statement that ``a  mutual 
            compensation  policy  ... allows  each  cellular  and 
            landline  carrier  to recover  its  actual  costs  of 
            switching traffic for the other party.''38  We  agree 
            with  AirTouch that  section 20.11  does not  require 
            CMRS  carriers  to  provide  such  cost  data  to  be 
            eligible for mutual compensation.39  The text of  the 
            1994 CMRS Second Report and Order states merely  that 
            ``the principle  of mutual compensation shall  apply, 
            under which LECs shall compensate CMRS providers  for 
            the reasonable  costs incurred by  such providers  in 
            terminating   traffic   that   originates   on    LEC 
            facilities.''40 Nor  does the text  of section  20.11 
            of  the   rules  impose  any   requirement  for   the 
            provision of cost data to the originating carrier  in 
            order to  be eligible for  mutual compensation.   The 
            Commission's  statement   that  mutual   compensation 
            allows  carriers to  recover their  ``actual  costs'' 
            does not itself reflect any substantive  requirement, 
            but  rather describes  one  possible outcome  if  the 
            Commission  were  to  adopt  a  mutual   compensation 
            regime.   Accordingly,  we find  that  section  20.11 
            does not require  CMRS carriers to provide cost  data 
            to  the  originating carrier  as  a  prerequisite  to 
            eligibility for mutual compensation.

     3.   AirTouch Did Not  Waive Its Statutory  Right to  Mutual 
     Compensation

          16.  We conclude above  that Pacific  Bell should  have 
            paid mutual compensation to AirTouch for  terminating 
            traffic,  pursuant to  section 20.11,  regardless  of 
            the  fact  that  the  Interconnection  Agreement  was 
            silent regarding  mutual compensation.  Pacific  Bell 
            contends, however,  that AirTouch voluntarily  traded 
            mutual compensation  in exchange for other  favorable 
            terms, such as an option for reverse toll billing  at 
            a special  rate.41  We acknowledge  that parties  may 
            modify  some  statutory  obligations  under   certain 
            circumstances, such as  through an express waiver  of 
            statutory rights.42   Based upon  our examination  of 
            the record,  however, we  find that  the parties  did 
            not  modify  the  section  20.11  obligation  to  pay 
            mutual compensation.   The Interconnection  Agreement 
            does not contain  any provisions negating the  mutual 
            compensation  obligation.43  Pacific  Bell failed  to 
            offer  any evidence  that AirTouch  expressly  waived 
            its   right  to   mutual   compensation.    Moreover, 
            AirTouch states  repeatedly that it  ``did not  waive 
            any   right  to   receive  mutual   compensation.''44  
            Accordingly, we  conclude that  AirTouch and  Pacific 
            Bell  did   not  agree  to   modify  or  negate   the 
            obligation  to   pay  mutual  compensation  for   the 
            termination  of  traffic  that  originated  on   each 
            other's networks.

C.   Equitable Defenses of Estoppel, Laches, Waiver

          17.  Pacific Bell argues that the equitable defenses of 
            estoppel,   laches,   and   waiver   bar   AirTouch's 
            complaint.45  We  find that these equitable  defenses 
            do  not  operate to  bar  AirTouch's  complaint.   We 
            agree with AirTouch  that Pacific Bell has failed  to 
            provide specific  authority for  the availability  of 
            equitable defenses in a section 208 complaint.46   In 
            any  event,   we  reject  Pacific  Bell's   defenses.  
            Pacific  Bell failed  to pay  mutual compensation  to 
            AirTouch as  expressly required  under section  20.11 
            of our  rules and,  therefore, we  decline to  accept 
            Pacific's  Bell's  invocation  of  equity  to   avoid 
            paying  such compensation.   Accordingly,  we  reject 
            Pacific Bell's argument that AirTouch's complaint  is 
            barred  by   the  equitable  defenses  of   estoppel, 
            laches, and waiver.

                         IV.  CONCLUSION

          18.  Based on our analysis above, we find that  Pacific 
            Bell  violated  section  20.11  of  the  Commission's 
            rules when  it failed to  pay mutual compensation  to 
            AirTouch for  terminating traffic that originated  on 
            Pacific  Bell's   network.   We  dismiss   AirTouch's 
            claim, however,  that Pacific  Bell violated  section 
            20.11 when it  failed to include mutual  compensation 
            provisions in the Interconnection Agreement,  because 
            such claim  is barred by  the statute of  limitations 
            contained in section 415(b) of the Act.47

                    V.      ORDERING CLAUSES

          19.  Accordingly, IT  IS  ORDERED, pursuant  to    1, 
            4(i), 4(j), 207, 208,  and 209 of the Act, 47  U.S.C. 
              151,  154(i), 154(j),  207,  208,  and  209,  and 
            section 20.11 of the Commission's rules, 47 C.F.R.   
            20.11, that  the formal complaint  filed by  AirTouch 
            Cellular  against  Pacific Bell  is  GRANTED  to  the 
            extent indicated herein.

          20.  IT IS  FURTHER  ORDERED  that  AirTouch  Cellular, 
            pursuant to section 1.722 of the Commission's  rules, 
            47 C.F.R.  1.722, MAY FILE a supplemental  complaint 
            concerning damages relating  to our findings in  this 
            Order within 60 days of the date of this decision.

                              FEDERAL COMMUNICATIONS COMMISSION





                              Magalie Roman Salas
                              Secretary
_________________________

1 Subsequent to the filing of this complaint, SBC Communications 
acquired Pacific Bell.

2 47 U.S.C.  208 (1991 & West Supp. 1999).

3 47 C.F.R.  20.11.

4 AirTouch  Complaint, filed  September  19, 1997,  at   4,  5 
(``Complaint''). 

5 Joint  Stipulations of  Disputed and  Undisputed Facts,  filed 
February   25,   1998,   Undisputed   Fact   No.   2    (``Joint 
Stipulations'').

6 Opening Brief  of Pacific  Bell, filed  April 27,  1998 at  13 
(``Pacific Bell  Brief''); Joint  Stipulations, Undisputed  Fact 
Nos. 9, 12, 13, 20.

7 AirTouch  Cellular's  Opening  Brief,  filed  April  27,  1998 
(``AirTouch Brief'') at Exhibit A (Interconnection Agreement).

8 Joint Stipulations, Undisputed Fact No. 8.

9 In the Matter  of Implementation of Sections  3(n) and 332  of 
the Communications Act, Regulatory Treatment of Mobile Services, 
Second Report and Order, 9 FCC Rcd 1411, 1498 at  232 (1994).

10  See  Implementation  of  Sections   3(n)  and  332  of   the 
Communications Act, Regulatory Treatment of Mobile Services,  59 
FR 18493 (April 19, 1994).

11 See Joint Stipulations, Undisputed Fact No. 9.

12 Complaint at  6.  The Commission stated in 1996 that  ``[w]e 
use the term `reciprocal compensation' and `mutual compensation' 
synonymously.''  In the  Matter of Implementation  of the  Local 
Competition Provisions in  the Telecommunications  Act of  1996; 
Interconnection between Local  Exchange Carriers and  Commercial 
Mobile Radio Service  Providers, Report  and Order,  11 FCC  Rcd 
15499, 16045  at   1095, n.  2634 (1996)  (``Local  Competition 
First Report and Order'') (subseq. history omitted).

13 Complaint at  12.

14 Complaint at  9.

15 Complaint at  6; Reply of AirTouch Cellular, filed  November 
19, 1997, at  28.

16 Complaint at  9.

17 47 U.S.C.  415(b).

18 AT&T  Corp.  v.  Bell  Atlantic  -  Pennsylvania,  Memorandum 
Opinion and Order, 14 FCC Rcd 556,  12 (1998).

19 See Former Frigidaire Employees Association v.  International 
Union of Electrical  Radio and Machine  Workers, Local 801,  573 
F.Supp. 59  (S.D.  Ohio  1983).  In  Frigidaire,  the  plaintiff 
employees alleged that the defendant union violated  301 of the 
Labor-Management  Relations   Act   and   the   duty   of   fair 
representation when the union ratified an agreement that  failed 
to include an extension of recall rights.  The Court found  that 
the cause of action accrued when the agreement was ratified, and 
that ``once the original  damage is lodged,  the mere fact  that 
the Defendants are `continuing' to implement allegedly  improper 
collective bargaining  agreements does  not convert  Plaintiffs' 
loss of jobs into  a `continuing violation.'''  Frigidaire,  573 
F.Supp. at  62,  citing  Adkins v.  General  Motors  Corp.,  573 
F.Supp. 1188, 1193 (S.D. Ohio 1982).

20 AirTouch Brief at 11, n.30.

21 We note that  Pacific Bell argues that  this cause of  action 
accrued on April 28, 1994, the date the parties entered into the 
Interconnection Agreement.  See, e.g., Pacific Bell Brief at  8.  
We disagree  that the  cause  of action  accrued on  this  date.  
AirTouch's claim is that  the Interconnection Agreement was  not 
in compliance  with section  20.11  of the  Commission's  rules, 
which did not become  effective until July  18, 1994, after  the 
Interconnection Agreement was signed.

22 AirTouch Brief at 7.

23 Pacific Bell Brief at 22.

24 This claim  is not barred  by the statute  of limitations  in 
section 415(b).   We agree  with  AirTouch that  Pacific  Bell's 
failure to  pay  mutual  compensation  should  be  considered  a 
continuing violation  of  rule  section  20.11,  such  that  the 
statute of limitations would begin  with each day that the  rule 
was violated.  We  also agree  with AirTouch  that, although  it 
cannot recover damages dating back to the 1994 inception of  the 
Interconnection Agreement, it  can recover  damages for  alleged 
violations during the  two year period  from September 20,  1995 
(two years back from the filing date of the complaint) to  March 
25,  1997  (the  effective  date  of  the  new   interconnection 
agreement that  included  reciprocal  compensation  provisions).  
Complaint at  6; AirTouch Brief at 6-7.

25 Omnibus Budget Reconciliation Act  of 1993, Pub. L. No.  103-
66, Title VI,  6002(b)(2)(A), 6002(b)(2)(B), 107 Stat. 312, 392 
(1993) (``Budget Act'').

26 Implementation of Sections 3(n) and 332 of the Communications 
Act; Regulatory Treatment of Mobile Services, Second Report  and 
Order, 9 FCC Rcd  1411, 1417 at   11-12 (1994) (``CMRS  Second 
Report and Order'').

27 47 C.F.R.  20.11(b).

28 CMRS Second Report and Order, 9 FCC Rcd at 1498,  22.

29 Id. (citing The Need to Promote Competition and Efficient Use 
of Spectrum  for  Radio  Common  Carrier  Services,  Declaratory 
Ruling, 2 FCC Rcd 2910,  2915 at  44-45 (1987)  (``Declaratory 
Ruling'')).

30 Pacific Bell Brief at 21-22.

31 47 C.F.R.  20.11(b)(1) (emphasis added).

32 CMRS Second Report and Order, 9 FCC Rcd at 1498,  232.

33 Id. at  233 (emphasis added).

34 Local Competition First  Report and Order,  11 FCC Rcd  15499 
(1996).

35 Id. at  1094.

36 CMRS Second Report and Order, 9 FCC Rcd at 1498,  231.

37 Pacific Bell Brief at 19. 

38 Pacific  Bell  Brief  at  19,  citing  The  Need  to  Promote 
Competition and  Efficient  Use  of Spectrum  for  Radio  Common 
Carrier   Services   (Cellular   Interconnection    Proceeding), 
Memorandum Opinion and Order and Order on Reconsideration, 4 FCC 
Rcd 2369, 2372 at  20 (1989).

39 See AirTouch Brief at 15.

40 CMRS Second Report and Order, 9 FCC Rcd at 1498,  232.

41 Pacific Bell Brief at 5, 12.  Reverse Toll Billing  permitted 
Pacific  Bell's  subscribers  to  call  CMRS  providers'  mobile 
subscribers throughout the LATA without incurring toll  charges.  
Id. at 12-13.  

42 See, e.g.,  Wright v. Universal  Maritime Service Corp.,  525 
U.S. 70 (1998) (stating that  waiver of a statutorily  protected 
right must be clear and unmistakable).   See also Evans v. Jeff. 
D., 475 U.S. 717 (1986)  (stating that statutory rights are  not 
waivable if the waiver contravenes public policy).

43  See,  e.g.,  Joint  Stipulations,  Undisputed  Fact  No.  8; 
AirTouch Brief at 8.

44 See,  e.g.,  AirTouch Brief  at  19 (emphasis  in  original); 
AirTouch Reply Brief at 5; Proffitt Declaration at 2.

45 Pacific Bell Brief at 7.

46 Letter from David A. Gross, attorney for AirTouch to  Magalie 
Roman Salas, Secretary of the Federal Communications Commission, 
dated Jan. 19, 1999, at 1.

47 We note that the parties dispute the validity of the unsigned 
Declaration of Peter Geiler, which  was Exhibit I to  AirTouch's 
Reply Brief.   See  Letter from  David  A. Gross,  attorney  for 
AirTouch to  Magalie  Roman  Salas,  Secretary  of  the  Federal 
Communications Commission,  dated  May  29,  1998;  Letter  from 
Jeffrey B. Thomas,  Senior Counsel for  Pacific Bell to  Magalie 
Roman Salas, Secretary of the Federal Communications Commission, 
dated June 3,  1998; Letter  from David A.  Gross, attorney  for 
AirTouch to  Magalie  Roman  Salas,  Secretary  of  the  Federal 
Communications Commission,  dated June  24,  1998. We  need  not 
address these disputes  because the substantive  issues in  this 
complaint were  decided  without reference  to  this  particular 
document.

We also note that the Reply Brief of Pacific Bell contained  two 
requests to strike certain assertions made in AirTouch's  Brief.  
See Reply Brief  of Pacific Bell,  filed May 18,  1998, at  n.1, 
n.13.  We need not address  these motions to strike because  the 
substantive  issues  in  this  complaint  were  decided  without 
reference to those particular assertions.