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


In the Matter of                 )
                                )
Cellexis International, Inc.,    )
                                 )    File Nos. WB/ENF-F-97-001
    Complainant,                 )                    WB/ENF-F-
                                )    97-002
                        v.       )                    WB/ENF-F-
                                )    97-003
Bell Atlantic NYNEX Mobile       )
Systems, Inc.,                   )
Cellco Partnership, and          )
Washington D.C. SMSA Limited     )
Partnership,                     )
                                 )
    Defendants.
     

                  MEMORANDUM OPINION AND ORDER

   Adopted:  December 12, 2001          Released:  December 19, 
2001

By the Commission:

I.   INTRODUCTION

     1.   In this Memorandum Opinion and Order, we deny a formal 
complaint filed by Cellexis International, Inc. (``Cellexis'') 
against Bell Atlantic NYNEX Mobile, Inc.,1 Cellco Partnership 
(``Cellco''), and Washington D.C. SMSA Limited Partnership 
(``Washington SMSA'') (collectively, ``Defendants'') pursuant to 
section 208 of the Communications Act of 1934, as amended 
(``Act'').2  In short, the complaint alleges that Defendants 
violated sections 201(b), 202(a), 251(a), and 332(c)(1)(B) of the 
Act3 by refusing to continue to interconnect their cellular 
networks with Cellexis's switch so that Cellexis could provide 
resale cellular service.  

     2.   At this juncture, Cellexis's only remaining claim is 
for violation of section 202(a) of the Act.4  As discussed below, 
we deny the section 202(a) claim, because Cellexis has failed to 
show that Defendants provided a ``like communication service'' to 
other customers that Defendants refused to provide to Cellexis.

II.  BACKGROUND

     II.A.     The Parties and Their Business Relationship

     3.   Cellexis is an Arizona corporation that provides 
commercial mobile radio service (``CMRS'') as an agent for 
facilities-based CMRS providers or as a reseller of their 
services.5  Washington SMSA and Cellco provide facilities-based 
CMRS as communications common carriers in the Washington, D.C. 
and Baltimore, Maryland service areas, respectively, in 
accordance with licenses from this Commission.6  Bell Atlantic 
Mobile is a Delaware corporation that holds majority ownership 
interests in Washington SMSA and Cellco.7  It is the managing 
general partner of Cellco, which, in turn, is the general partner 
of Washington SMSA.8  Bell Atlantic Mobile does not itself 
provide common carrier services, however.9

     4.   In order to operate its system, Cellexis must enter 
into agreements with other carriers that provide Cellexis with 
access to local cellular phone numbers and airtime.10  Cellexis 
and Defendants entered into such an agreement in the fall of 1993 
with respect to the southwest United States.11  With Defendants' 
consent, in early 1994, Cellexis began providing prepaid cellular 
services in the Phoenix, Arizona market, utilizing proprietary 
technology involving a computer chip installed in a customer's 
cellular telephone that shut off the phone when prepaid airtime 
ran out.12  Thereafter, Cellexis developed technology to provide 
prepaid cellular service that did not require any modifications 
of a customer's phone.  Specifically, a switch and billing 
platform in Cellexis's office was connected to Defendants' mobile 
telephone switching office (``MTSO''), which permitted calls to 
and from the mobile phones of prepaid cellular customers to be 
routed through Cellexis's billing platform.  As a result, 
Cellexis could record usage on a real-time basis and disallow 
service when a customer used all of his or her prepaid airtime.13 

     5.   In approximately June 1995, Defendants and Cellexis 
entered into discussions concerning Cellexis's offering of a 
prepaid cellular service in the Washington-Baltimore area, as a 
reseller of Defendants' services, through interconnection between 
Defendants' cellular network and Cellexis's switch.14  When 
negotiations between the parties ended in late 1995, Cellexis 
believed that it and Defendants already had entered into a 
binding contract calling for such interconnection.15  Defendants, 
on the other hand, disagreed and sought further negotiations and 
modifications to Cellexis's proposals.16  Cellexis subsequently 
filed a complaint in the United States District Court for the 
District of Columbia seeking to enforce the alleged 
interconnection agreement with Defendants.17  The lawsuit was 
resolved prior to decision by a ``Memorandum of Understanding'' 
executed by the parties on February 20, 1996, in which Cellexis 
and Defendants agreed to enter into a temporary interconnection 
agreement.18 

     6.   On May 20, 1996, Cellexis and Defendants executed a 
``Service Trial Agreement'' (``Agreement''), which permitted 
Defendants ``to conduct a trial to evaluate a possible Bell 
Atlantic NYNEX Mobile network offering and to evaluate the 
marketing of such network offering to Cellexis and to other 
entities who might wish to offer a similar service and to 
determine whether Bell Atlantic Mobile NYNEX has any further 
interest in making such an offering available in the Washington 
D.C./Baltimore market or elsewhere.''19  The Agreement 
specifically provided for the interconnection of Cellexis's 
switch with Defendants' MTSOs.20  According to the Agreement, the 
service trial ``commenced on or about February 20, 1996 and . . . 
end[ed] on or about February 19, 1997.''21  Although neither 
party was obligated to renew the Agreement, Defendants were 
required to give Cellexis ninety days' notice if they intended 
not to renew.22

     7.   Cellexis began providing prepaid cellular services in 
the Washington, D.C. and Baltimore, Maryland areas on or about 
February 20, 1996.23  On October 11, 1996, Defendants notified 
Cellexis that they intended to terminate the Agreement and 
service thereunder on February 19, 1997.24
     II.B.     The Instant Proceeding
     8.   Cellexis filed its Complaint with the Commission on 
December 20, 1996, alleging that (1) Defendants' refusal to 
continue interconnection with Cellexis was ``unreasonably 
discriminatory,'' in violation of section 202(a) of the Act;25 
(2) Defendants' decision to terminate interconnection with 
Cellexis violated the ``express interconnection requirement'' 
contained in section 251(a) of the Act;26 (3) Defendants' refusal 
to continue interconnection was ``unjust and unreasonable,'' in 
violation of section 201(b) of the Act and the Hush-A-Phone line 
of cases interpreting that section;27 and (4) Defendants' refusal 
of Cellexis's ``reasonable interconnection request'' violated 
sections 332(c)(1)(B) and 201(a) of the Act.28  Defendants' 
Answer sets forth four affirmative defenses, i.e., that (1) the 
conduct alleged, even if true, is lawful and justified;29 (2) 
CMRS providers are not required to provide physical 
interconnection arrangements with resellers, and requiring such 
interconnection would violate section 332 of the Act and the 
Commission's policies;30 (3) the Agreement specifically permits 
Defendants to terminate their interconnections with Cellexis, and 
the Commission is without jurisdiction to modify, extend, or 
enforce a private contract;31 and (4) Cellexis's claims are 
barred by the equitable doctrines of waiver, estoppel and/or 
unclean hands.32 

III.      DISCUSSION     

     III.A.    The Commission Has Authority to Adjudicate 
          Cellexis's Claims.

     9.   Defendants correctly note that, pursuant to the 
Agreement's terms, interconnection with Cellexis ``automatically 
terminate[d]'' on February 19, 1997, and neither party was 
``under any obligation to renew'' the Agreement.33  We do not 
agree with Defendants, however, that the termination provisions 
of the Agreement preclude Cellexis's Complaint or deprive us of 
jurisdiction to consider it.34  Although the Agreement clearly 
does not obligate Defendants to interconnect with Cellexis after 
February 19, 1997, Cellexis did not therein waive its rights 
under the Communications Act.  The Agreement, accordingly, also 
does not alter whatever rights to interconnection Cellexis may 
have under the Act.  We concur with Cellexis that Defendants' 
statutory interconnection obligations, whatever they may be, 
exist independent of the Agreement's terms.35  Therefore, we have 
authority to consider Cellexis's assertions that Defendants 
violated the Act by refusing to interconnect.

     III.B.    Defendants' Conduct Did Not Violate Section 202(a) 
          of the Act, Because the Services that Defendants 
          Provided to Other Customers Were Not ``Like'' the 
          Service Defendants Provided to Cellexis.

     10.  Cellexis's only remaining claim arises under section 
202(a) of the Act,36 which makes it unlawful for any common 
carrier to discriminate unjustly or unreasonably in its provision 
of ``like communication service.''37  The Commission and the 
courts have held that a three-step inquiry is required to 
determine whether a violation of section 202(a) has occurred:  
(1) whether the services at issue are ``like''; (2) if they are, 
whether there are differences in the terms and conditions 
pursuant to which the services are provided; and (3) if so, 
whether the differences are reasonable.38  When a complainant 
establishes the first two components, the burden of persuasion 
shifts to the defendant carrier to justify the discrimination as 
reasonable.39

     11.  Cellexis maintains that Defendants have unlawfully 
refused to provide it with a communication service that they 
provide to other customers.  Thus, under the forgoing analysis 
Cellexis bears the initial burden of demonstrating the 
``likeness'' of the service it seeks to the services that 
Defendants provided to others.  A ``functional equivalency'' test 
guides our assessment of whether Cellexis has satisfied that 
burden.  We have described the ``functional equivalency'' test as 
follows:

     This test looks to whether there are any material 
     functional differences between the services.  An 
     important aspect of the test, as it has evolved, 
     involves reliance upon customer perception to help 
     determine whether the services being compared provide 
     the same or equivalent functions.  The test asks 
     whether the services at issue are ``different in any 
     material respect'' and requires the Commission to 
     examine both the nature of the services and the 
     customer perception of the functional equivalency of 
     the services.  The test presumes that not all 
     differences between the services make them a priori 
     unlike.  Rather, the differences must be functionally 
     material or, put another way, of practical significance 
     to customers.40

     12.  As a preliminary matter, we reject Defendants' 
assertion that an introductory clause of the Agreement, which 
characterizes Cellexis's service as ``requir[ing] a unique 
network offering of [Defendants'] cellular network,''41 
constitutes a ``complete bar to Cellexis' claim.''42  Although 
the quoted language may demonstrate that the parties, at the time 
they executed the Agreement, perceived the interconnection 
afforded to Cellexis to be ``unique'' in some unidentified 
respects, the recital alone does not govern whether the service 
Cellexis seeks differs in functionally material respects from 
services offered to other customers.  Accordingly, we turn to the 
allegedly comparable services - ``Mobile Minutes''43 and ``Mobile 
Direct.''44

          III.B.1.  Mobile Minutes

     13.  Mobile Minutes is a prepaid cellular service that 
Defendants sell to the public.45  Although Mobile Minutes is 
similar to the prepaid service Cellexis offers to the public, 
Cellexis does not seek to purchase Mobile Minutes from 
Defendants.  Indeed, it is undisputed that Defendants offered 
Cellexis the opportunity to purchase Mobile Minutes service for 
resale, and that Cellexis declined the offer.46  Rather, the 
service Cellexis seeks is interconnection of its switch with the 
mobile switches of Washington SMSA and Cellco (i.e., 
interconnection like Cellexis received under the Agreement).47  
Cellexis argues that this interconnection service is comparable 
to (1) the manner in which Bell Atlantic Mobile purportedly 
``allow[s] its own distribution arms to interconnect a switch to 
its network'';48 and (2) the manner in which Defendants 
interconnect their mobile network with a third-party billing 
platform furnished by Boston Communications Group (``BCG'').49  
We reject both claims.

     14.  First, Cellexis mischaracterizes Bell Atlantic Mobile 
as a carrier furnishing interconnection service to its 
affiliates.  Although the pleadings generally describe the 
conduct at issue in this case as being undertaken by all three 
Defendants collectively,50 it appears that Bell Atlantic Mobile 
is situated differently from its co-defendants.  Specifically, 
Bell Atlantic Mobile does not itself provide common carrier 
services.51  It is, instead, the principal owner and effective 
managing partner of Washington SMSA and Cellco, which themselves 
provide common carrier service.52  Thus, Bell Atlantic Mobile 
does not use Washington SMSA and Cellco as ``distribution arms'' 
and, in particular, does not provide Mobile Minutes through 
interconnection with Washington SMSA and Cellco.  Consequently, 
Bell Atlantic Mobile does not interconnect with Washington SMSA 
or Cellco in any way that is ``like'' the interconnection sought 
by Cellexis.  

     15.  Second, Cellexis's focus on the relationship between 
Defendants and BCG is misdirected and irrelevant to a 
discrimination analysis.  Section 202(a)'s prohibition against 
unreasonable discrimination pertains to the provision of ``like 
communication service.''53  BCG, however, is not a customer 
purchasing a service from Defendants.  Rather, it is a vendor 
selling facilities and technology to Defendants.54  Defendants, 
in turn, utilize the facilities and technology to furnish Mobile 
Minutes service to their customers, but, again, Cellexis does not 
wish to purchase Mobile Minutes service.

     16.  In sum, Cellexis has not shown that Mobile Minutes is 
``like'' the service sought by it from Defendants.  Hence, 
Cellexis's claim under section 202(a), based on Defendants' 
provision of Mobile Minutes service to other users, must fail.55

          III.B.2.  Mobile Direct 

     17.  Mobile Direct is a service offering of the Defendants 
suitable for large corporate users.  It provides an alternative 
routing for mobile phones through the customers' PBXs or Centrex 
office phone systems.56  Defendants advertise that, with the 
service, ``local cellular phones operate like PBX/Centrex 
extensions and allow direct access to any least-cost routing 
capability [a] company has negotiated with [its] long distance 
carrier.''57  For most Mobile Direct customers, special 
programming in the Defendants' switches routes the customer's 
mobile phone calls from the Defendants' network to the customer's 
PBX using individual analog circuits.58  Three customers 
nationwide, however, are provided a T-1 connection between 
Defendants' network and their PBX.59  

     18.  Cellexis argues that the service it sought from 
Defendants was ``like'' Mobile Direct Service offered to others, 
because ``[Defendants] provide similarly-situated [Mobile Direct] 
customers with the same type of switch interconnection over a T-1 
line that Cellexis seeks.''60  For the reasons described below, 
we disagree.

     19.  T-1 lines are used to provide most telecommunications 
service, and this sole similarity between Mobile Direct service 
and Cellexis's service alone does not make the services 
``functionally equivalent.''  Indeed, it is the purpose of a 
technical configuration, not the configuration itself, that is 
relevant in determining functional equivalence.61  In this case, 
we find that the interconnection of Cellexis's system was 
accomplished in a manner to meet Cellexis's unique needs, i.e., 
(1) to monitor the usage of its customers for all their calls on 
a real-time basis; (2) to deny service immediately when customers 
exhausted their prepaid usage; and (3) to restrict calls to the 
Washington-Baltimore service areas.62

     20.  Specifically, although Mobile Direct service in a few 
instances involves the use of a T-1 circuit interconnection 
between a switch on Defendants' network and a switching device on 
a customer's premises, there are a number of significant 
differences between the facilities arrangements provided to 
Mobile Direct customers (including those with T-1 connections) 
and those required for Cellexis's service.  First, Cellexis 
utilized ``bottleneck'' call routing, in which all calls to or 
from the mobile phones of its customers were routed through 
Cellexis's switch, so that Cellexis could monitor usage and cut 
off service to customers when necessary.  In contrast, Mobile 
Direct users do not require ``bottleneck'' routing through their 
PBXs, and calls to and from these customers' mobile units also 
may be completed over Defendants' network, in the same manner as 
calls of its other subscribers, without transiting customers' 
PBXs.63  Second, Cellexis's mobile phones were assigned 
``pseudo'' numbers so that they could not be reached over the 
public network without going through Cellexis's switch.64  By 
contrast, the mobile phones of Mobile Direct customers are 
assigned regular cellular phone numbers and may be called from 
the public telephone network without transiting the customer's 
PBX.65  Third, Cellexis's customers were able to make calls only 
within the Washington-Baltimore service areas, not as roamers in 
other markets.  The mobile phones of Mobile Direct customers, on 
the other hand, may be used to make calls while roaming in other 
markets.66  Finally, Cellexis's service used Feature Group D 
signaling to enable Cellexis rapidly to identify its customers 
and their account balances prior to routing their calls.  Mobile 
Direct, however, employs traditional PBX-type signaling.67

     21.  Cellexis responds that these service differences were 
imposed upon it by Defendants or that Defendants would make the 
same features needed for its service available to other Mobile 
Direct customers.68  It appears from the record, however, that 
Defendants designed the service features and configuration of 
Cellexis's service to meet Cellexis's unique requirements.69  
Moreover, beyond its assertion regarding T-1 lines (which, as 
explained above, has little persuasive force), Cellexis has not 
shown that any Mobile Direct service configuration exists for any 
other customer with features similar to those used by Cellexis.  

     22.  In short, we conclude that Mobile Direct service 
differs in functionally material respects from Cellexis's 
service.  Therefore, Mobile Direct service is not ``like'' the 
service sought by Cellexis, and Cellexis's claim under section 
202(a), consequently, must fail.
IV.  ORDERING CLAUSES

     23.  Accordingly, IT IS ORDERED, pursuant to sections 1, 
4(i), 4(j), 201(b), 202(a), 208, 251(a), and 332(c)(1)(B) of the 
Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 
154(j), 201(b), 202(a), 208, 251(a), and 332(c)(1)(B), that the 
above-captioned complaint filed by Cellexis International, Inc. 
IS DENIED IN PART, to the extent specified herein, and otherwise 
IS DISMISSED AS MOOT.

     24.  IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 
4(j), and 208 of the Communications Act of 1934, as amended, 47 
U.S.C.  151, 154(i), 154(j), and 208, that the ``Emergency 
Motion for Temporary Relief'' filed by Cellexis IS DISMISSED AS 
MOOT.

     25.  IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 
4(j), 201(b), and 208 of the Communications Act of 1934, as 
amended, 47 U.S.C.  151, 154(i), 154(j), 201(b), and 208, that 
the letter-order issued in this proceeding on May 12, 1997 by the 
Chief, Enforcement Division, Wireless Telecommunications Bureau, 
as well as our Memorandum Opinion and Order denying BCG's 
Application for Review and upholding the Bureau letter-order, 
adopted on October 28 1998, 13 FCC Rcd 22467, ARE VACATED.

     26.  IT IS FURTHER ORDERED that this proceeding IS 
TERMINATED.

                                                                 
FEDERAL COMMUNICATIONS COMMISSION

                         

                              Magalie Roman Salas                                                      
                              Secretary

_________________________

1         In the caption of its complaint, Cellexis incorrectly 
identified ``Bell Atlantic NYNEX Mobile, Inc.'' as ``Bell 
Atlantic NYNEX Mobile Systems, Inc.''  Because subsequent 
pleadings and orders in this proceeding continued to use 
Cellexis's caption, it appears here as well.
     Subsequent to the filing of the complaint, there were a 
number of corporate mergers and name changes affecting Bell 
Atlantic NYNEX Mobile, Inc.  At present, the wireless systems of 
Bell Atlantic Corporation operate under the name Verizon 
Wireless.  See Defendants' Supplemental Brief, File Nos. WB/ENF-
F-97-001, -002, -003 (filed May 29, 2001) (``Defendants' 
Supplemental Brief'') at 4-5.  In this order, however, we refer 
to Bell Atlantic NYNEX Mobile, Inc. as ``Bell Atlantic Mobile.''
2         47 U.S.C.  208.
3         47 U.S.C.  201(b), 202(a), 251(a), and 332(c)(1)(B).
4         The parties agree that the Commission's recent decision 
in Interconnection and Resale Obligations Pertaining to 
Commercial Mobile Radio Service, Fourth Report and Order, 15 FCC 
Rcd 13523, 13524,  1 (2000), Memorandum Opinion and Order on 
Reconsideration, 16 FCC Rcd 10009, 10009,  1 (2001), resolves in 
Defendants' favor Cellexis's claims under sections 201, 251, and 
332 of the Act.   Supplemental Brief, File Nos. WB/ENF-F-97-001, 
-002, -003 (filed May 30, 2001) (``Cellexis's Supplemental 
Brief'') at 3, 10;  Defendants' Supplemental Brief at 2, 8-10; 
Supplemental Reply Brief, File Nos. WB/ENF-F-97-001, -002, -003 
(filed June 8, 2001) (``Cellexis's Supplemental Reply Brief'') at 
2, 6-7; Defendants' Supplemental Reply Brief, File Nos. WB/ENF-F-
97-001, -002, -003 (filed June 8, 2001) (``Defendants' 
Supplemental Reply Brief'') at 2.  We hereby deem those claims 
moot.
5         Formal Complaint, File Nos. WB/ENF-F-97-001, -002, -003 
(filed Dec. 20, 1996) (``Complaint'') at  3; Answer, File Nos. 
WB/ENF-F-97-001, -002, -003 (filed Jan. 24, 1997) (``Answer'') at 
 3.
6         Complaint  at     4;  Answer  at     4;   Defendants' 
Supplemental Brief at 2.
7         Complaint at  4; Answer at  4.
8         Brief of Defendants Bell Atlantic Mobile, Inc., et al., 
File Nos. WB/ENF-F-97-001, -002, -003 (filed Dec. 11, 1997) 
(``Defendants' Brief'') at 1 n.1.
9         See Letter from John T. Scott, III, counsel for 
Defendants, to Howard C. Davenport, Chief, Enforcement Division, 
Wireless Telecommunications Bureau, File Nos. WB/ENF-F-97-001, -
002, -003 (dated July 14, 1998).
10   Complaint at  9.
11   Id; Answer at  9.
12   Id.
13   Complaint at  10; Answer at  10.
14   Complaint at  13; Answer at 13. 
15   Complaint at  14; Answer at  14.
16   Id.; Defendants' Brief at 3-4. 
17   Id..; See  Cellexis  International, Inc.  v.  Bell  Atlantic 
Mobile Systems  of Washington,  Inc.,  Case No.  96-CV-185  (EGS) 
(D.D.C.).
18   Complaint at  15; Answer at  15.
19   Complaint, Exhibit 1 (Agreement at 1).
20   Id., Exhibit 1 (Agreement at  6(a)).
21   Id., Exhibit 1 (Agreement at  2).
22   Id., Exhibit 1 (Agreement at  18(a)).
23   Complaint at  15; Answer at  15.
24   Complaint at  16; Answer at  16.
25   Complaint at  21-28.  
26   Id. at  29-32.
27   Id. at  33-41 (citing Hush-A-Phone Corp. v. United States, 
238 F.2d 266 (D.C. Cir. 1956)).
28   Id. at  42-45.  Along with its Complaint, Cellexis filed 
an ``Emergency Motion for Temporary Relief,'' which sought an 
order prohibiting Defendants from terminating their 
interconnection arrangements with Cellexis until the Commission 
ruled on the Complaint.  See Emergency Motion for Temporary 
Relief, File Nos. WB/ENF-F-97-001, -002, -003 (filed Dec. 20, 
1996) (``Emergency Motion'') at 2.  Defendants opposed the 
Emergency Motion.  See Opposition to Motion for Temporary Relief, 
File Nos. WB/ENF-F-97-001, -002, -003 (filed Jan. 7, 1997) 
(``Opposition to Motion'').  In order to remove the need for the 
Commission to act on the Emergency Motion, Defendants agreed to 
postpone termination of their interconnections with Cellexis for 
a thirty-day period.  See Letter from John T. Scott, III, counsel 
for Defendants, to Howard C. Davenport, Chief, Enforcement 
Division, Wireless Telecommunications Bureau, File Nos. WB/ENF-F-
97-001, -002, -003 (dated Feb. 13, 1997).  Thereafter, Defendants 
agreed to continue service to Cellexis's existing customers 
pending resolution of the Complaint.  See Letter from John T. 
Scott, III, counsel for Defendants, to Howard C. Davenport, 
Chief, Enforcement Division, Wireless Telecommunications Bureau, 
File Nos. WB/ENF-F-97-001, -002, -003 (dated Mar. 13, 1997).  
Cellexis maintains that its service nevertheless became 
economically non-viable over time (as a result of customer 
attrition and an inability to add new customers), and it 
discontinued providing service in the Baltimore/Washington area 
in April 1998.  See Letter from John T. Scott, III, counsel for 
Defendants, to Howard C. Davenport, Chief, Enforcement Division, 
Wireless Telecommunications Bureau, File Nos. WB/ENF-F-97-001, -
002, -003 (dated May 18, 1997).  This renders the Emergency 
Motion moot. 
29   Answer at 10-11.
30   Id. at 12-13.
31   Id. at 13-14.
32   Id. at 14.  In addition, Defendants argue that the Complaint 
should be dismissed because Washington SMSA no longer is a 
defendant in this proceeding.  Cellexis previously was a party to 
litigation against GTE Corporation (``GTE'') in the United States 
District Court for the District of Arizona.  That litigation was 
resolved pursuant to a settlement agreement in which Cellexis 
agreed ``not to institute any proceeding . . . seeking 
interconnection with wireless facilities owned by GTE or a GTE 
partnership . . . .''  Letter from John T. Scott, counsel for 
Defendants, to Howard C. Davenport, Chief, Enforcement Division, 
Wireless Telecommunications Bureau, File Nos. WB/ENF-F-97-001, -
002, -003 (dated Feb. 7, 1997) (attached May 14, 1996 Settlement 
Agreement between Cellexis and GTE at  7.3).  On May 27, 1998, 
the court held that the settlement agreement prohibited Cellexis 
from pursuing the instant Complaint against Washington SMSA, 
because GTE held a minority partnership interest in Washington 
SMSA.  The court also enjoined Cellexis from continuing the 
prosecution of its Complaint ``as it pertains to the Washington 
Partnership.''  See Letter from John T. Scott, III, counsel for 
Defendants, to Howard C. Davenport, Chief, Enforcement Division, 
Wireless Telecommunications Bureau, File Nos. WB/ENF-F-97-001, -
002, -003 (dated June 4, 1998) (citing GTE Mobilnet Service Corp. 
v. Cellexis International, Inc., Civ-97-703-PHX-ROS (D. Ariz. May 
21, 1998)).  Accordingly, upon Cellexis's motion, the Complaint 
against Washington SMSA was dismissed with prejudice.  See Letter 
from Frank G. Lamancusa, Deputy Chief, Market Disputes Resolution 
Division, Enforcement Bureau, to Alfred M. Mamlet, James M. 
Talens, and Matthew S. Yeo, counsel for Cellexis, and John T. 
Scott, III, counsel for Defendants, File Nos. WB/ENF-F-97-001, -
002, -003 (dated Feb. 29, 2000).  Defendants maintain that 
Washington SMSA is ``an indispensable party,'' and that the 
dismissal of the Complaint against it requires dismissal of the 
entire Complaint.  See Letter from John T. Scott, III, counsel 
for Defendants, to Howard C. Davenport, Chief, Enforcement 
Division, Wireless Telecommunications Bureau, File Nos. WB/ENF-F-
97-001, -002, -003 (dated July 14, 1998).  In light of our 
conclusion that Cellexis's complaint should be denied on the 
merits, we need not rule on this issue.
33   Defendants'  Brief  at   46.   See   Complaint,  Exhibit   1 
(Agreement at  18(a)).
34   See Answer at 13.
35   See Final Reply, Cellexis International, Inc., File Nos. 
WB/ENF-F-97-001, -002, -003 (filed Jan. 2, 1998) (``Cellexis's 
Reply Brief'') at 6.
36   See note 4, supra.
37   47 U.S.C.  202(a) (``It shall be unlawful for any common 
carrier to make any unjust or unreasonable discrimination in 
charges, practices, classifications, regulations, facilities, or 
services for or in connection with like communication service . . 
. .'').
38   See, e.g., Competitive Telecommunications Ass'n v. FCC, 998 
F.2d 1058, 1061 (D.C. Cir. 1993); MCI Telecommunications Corp. v. 
FCC, 842 F.2d 1296, 1303 (D.C. Cir 1988); Beehive Telephone, Inc. 
v. Bell Operating Companies, 10 FCC Rcd 10562, 10567,  27 
(1995); Metrocall, Inc. v. Worldcom, Inc., 15 FCC Rcd 10826, 
10830 (Enf. Bur. 2000). 
39   See National Communications Ass'n, Inc. v. AT&T Corp., 
238 F.3d 124, 129-30 (2nd Cir. 2001); Implementation of the 
Telecommunications Act of 1996: Amendment of Rules Governing 
Procedures to Be Followed When Formal Complaints Are Filed 
Against Common Carriers, Report and Order, 12 FCC Rcd 22497, 
22615,  291 & n.782 (1997), recon. denied, 16 FCC Rcd 5681 
(2001); PanAmSat Corp. v. Comsat Corp., Memorandum Opinion 
and Order, 12 FCC Rcd 6952, 6965,  34 n.90 (1997).
40   Beehive Telephone, Inc. v. Bell Operating Companies, 10 FCC 
Rcd at 10567,  28 (1995).  See also Ad Hoc Telecommunications 
Users Committee v. FCC, 680 F.2d 790, 795-96 (D.C. Cir. 1982); 
American Broadcasting Corp. v. FCC, 663 F.2d 133, 138-39 (D.C. 
Cir. 1980).
41   Complaint, Exhibit 1 (Agreement at 1) (emphasis added).
42   Defendants' Brief at 26.
43   Complaint at  24-25.
44   Id. at  26-28.
45   Complaint at  24; Defendants' Brief at 25.
46   Defendants' Brief at 25, Attachment 2 (Letter from Gary 
Stannek, Bell Atlantic Mobile, to Larry L. Day, Cellexis, dated 
September 11, 1997); Opposition to Motion, Attachment 1 (Letter 
from Katherine S. Abrams to Alfred M. Mamlet, dated December 16, 
1996).
47 Cellexis's Reply Brief at 17-18 (``The interconnection that 
[Bell Atlantic Mobile] provides to support its affiliates' 
provision of Mobile Minutes is the functional equivalent of the 
interconnection Cellexis seeks. . . . [Bell Atlantic Mobile] 
offers its distribution arms an interconnection service that is 
precisely the service Cellexis seeks.'') (emphasis added).
48   Final Brief of Cellexis International, Inc., File Nos. 
WB/ENF-F-97-001, -002, -003 (filed Dec. 17, 1997) (``Cellexis's 
Brief'') at 15 (citing Amendment of Parts 2 and 22 of the 
Commission's Rules Relative to Cellular Communications Systems, 
Report and Order, 86 F.C.C. 2d 469, 511 (1981) and Cellnet 
Communications v. Detroit SMSA, Memorandum Opinion and Order, 9 
FCC Rcd 3341, 3344 (Com. Car. Bur. 1994)).  See also Complaint at 
 25 (same). 
49   Cellexis's Brief at 16-17.  See also Cellexis's Reply  Brief 
at 18-19.
50   This order, accordingly, does the same.
51   See note 9, supra.
52   Reply Brief of Defendants, File Nos. WB/ENF-F-97-001, -002, 
-003 (filed Jan. 2, 1998) (``Defendants' Reply Brief'') at 11; 
Cellexis's Supplemental Reply Brief at 6.  See paragraph 3, 
supra.

53   47 U.S.C.  202(a) (emphasis added).
54   See Defendants' Brief at 27-28.
55          In advance of discovery by the parties, Commission 
staff directed Defendants to provide certain information 
concerning the marketing, provision, and network configuration of 
``Mobile Minutes.''  See Letter from Howard C. Davenport, Chief, 
Enforcement Division, Wireless Telecommunications Bureau, to 
Alfred M. Mamlet and James M. Talens, counsel for Cellexis, and 
John T. Scott, III, counsel for Defendants (dated Feb. 26, 1997).  
Defendants and BCG each moved for a protective order (see 
Defendants' Motion for Protective Order, File No. WB/ENF-F-97-
001, -002, -003 (filed Mar. 21, 1997); BCG's Motion for 
Protective Order, File No. WB/ENF-F-97-001, -002, -003 (filed 
Mar. 21, 1997)), which Commission staff denied in part.  See 
Letter from Howard C. Davenport, Chief, Enforcement Division, 
Wireless Telecommunications Bureau, to Alfred M. Mamlet and James 
M. Talens, counsel for Cellexis; John T. Scott, III, counsel for 
Defendants; and Barry A. Friedman and Scott A. Fenske, counsel 
for BCG (dated May 12, 1997).  BCG subsequently filed an 
Application for Review of the staff's letter-order.  See 
Application for Review by BCG, File Nos. WB/ENF-F-97-001, -002, -
003 (filed May 19, 1997) (``Application for Review'').  After we 
denied the Application for Review (see Cellexis v. Bell Atlantic 
NYNEX Mobile, Inc., Memorandum Opinion and Order, 13 FCC Rcd 
22467 (1998)), BCG appealed to the United States Court of Appeals 
for the District of Columbia Circuit.  See Boston Communications 
Group v. Federal Communication Commission, Case No. 98-151, 
Petition for Review (filed Nov. 12, 1998).  The Court enjoined 
the Commission from disclosing the information pending 
disposition of BCG's appeal.  See id., Order (issued Nov. 18, 
1998).  Briefing in the appellate proceeding has been stayed, and 
the appeal is still pending.  See id., Order (issued Apr. 13, 
1999). 

            Cellexis objects to the Commission's issuance of a 
decision on its section 202(a) claim ``until all of the Mobile 
Minutes information it has requested from BCG is provided and 
further briefs are filed and made part of the record in this 
proceeding.''  Cellexis's Supplemental Brief at 2 n.1.  But 
Cellexis fails to explain how it is prejudiced by a lack of 
access to this information, and we perceive no such prejudice.  
The information in question might have been probative only with 
respect to Cellexis's claims under sections 201, 251, and 332, 
which we deny in light of the Fourth Report and Order.  See note 
4, supra.  The information is not relevant to Cellexis's section 
202(a) claim, because, whatever Defendants' internal facility 
arrangements for Mobile Minutes service may be, the arrangements 
are not being offered or provided to a customer.  See discussion, 
supra, section III.B.1.  Accordingly, we hereby vacate the 
staff's May 12, 1997 letter-order and our October 28, 1998 Order 
on Review, and instruct the staff to return the confidential BCG 
information to Defendants.

56   Complaint at  26; Answer at  26.
57   Complaint, Exhibit 5.
58   See Letter from John T. Scott, III, counsel for Defendants, 
to Howard C. Davenport, Chief, Enforcement Division, Wireless 
Telecommunications Bureau (dated Mar. 6, 1997) (attached Response 
to the FCC's 2/27/97 Questions at C.1).
59   Defendants' Brief at 39.  
60   Complaint  at    26.   See  also  Complaint  at    26-28; 
Cellexis's Brief at 9-15; Cellexis's Reply Brief at 6-16.
61   See Ad Hoc Telecommunications Users Committee v. FCC, 680 
F.2d at 803-04 (concurring opinion) (``The word `service' as it 
is used in section 202(a) refers to the entire package of 
benefits, rights, restrictions, duties, facilities and services 
contracted for between the customer and the communications 
carrier and is not restricted to the physical facilities that are 
used in long distance calls.''); Beehive Telephone, 10 FCC Rcd at 
10567,  30 (an assessment of whether services are ``like'' must 
focus on the practical significance of the service to users).
62   Defendants' Reply Brief at 20-22.
63   Defendants' Brief at 42-43.
64   Pseudo numbers are special telephone numbers (i.e., not 
regular cellular telephone numbers) that permit Cellexis to block 
calls of its customers originating outside its geographic area.  
Defendants' Brief at 43. 
65   Id.
66   Id. 
67   Id. at 43-44.
68   Cellexis's Brief at 10-15; Cellexis's Reply Brief at 8-10.
69   Defendants' Reply Brief at 20-22.