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

                              
)                               )
Jacqueline Orloff,              )
)                               )
                               )
    Complainant,               )        File No. EB-01-MD-009
                               )
         v.                    )
Vodafone AirTouch Licenses      )
LLC,                            )
d/b/a Verizon Wireless,         )
                               )
                       and                                           )
New Par,                        )
                               )
    Defendants.                )



                MEMORANDUM OPINION AND ORDER

     Adopted:  May 13, 2002           Released:  May 16, 2002


By the Commission:

I.   INTRODUCTION

1.   In this Memorandum Opinion and Order, we deny the 
   formal complaint that Jacqueline Orloff (``Orloff'') 
   filed against Vodafone Airtouch Licenses LLC, d/b/a 
   Verizon Wireless, and its affiliate, New Par,1 pursuant 
   to a primary jurisdiction referral and section 208 of the 
   Communications Act of 1934, as amended (``Act'').2  In 
   short, Orloff's complaint alleges that Defendants 
   violated sections 201 and 202 of the Act by offering 
   discounts and other inducements to certain customers 
   taking service under Defendants' wireless calling plans 
   that Defendants did not make available to Orloff. 3  We 
   find that Orloff has not established that Defendants' 
   challenged practices were unreasonably discriminatory, in 
   violation of section 202(a) of the Act, or unjust and 
   unreasonable, in violation of section 201(b) of the Act. 

II.  BACKGROUND

     A.   The Parties

2.   Orloff is an individual consumer of cellular telephone 
   service in the Cleveland, Ohio area.4  At all relevant 
   times, New Par was licensed and furnished service as a 
   commercial mobile radio service (``CMRS'') provider in 
   the Cleveland, Ohio, market.5  New Par is a general 
   partnership in which Verizon Wireless (VAW) LLC is the 
   majority partner.6       B.   State of Competition in the Cleveland Ohio, CMRS 
     Market
      
3.   For purposes of adjudicating Orloff's complaint, the 
   relevant period is January 1, 1999 through February 9, 
   2001, because it was during this period that Orloff 
   negotiated, purchased, and received cellular service from 
   Defendants.7  Moreover, the relevant geographic market is 
   the Cleveland, Ohio metropolitan statistical area 
   (``MSA''),8 because that is where Orloff resided and 
   sought CMRS service from Defendants.9
  
4.   During the relevant period, consumers seeking CMRS 
   service in the Cleveland, Ohio MSA could choose between 
   two cellular providers (New Par and GTE Mobilnet), two 
   personal communications service (``PCS'') providers 
   (Ameritech and AT&T), and one enhanced specialized mobile 
   radio (``SMR'') provider (Nextel).10  In addition to 
   these five facilities-based providers, various resellers 
   also served the market.11  

5.   These providers offered to consumers many different 
   types of service packages, which combined a variety of 
   features such as unlimited weekend calling, free long 
   distance, voice mail, text messaging, no activation fees, 
   extended geographic coverage, and discounted additional 
   lines.12  In addition, these providers regularly designed 
   new offerings to attract customers to their service, 
   including plans with significant bundled minutes and less 
   restrictive terms and conditions.13  Moreover, the 
   providers frequently presented special promotions to 
   consumers, including reduced activation fees and free or 
   discounted phones and automobile battery chargers.14  The 
   providers extensively advertised these plans and 
   promotions, highlighting rates, terms, conditions, and 
   quality of service.15

     C.   Defendants' Service Offerings    

6.   In the Cleveland, Ohio CMRS market, Defendants provided 
   to consumers various standard rate plans, as well as 
   regular promotions, which included additional incentives 
   to purchase their service.16  Many of Defendants' rate 
   plans and promotions included bundles of airtime minutes 
   as part of monthly service or extra features at no 
   additional charge.17
       
7.   Defendants also authorized their personnel to depart 
   from standard rate plans and promotions by offering added 
   inducements to attract new customers or retain existing 
   customers.18  Defendants called these inducements ``sales 
   concessions'' (for new customers) and ``retention 
   concessions'' (for existing customers).19  Examples of 
   these concessions include a one-time monetary credit, 
   minutes of air time added to a plan's or promotion's 
   bundle of minutes, the free use of some feature (e.g., 
   voice mail or call forwarding) for a period of time, and 
   equipment or an equipment discount or rebate.20  
   Concessions resulted in the customer obtaining service at 
   a price lower than that paid by another customer who 
   received service under the same rate plan or promotion 
   but who did not receive a concession.21

8.   Defendants empowered their sales agents and customer 
   care representatives to use their discretion in 
   determining whether to offer a particular concession to a 
   particular customer.22  Thus, Defendants decided to grant 
   a concession (as well as the amount of a concession) to 
   any particular customer on an ``individualized basis.''23  
   Defendants' personnel generally did not volunteer to 
   consumers information about the potential for obtaining 
   concessions.24  Rather, a consumer generally could learn 
   about and perhaps obtain a concession only as a result of 
   negotiating (i.e., haggling) with a representative of 
   Defendants.25  Defendants did not require their personnel 
   to maintain records regarding the granting of 
   concessions.26 

9.   Defendants also provided ``Association'' and 
   ``Government'' rate plans in 1999, which were available 
   to members of qualifying associations (e.g., bar 
   associations, chambers of commerce, boards of realtors) 
   and governmental entities/employees, respectively.27  On 
   some occasions, Defendants allowed individuals who were 
   not members of qualifying associations or governmental 
   entities nonetheless to receive the Association or 
   Government rates.28

10.  On February 23, 1999, Orloff purchased cellular service 
   from Defendants under an advertised rate plan.29  Five 
   months into her two-year contract, Orloff switched to 
   another of Defendants' advertised rate plans, on which 
   she remained until she terminated service on February 6, 
   2001.30  Orloff received sales concessions at the time 
   she took service under the initial plan, and she received 
   a retention concession at the time she switched to the 
   subsequent plan.31  Nevertheless, during the  relevant 
   period, customers in the Cleveland, Ohio market who were 
   on the same rate plan as Orloff received certain sales 
   and retention concessions that Orloff did not receive.32 

     D.   The Federal District Court Litigation

11.  On February 11, 2000, Orloff and three other 
   individuals filed a putative class action lawsuit against 
   Defendants in the United States District Court for the 
   Northern District of Ohio.33  The district court 
   complaint alleges that Defendants violated section 202(a) 
   of the Act by charging different prices to similarly-
   situated customers for the same service.34  Pursuant to 
   the referral to the Commission, granted at Defendants' 
   request prior to the initiation of discovery, the 
   District Court stayed the underlying lawsuit until the 
   Commission determines whether Defendants' conduct 
   violates the Act.35

     E.   The Instant Proceeding  

12.  In the Complaint filed with the Commission, Orloff 
   alleges that Defendants' ``policy and practice of secret, 
   selective, and standardless discounts which are 
   negotiated individually with preferred customers'' 
   violates sections 201 and 202 of the Act.36  
   Specifically, the Complaint avers that Defendants acted 
   in an unreasonable and discriminatory manner, because 
   they failed to make available to Orloff (or to advise her 
   of the existence of) more favorable rate plans and 
   concessions that Defendants offered to other similarly-
   situated customers.37  The Complaint asks the Commission 
   to declare Defendants' acts unlawful.38  Assuming 
   favorable rulings from the Commission, the Complaint 
   further indicates that Orloff will pursue a claim for 
   damages in the District Court, rather than at the 
   Commission.39

13.  In their Answer, Defendants assert that Orloff has not 
   demonstrated that a ``nondominant carrier in a 
   competitive market [is] able to impose unreasonable or 
   discriminatory pricing.''40  The Answer further argues 
   that, even assuming Orloff's legal theory regarding 
   discrimination by a non-dominant carrier is correct, 
   Orloff has not demonstrated that, as a factual matter, 
   she is entitled to relief, because she has not 
   established that any particular customer was charged less 
   than she was for like service and because she received 
   concessions from Defendants.41

III. DISCUSSION

     A.   Defendants' Concessions Were a Reasonable Response 
          to Competition in the Cleveland, Ohio CMRS Market.

          1.   Defendants' Concessions Were Not Unreasonably  
               Discriminatory Under Section 202(a) of the 
               Act.

               a.   Legal Standard

14.    Section 202(a) of the Act makes it unlawful for any 
   common carrier to discriminate unjustly or unreasonably 
   among customers in its provision of ``like communication 
   service.''42 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.43  When a 
   complainant establishes the first two components, the 
   burden of persuasion shifts to the defendant carrier to 
   justify the discrimination as reasonable.44

               b.   Likeness of Service and Difference in 
                    Treatment

15.  We conclude that Orloff has satisfied the first two 
   steps of the section 202(a) inquiry.  First, the parties 
   agree that, for purposes of this proceeding, the 
   Commission may assume that the ``like'' communication 
   service at issue is single-line cellular service 
   purchased by a non-business user.45  Second, we conclude 
   that Defendants treated Orloff differently than they 
   treated other customers purchasing like service, given 
   the parties' stipulations that (1) a customer who 
   received a concession obtained service at a lower price 
   than that paid by a customer who received service under 
   the same rate plan or promotion but who did not receive 
   that concession;46 and (2) some customers in the 
   Cleveland, Ohio MSA on the same rate plan as Orloff 
   received some types of sales and retention concessions 
   that Orloff did not receive.47  Accordingly, we turn to 
   the question of whether Defendants have satisfied the 
   third step of the section 202(a) inquiry - i.e., whether 
   their different treatment of Orloff was reasonable.

               c.   Reasonableness of the Different 
                    Treatment

16.   Defendants contend that the existence of vigorous 
   competition in the Cleveland, Ohio CMRS market rendered 
   individualized concessions and haggling reasonable.48  
   Defendants characterize their concessions practices as a 
   means of enabling a non-dominant carrier to keep existing 
   customers and to obtain new customers by quickly meeting 
   the offers of competitors.49  According to Defendants, 
   they made concessions in a nondiscriminatory manner, 
   because no customers were guaranteed a concession, and 
   any concessions that Defendants gave resulted from 
   individual negotiation initiated by the customer (i.e., 
   haggling).50  Thus, Defendants maintain that the 
   determinative factor was whether a customer haggled:  
   ``[A]ll customers . . . could trigger a competitive 
   response from [Defendants], and would be equally likely 
   to be offered or not offered a concession.''51 

17.  Orloff argues that the presence of competition does not 
   justify Defendants' concessions practices,52 and that 
   competition is irrelevant when customers do not have 
   access to sufficient information regarding alternative 
   offerings.53  Moreover, Orloff asserts that Defendants 
   granted concessions for any reason or no reason at all, 
   not because they carefully analyzed economic factors 
   attendant to particular transactions.54  Thus, Orloff 
   highlights Defendants' failure to keep any records 
   allowing a comparison of different customers and the 
   reasons concessions were, or were not, given.55 

18.  Defendants have demonstrated that their disparate 
   treatment of Orloff was reasonable.  Although the 
   Commission declined to forbear from applying sections 
   201(b) and 202(a) of the Act in the CMRS context,56 it 
   has considered the existence of robust competition in the 
   CMRS market when determining whether a violation of those 
   sections has occurred.  For example, in Kiefer v. 
   PageNet, the Commission held that a fee imposed by a 
   paging carrier on past due balances for paging service 
   was not unreasonable under section 201(b) of the Act.57  
   The Commission rejected the complainant's assertion that 
   the late fee must be cost-based, noting, among other 
   things, that the Commission has regulated CMRS ``through 
   competitive market forces,'' and that the existence of a 
   competitive market in that case ``did not warrant a 
   finding that the late fee violate[d] section 201(b).''58  

19.  Orloff does not dispute that, at the time she took 
   service from Defendants, consumers in the Cleveland, Ohio 
   CMRS market had many choices.59  In particular, consumers 
   could obtain service from five facilities-based providers 
   and from several resellers.60  Carriers in that market 
   regularly designed new service offerings to attract 
   customers to their service and advertised the new 
   packages and promotions to consumers.61  Consequently, 
   consumers had ample opportunity to compare various terms 
   and conditions in order to identify the package best-
   suited to their needs.62  In short, we conclude that 
   vibrant competition characterized the Cleveland, Ohio 
   CMRS market.63 

20.  Given the indisputable competition in the Cleveland 
   CMRS market, we decline to find that Defendants' 
   concessions practices violated section 202(a) of the Act, 
   even if those practices allowed some consumers to 
   negotiate better deals than other consumers.  This is 
   because we find that market forces protect Cleveland 
   consumers from discrimination from these particular 
   practices.  We find that there is no evidence that any 
   market failure prevented customers from switching 
   carriers if they were dissatisfied.  Accordingly, we find 
   it unlikely that a carrier would have an incentive to 
   engage in unreasonable discrimination where such conduct 
   would result in a loss of customers.64  

21.  We are aware of case law holding that a carrier ``will 
   not be a common carrier where its practice is to make 
   individualized decisions, in particular cases, on whether 
   and what terms to deal.''65  This statement, however, 
   articulates the ``quasi-public character implicit in the 
   common carrier concept'' - i.e., that the carrier 
   ``undertakes to carry for all people indifferently.''66  
   Orloff does not allege that Defendants refused to deal 
   with any segment of the public whose business is of the 
   ``type normally accepted.''67  For example, Orloff does 
   not contend that Defendants declined to serve any 
   particular demographic group (e.g., customers who are of 
   a certain race or income bracket).  Indeed, Defendants' 
   assertion that they are willing to engage in negotiations 
   initiated by any customer is uncontroverted.68

22.  In reaching our conclusion that a policy permitting all 
   customers to haggle comports with section 202(a)'s 
   reasonableness requirement, however, we emphasize two 
   points.  First, we are not forbearing from applying 
   section 202(a) in this case.  Section 202 continues to 
   act as a powerful protection for CMRS consumers, even if 
   it was not violated in this case.  If a CMRS market were 
   inadequately competitive, or if some other market failure 
   limited consumers' abilities to use market forces to 
   protect themselves, Section 202 could be implicated.69  
   If, for example, a carrier unreasonably discriminated 
   against rural consumers, who lacked adequate choice of 
   providers, in favor of urban consumers, we could find a 
   section 202 violation.  It is also important to note that 
   competition alone does not insulate a CMRS provider from 
   section 202 liability.  Even with adequate competition we 
   will not hesitate to find that unreasonable 
   discrimination violates section 202.  Second, in a 
   related vein, our holding of what is reasonable in this 
   market does not necessarily translate to other markets 
   marked by less competition.

23.    We reject Orloff's contention that, in order to pass 
   muster under section 202(a), a haggling policy must 
   result in all customers who haggle being treated exactly 
   the same.70  By its very nature, a policy permitting 
   customer negotiation will have outcomes depending, in 
   part, on the ability of customers to identify the 
   elements of service they desire and to bargain 
   effectively for those elements.  Although such a policy 
   may not result in identical deals for all consumers 
   purchasing cellular service, we are confident that 
   consumers, given the opportunity to purchase service from 
   five facilities-based CMRS carriers and numerous CMRS 
   resellers,71 and given no evidence of other market 
   failure, will ``shop around,'' if they believe a 
   particular carrier does not meet their needs.  Moreover, 
   although we agree with Orloff that the information 
   available to customers about deals other customers 
   received is not perfect,72 she has not demonstrated that 
   she was unaware of her ability to haggle or that 
   Defendants somehow misled her in that regard.  Indeed, it 
   is undisputed that, during the relevant time period, CMRS 
   providers in the Cleveland, Ohio, CMRS market actively 
   advertised their plans and promotions in an effort to 
   attract customers,73 and that Orloff was aware that she 
   had options beyond obtaining service from Defendants.74  
   In fact, Orloff availed herself of the benefits of 
   haggling, receiving numerous concessions from Defendants 
   on two occasions.75  We have not found in this case that 
   information asymmetries rendered market forces in 
   Cleveland unable to protect CMRS consumers.

24.  We further disagree with Orloff's assertion that 
   differences in treatment of consumers purchasing like 
   service must be cost-justified on a transaction-by-
   transaction basis.76  As noted above, the Commission has 
   regulated CMRS though competitive market forces, 
   declining to impose specific cost-based regulations on 
   CMRS providers.77 In any event, we find credible 
   Defendants' assertion that their concessions practices 
   stemmed generally from a rough profitability analysis, 
   i.e., to respond immediately to changes in the 
   marketplace and to individual customer demand when 
   existing plans and promotions were inadequate.78  
   Furthermore, we believe that, as a practical matter, it 
   would be extraordinarily burdensome to require CMRS 
   carriers to do what Orloff asks (i.e., to track and offer 
   to every customer concessions attained through 
   negotiation).  In the absence of evidence of market 
   failure in the Cleveland, Ohio CMRS market, we decline to 
   impose such a burden.79

          2.   Defendants' Concessions Practices Were Not 
               Unreasonable Under Section 201(b) of the Act.

25.  Section 201(b) of the Act requires a common carrier's 
   charges and practices in connection with communication 
   service to be ``just and reasonable.''80  Orloff contends 
   that Defendants' concessions practices constitute an 
   unjust and unreasonable practice.81  Defendants deny 
   Orloff's allegations, offering the same defenses to the 
   section 201(b) claim as they do to the section 202(a) 
   claim.82

26.  We reject Orloff's section 201(b) claim.  As noted, 
   section 201(b) declares unlawful only ``unjust or 
   unreasonable'' common carrier practices.  For the reasons 
   discussed above, we find Defendants' concessions 
   practices to be reasonable.83  

     B.   Defendants' Occasional Departure from 
          Association/Government Rate Plan Criteria is 
          Tantamount to a Concession and, Therefore, is 
          Reasonable.

27.   Orloff argues that Defendants' occasional practice of 
   allowing a person to obtain association/governmental 
   entity rates, even though not a qualifying member, 
   violates sections 201(b) and 202(a).84  We disagree.  
   First, the record contains no evidence that this conduct 
   occurred in the Cleveland, Ohio MSA (as opposed to the 
   Columbus, Ohio MSA).  In any event, even if Orloff could 
   show that Defendants engaged in this conduct in 
   Cleveland, we would not find a violation of section 
   202(a) or 201(b).  As Defendants observe,85 allowing a 
   non-member to obtain an association/governmental entity 
   rate is merely another way of granting a concession, 
   which we have already concluded was a reasonable practice 
   in the competitive Cleveland, Ohio CMRS market. 

IV.     ORDERING CLAUSES

28.  Accordingly, IT IS ORDERED, pursuant to sections 4(i), 
   4(j), 201(b), 202(a), and 208 of the Communications Act 
   of 1934, as amended, 47 U.S.C.  154(i), 154(j), 201(b), 
   202(a), and 208, that the Complaint filed by Jacqueline 
   Orloff against Vodafone Airtouch Licenses LLC, d/b/a 
   Verizon Wireless, and New Par IS DENIED and that this 
   proceeding IS TERMINATED as of the Release Date of this 
   Order.       

                         FEDERAL COMMUNICATIONS COMMISSION



                         Marlene H. Dortch
                         Secretary
_________________________

1    Vodafone AirTouch Licenses LLC has been renamed Verizon 
Wireless (VAW) LLC.  Revised Joint Statement, File No. EB-
01-MD-009 (filed July 3, 2001) (``Revised Joint Statement'') 
at 3,  8.  See Respondent's Answer, File No. EB-01-MD-009 
(filed May 3, 2001) (``Answer'') at 1 n.1.  New Par formerly 
operated under the trade name ``Airtouch Cellular,'' and now 
transacts business under the trade name ``Verizon 
Wireless.''  Answer at 1 n.1.  See Revised Joint Statement 
at 2,  2.   Although much of the conduct at issue in this 
proceeding occurred before the above changes, this Order 
refers to the parties individually as ``Verizon Wireless 
(VAW) LLC'' and ``New Par,'' respectively, and refers to 
these entities collectively as ``Defendants.''

2    47 U.S.C.  208.  The United States District Court for 
the Northern District of Ohio granted Defendants' request 
for a primary jurisdiction referral on May 30, 2000.  See 
Jacqueline Orloff, et al. v. Vodafone AirTouch Licenses LLC, 
et al., Case No. 1: 00 CV 421, slip op. (N.D. Ohio May 30, 
2000) (``District Court Order''), attached as Exhibit A to 
Answer.  Almost eight months later, on January 24, 2001, 
Orloff filed a formal complaint with the Commission 
implementing the primary jurisdiction referral.  However, 
because that complaint failed in numerous and significant 
respects to comply with the Commission's rules governing 
formal complaints, see 47 C.F.R.  1.720-1.736, Commission 
staff dismissed the complaint without prejudice on February 
1, 2001.  See Letter from Alexander P. Starr, Market 
Disputes Resolution Division, Enforcement Bureau, to Randy 
J. Hart and Mark Griffin, counsel for Orloff (dated Feb. 1, 
2001).  Over two months later, Orloff filed a new complaint, 
which is the subject of this Order.  See Complaint for 
Declaratory Judgment Arising out of Class Action Complaint 
for Damages, File No. EB-01-MD-009 (filed Apr. 12, 2001) 
(``Complaint'').

3    See 47 U.S.C.  201(b), 202(a).

4    Revised Joint Statement at 3,  11-12; Complaint at 2, 
 6; Answer, Tab 1 (Respondent's Legal Analysis) at 2.

5    Revised Joint Statement at 2,  2; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 5,  9.

6    Revised Joint Statement at 2,  4, 6; at 3,  8; 
Answer, Tab 2 (Respondent's Answer to Specific Allegations) 
at 6,  10.  Defendants argue that, because Verizon Wireless 
(VAW) LLC is not a licensed CMRS provider or a common 
carrier, it is not properly a party defendant.  Supplemental 
Answer, File No. EB-01-MD-009 (filed May 29, 2001) 
(``Supplemental Answer'') at 2; Answer, Tab 1 (Respondent's 
Legal Analysis) at 1 n.1; Tab 2 (Respondent's Answer to 
Specific Allegations) at 95,  284.  In light of our 
conclusion that the Complaint should be denied on the 
merits, we need not reach this issue.  Cf. 47 U.S.C.  
411(a) (providing that interested non-carriers may be 
included as parties along with carrier defendants).

7    See Letter from Tejal Mehta, Market Disputes Resolution 
Division, Enforcement Bureau, to Randy J. Hart and Mark 
Griffin, counsel for Orloff, and Kathleen M. Trafford and 
Kenneth D. Patrich, counsel for Defendants, File No. EB-01-
MD-009 (dated May 29, 2001) at 3 (``May 29, 2001 Staff 
Letter''); Letter from Tejal Mehta, Market Disputes 
Resolution Division, Enforcement Bureau, to Randy J. Hart 
and Mark Griffin, counsel for Orloff, and Kenneth D. 
Patrich, L. Charles Keller, J. Wade Lindsey, Kathleen M. 
Trafford, and Daniel W. Costello, counsel for Defendants, 
File No. EB-01-MD-009 (dated June 8, 2001) at 1 (``June 8, 
2001 Staff Letter''); Letter from Tejal Mehta, Market 
Disputes Resolution Division, Enforcement Bureau, to Randy 
J. Hart and Mark Griffin, counsel for Orloff, and Kathleen 
M. Trafford and Kenneth D. Patrich, counsel for Defendants, 
File No. EB-01-MD-009 (dated July 16, 2001) at 2 (``July 16, 
2001 Staff Letter'').

8    The Commission uses MSAs, which the Office of 
Management and Budget defines based on population 
statistics, to allocate cellular radio licenses.

9    Revised Joint Statement at 2,  2; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 5,  9.  
See also May 29, 2001 Staff Letter at 3; June 8, 2001 Staff 
Letter at 1; July 16, 2001 Staff Letter at 2.

10   Revised Joint Statement at 4,  18; Answer, Tab 1 
(Respondent's Legal Analysis) at 3.  Cellular service, PCS, 
and SMR service utilize different spectrum frequency to 
provide mobile telephony.  The Commission regulates all 
three services as CMRS.  See 47 C.F.R.  20.9. 

11   Revised Joint Statement at 4,  19; Answer, Tab 1 
(Respondent's Legal Analysis) at 3.

12   Revised Joint Statement at 4,  20; Answer, Exhibit J 
(Wireless Telephone Advertisements from the Cleveland Plain 
Dealer); Exhibit L (Affidavit of Corinne Milligan) 
(``Milligan Affidavit''), Exhibits 1-65.

13   Revised Joint Statement at 4,  20; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 67,  156; 
Exhibit J (Wireless Telephone Advertisements from the 
Cleveland Plain Dealer); Exhibit L (Milligan Affidavit), 
Exhibits 1-65.

14   Revised Joint Statement at 4,  20; Answer, Tab 1 
(Respondent's Legal Analysis) at 21-22; Tab 2 (Respondent's 
Answer to Specific Allegations) at 51 and 67,  111, 158; 
Exhibit J (Wireless Telephone Advertisements from the 
Cleveland Plain Dealer); Exhibit L (Milligan Affidavit), 
Exhibits 1-65.

15   Revised Joint Statement at 5,   24, 26; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 57 and 65, 
 133, 151; Exhibit J (Wireless Telephone Advertisements 
from the Cleveland Plain Dealer); Exhibit L (Milligan 
Affidavit), Exhibits 1-65.

16   Revised Joint Statement at 5,  25; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 47 and 60, 
 107, 142.

17   Revised Joint Statement at 5,  25; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 47 and 60, 
 107, 142.

18   Revised Joint Statement at 5-6,  28; Answer, Tab 1 
(Respondent's Legal Analysis) at 4; Tab 2 (Respondent's 
Answer to Specific Allegations) at 70,  165.

19   Revised Joint Statement at 5-6,  28-29; Answer, Tab 1 
(Respondent's Legal Analysis) at 3.

20   Revised Joint Statement at 6,  28; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 60,  142.

21   Revised Joint Statement at 6,  28; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 51,  116.

22   Revised Joint Statement at 6,  30; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 46,  104.

23   Revised Joint Statement at 7,  34; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 52,  119.   

24   Revised Joint Statement at 7,  34; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 47 and 52, 
 106, 118.

25   Revised Joint Statement at 7,  35; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 47 and 52, 
 106, 118.

26   Complainant's Initial Brief in Support of Declaratory 
Judgment that Defendants Have Violated 47 U.S.C.  201 and 
202 (filed Aug. 17, 2001) (``Orloff's Initial Brief'') at 
22, 29-31; Complainant's Reply Brief in Support of 
Declaratory Judgment that Defendants Have Violated 47 U.S.C. 
 201 and 202 (filed Sept. 17, 2001) (``Orloff's Reply 
Brief'') at 2-3.

27   Revised Joint Statement at 5,  22; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 57 and 77, 
 135, 179. 

28   Revised Joint Statement at 5,  22; Answer, Tab 1 
(Respondent's Legal Analysis) at 18; Initial Brief of New 
Par and Vodafone Airtouch Licenses LLC, d/b/a Verizon 
Wireless, File No. EB-01-MD-009 (filed Sept. 7, 2001) 
(``Respondent's Initial Brief'') at 31.  See Respondents' 
Answers to Complainant's July 9, 2001 Discovery Requests 
Propounded to Respondent New Par, File No. EB-01-MD-009 
(filed July 27, 2001) (``Respondents' Answers to July 9, 
2001 Discovery Requests''), Response to Request for 
Production of Documents No. 3 at NPV 170-173 (Ohio 
Association Program Packet); Response to Interrogatory No. 
6.

29   Revised Joint Statement at 3,  10-11, 15; Complaint, 
Exhibit B (Orloff Service Agreement); Answer, Tab 1 
(Respondent's Legal Analysis) at 2.  

30   Revised Joint Statement at 4,  16, 17; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 3-4,  6.

31   Revised Joint Statement at 3,  15-16; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 3-4 and 44, 
 6, 95.  The sales concessions consisted of a reduced rate 
on a new cellular telephone, waiver of the standard 
activation charge, one-half credit on the amount of the 
monthly access fee for a period of six months, and free 
weekend calling for three months.  Revised Joint Statement 
at 3,  15; Answer, Tab 2 (Respondent's Answer to Specific 
Allegations) at 3-4 and 44,  6, 95.  The retention 
concession consisted of a billing credit.  Revised Joint 
Statement at 4,  16; Answer, Tab 2 (Respondent's Answer to 
Specific Allegations) at 3-4 and 44,  6, 95.

32   Revised Joint Statement at 7,  40.

33   The putative class consists of at least 50,000 Ohio 
residents who purchased cellular service from Defendants two 
years prior to the filing of the federal district court 
complaint and who did not receive concessions.  Complaint, 
Exhibit A (Jacqueline Orloff, et al. v. Vodafone AirTouch 
Licenses LLC, et al., Case No. 1: 00 CV 421, Class Action 
Complaint (N.D. Ohio Feb. 11, 2000)).  We note that the 
Commission cannot adjudicate complaints under section 208 on 
a class action basis.  See Halprin, Temple, Goodman & Sugrue 
v. MCI Telecommunications Corp., Memorandum Opinion and 
Order, 13 FCC Rcd 22568, 22581, 29 (1998) (``class action 
lawsuits are neither contemplated by, nor consistent with, 
the private remedies created under sections 206 through 209 
of the Act'').

34   See District Court Order at 1.

35   District Court Order at 10.  The District Court did not 
identify specific issues that it would like the Commission 
to resolve.  See id.  

36   Complaint at v.

37   Complaint at 42-50,  225-280.  See Orloff's Initial 
Brief at 17-34; Orloff's Reply Brief at 3-14.  

38   See Complaint at 42-49,  225-272.

39   See Complaint at 49-50,  276, 280.

40   Answer, Tab 1 (Respondent's Legal Analysis) at 5.  See 
also Answer, Tab 1 (Respondent's Legal Analysis) at 6-13.

41   Answer, Tab 1 (Respondent's Legal Analysis) at 5.  See 
also Answer, Tab 1 (Respondent's Legal Analysis) at 14-22.

42   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 . . . .'').  Persons engaged 
in the provision of CMRS are treated as common carriers 
under the Act.  See 47 U.S.C.  332(c)(1)(A).

43   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); Cellexis 
International, Inc. v. Bell Atlantic NYNEX Mobile Systems, 
Inc., et al., Memorandum Opinion and Order, FCC 01-368,  10 
(rel. Dec. 19, 2001); Beehive Telephone, Inc. v. Bell 
Operating Companies, Memorandum Opinion and Order, 10 FCC 
Rcd 10562, 10567,  27 (1995); Competition in the Interstate 
Interexchange Marketplace, Report and Order, 6 FCC Rcd 5880, 
5903,  132 (1991).  

44   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).  

45   See Orloff's Initial Brief at 18; Defendants' Initial 
Brief at 20.  Defendants argue that, ``while all wireless 
service involves the sale of airtime, such airtime comes in 
a wide variety of packages, with airtime bundled in 
different ways and coupled with many different types of 
features and services.''  Defendants' Initial Brief at 20.  
Nevertheless, Defendants state that they are willing to have 
the Commission assume in this proceeding that the CMRS 
service provided to Orloff was ``like'' the CMRS service 
provided to all other non-business customers.  Id.   

46   Revised Joint Statement at 6,  28; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 44,  95.

47   Revised Joint Statement at 7,  40.  Contrary to 
Defendants' assertion (see Answer, Tab 1 (Respondent's Legal 
Analysis) at 17; Defendants' Initial Brief at 21), the fact 
that Orloff received some sales and retention concessions is 
not dispositive of the issue of disparate treatment, because 
Orloff did not receive other concessions that were provided 
to customers obtaining like service.

48   Answer, Tab 1 (Respondent's Legal Analysis) at 6-13, 
22; Defendants' Initial Brief at 8-10; Defendants' Reply 
Brief at 3.

49   Answer, Tab 1 (Respondent's Legal Analysis) at 21-22; 
Defendants' Initial Brief at 2. 

50   Defendants' Initial Brief at 22; Defendants' Reply 
Brief at 5.

51   Defendants' Reply Brief at 5.  See also Defendants' 
Initial Brief at 22.  

52   Complaint at 27-29,  146-153; Orloff's Initial Brief 
at 24-29; Orloff's Reply Brief at 3.

53   Complaint at 14-15,  60-65; Orloff's Initial Brief at 
32; Orloff's Reply Brief at 7, 11, and 13.

54   Complaint at 43,  239; at 45,  249; at 49,  272; 
Orloff's Initial Brief at 22; Orloff's Reply Brief at 7-8.

55   Complaint at 24,  122; Orloff's Initial Brief at 22, 
29-31; Orloff's Reply Brief at 2-3.

56   See Personal Communications Industry Association's 
Petition for Forbearance for Broadband Personal 
Communications Services, Memorandum Opinion and Order and 
Notice of Proposed Rulemaking, 13 FCC Rcd 16857 (1998).

57   Kiefer v. Paging Network, Inc., d/b/a PageNet, 
Memorandum Opinion and Order, 16 FCC Rcd 19129 (2001) 
(``Kiefer v. PageNet'').

58   Kiefer v. PageNet, 16 FCC Rcd at 19131,  5; at 19132, 
 7.

59   See Orloff's Initial Brief at 24; Orloff's Reply Brief 
at 3.

60   Revised Joint Statement at 4,  18, 19; Answer, Tab 1 
(Respondent's Legal Analysis) at 3.

61   Revised Joint Statement at 4-5,  20, 24, 26.  We have 
observed in the CMRS context that the continued rollout of 
differentiated pricing plans indicates a competitive 
marketplace.  Implementation of Section 6002(b) of the 
Omnibus Budget Reconciliation Act of 1993, Annual Report and 
Analysis of Competitive Market Conditions with Respect to 
Commercial Mobile Services, Sixth Report, 16 FCC Rcd 13350, 
13377 (2001) (``Sixth Annual CMRS Competition Report'').

62   Revised Joint Statement at 5,   24, 26; Answer, Tab 2 
(Respondent's Answer to Specific Allegations) at 57 and 65, 
 133, 151; Exhibit J (Wireless Telephone Advertisements 
from the Cleveland Plain Dealer).

63   We note that statistics at a national level regarding 
cellular service indicate continued downward pricing trends, 
steady customer churn rates, and continued expansion of 
mobile networks into new and existing markets.  These 
factors suggest a high level of competition for mobile 
telephony users generally.  See Sixth Annual CMRS 
Competition Report, 16 FCC Rcd at 13370, 13376-8.  

64   See Answer, Tab 1 (Respondent's Legal Analysis) at 22; 
Defendants' Initial Brief at 13.  See also Implementation of 
Sections 3(n) and 332 of the Communications Act, Regulatory 
Treatment of Mobile Services, Second Report and Order, 9 FCC 
Rcd 1411, 1478,  173 (1994) (noting that non-dominant 
carriers are unlikely to behave anti-competitively because 
they recognize that such behavior would result in the loss 
of customers); Policy and Rules Concerning Rates for 
Competitive Carrier Services and Facilities Authorizations 
Therefor, First Report and Order, 85 FCC 2d 1, 31,  88 
(1980) (firms lacking market power cannot rationally price 
their services in contravention of Sections 201(b) and 
202(a) of the Act because they would lose market share). 

65   National Ass'n of Regulatory Util. Comm'rs v. FCC, 525 
F.2d 630, 641 (D.C. Cir.), cert. denied, 425 U.S. 992 (1976) 
(``NARUC I'').  See also Southwestern Bell Tel. Co. v. FCC, 
19 F.3d 1475, 1481 (D.C. Cir. 1994) (``[i]f the carrier 
chooses its clients on an individualized basis and 
determines in each particular case `whether and on what 
terms to serve' and there is no specific regulatory 
compulsion to serve all indifferently, the entity is a 
private carrier for that particular service''); National 
Ass'n of Regulatory Util. Comm'rs v. FCC, 533 F.2d 601, 608-
09 (D.C. Cir. 1976) (quoting NARUC I); Complaint at 7,  24 
(citing NARUC I, 525 F.2d at 641); Orloff's Initial Brief at 
16 (same); Orloff's Reply Brief at 5 (same).  

66   NARUC I, 525 F.2d at 641 (citations omitted).

67   NARUC I, 525 F.2d at 641 (citations omitted).

68   See note 51, supra.

69   With respect to CMRS, the Commission generally has 
relied on market forces, rather than regulation, except when 
there is market failure.  See Implementation of Sections 
3(N) and 332 of the Communications Act Regulatory Treatment 
of Mobile Services, Second Report and Order, 9 FCC Rcd 1411, 
1478,  173 (``in a competitive market, market forces are 
generally sufficient to ensure the lawfulness of . . . terms 
and conditions of service set by carriers who lack market 
power''); at 1478-79,  175 (forbearing from tariff 
requirements for CMRS carriers and noting that section 202 
``will provide an important protection in the event there is 
a market failure'') (emphasis added).

70   Orloff's Reply Brief at 9-10. 

71   See Revised Joint Statement at 4,  18, 19.

72   See Orloff's Initial Brief at 32; Orloff's  Reply Brief 
at 7, 11.

73   Revised Joint Statement at 5,  24, 26.

74   Revised Joint Statement at 3,  14.

75   Revised Joint Statement at 3-4,  15-16.

76   Orloff's Initial Brief at 33-34; Orloff's Reply Brief 
at 14.

77   See Kiefer v. PageNet, 16 FCC Rcd at 19131,  5.  

78   See Answer, Exhibit C (Affidavit of Seamus Hyland) 
(``Hyland Affidavit''), at  35-38; Exhibit L (Milligan 
Affidavit), Exhibits 1-65; Respondents' Answers to July 9, 
2001 Discovery Requests, Response to Request for Production 
of Documents No. 2 at NPV 102-103; Defendants' Initial Brief 
at 18; Defendants' Reply Brief at 4.

79   Again, we emphasize that our ruling is confined to the 
facts of this case, which involve a highly-competitive CMRS 
market occupied by a number of non-dominant carriers.  
Consequently, the cases cited by Orloff (see Orloff's 
Initial Brief at 27-28; Orloff's Reply Brief at 11) are 
distinguishable, because they all involved carriers with 
significant market power.  See MCI Telecommunications Corp. 
v. FCC, 917 F.2d 30, 41 (D.C. Cir. 1990); Southwestern Bell 
Telephone Co., Memorandum Opinion and Order on 
Reconsideration, 13 FCC Rcd 6964, 6967,  8 (1998); AT&T 
Communications Tariff F.C.C. Nos. 1, 2, 9, Memorandum 
Opinion and Order, 6 FCC Rcd 5675, 5675,  6 (1991). 

80   47 U.S.C.  201(b).

81   Complaint at 49,  275; Orloff's Initial Brief at 23; 
Orloff's Reply Brief at 3.

82   See Answer, Tab 2 (Respondent's Answer to Specific 
Allegations) at 2,  2; Defendants' Initial Brief at 24, 31.

83   Orloff asserts for the first time in her opening brief 
that Defendants' public position that they do not grant 
concessions is an intentional misrepresentation in violation 
of section 201(b).  Orloff's Initial Brief at 32.  We 
decline to address this misrepresentation claim, because 
Orloff did not raise it in her complaint.  Thus, we find 
that the record provides an inadequate basis on which to 
properly assess the merits of the argument.  See, e.g., AT&T 
Corp. v. Jefferson Telephone Co., Memorandum Opinion and 
Order, 16 FCC Rcd 16130, 16133 n.18 (2001) (declining to 
address an issue raised for the first time in the brief).  

84   See Complaint at 46-48,  258, 259, 263, and 267; 
Orloff's Initial Brief at 21.  Orloff also argues that it is 
discriminatory for Defendants to bill customers 
participating in Association/Government rate plans directly 
for services, rather than billing the affiliated entity.  
Complaint at 46-47,  254-259.  Because Orloff offers no 
legal support for this contention, we dismiss this aspect of 
her claim.

85   Answer, Tab 1 (Respondent's Legal Analysis) at 18; 
Defendants' Initial Brief at 32.