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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
San Diego Telephone Company, )
Inc.; San Diego Telecom, Inc.; ) File No. EB-01-TC-F-005
Charles D. Hughen; and Ed Poe, )
MCI WorldCom; WorldCom Network )
Services, Inc.; WorldCom )
Technologies, Inc.; and TTI )
National, Inc., )
MEMORANDUM OPINION AND ORDER
Adopted: June 13, 2002 Released: June 24, 2002
By the Commission:
1. In this Memorandum Opinion and Order, we deny a formal
complaint filed by San Diego Telephone Company, Inc. (SDT), San
Diego Telecom, Inc. (SDT Telco), Charles D. Hughen (Hughen), and
Ed Poe (Poe) (collectively Complainants) against MCI WorldCom,
WorldCom Network Services, Inc., WorldCom Technologies, Inc., and
TTI National, Inc. (collectively MCI WorldCom) under section 208
of the Communications Act of 1934, as amended (the Act). 1 This
complaint was referred to the Commission by the Superior Court of
the State of California under the doctrine of primary
jurisdiction. The Complainants allege that MCI WorldCom switched
the presubscribed long distance service providers of complainants
Poe and Hughen from SDT to WilTel, an MCI WorldCom affiliate,
without their authorization and without verification in violation
of section 258 of the Act and the Commission's rules. 2
2. We find that the Complainants have failed to meet their
burden of proof. The Complainants have failed to produce
evidence sufficient to support their allegations. Consequently,
we conclude that the evidence before us does not demonstrate that
complainants Poe and Hughen were slammed. Many of the issues
raised by the Complainants in their brief are irrelevant to our
analysis. Therefore, we will address only those issues we deem
essential to a determination of whether the complainants were
3. SDT and SDT Telco were California corporations doing
business as switchless resellers of long distance telephone
services provided by Brooks Fiber Properties, a facilities-based
interexchange carrier (IXC).3 Complainants Charles Hughen and
Ed Poe were residential telephone subscribers of SDT long
distance services.4 Defendant MCI WorldCom is a facilities-based
provider of interexchange services and successor in interest to
Brooks Fiber Properties.5
4. On February 22, 1999, the Complainants filed suit
against MCI WorldCom in the Superior Court of the State of
California for the County of San Diego, Central Division,
alleging, among other things, that MCI WorldCom, through WilTel,
one of its subsidiaries, converted the interexchange service of
Poe and Hughen in violation of section 258 of the
Telecommunications Act of 1996.6 On April 30, 1999, the Superior
Court of California issued an order staying the underlying civil
litigation and referring to the Commission the issue of whether
MCI WorldCom slammed complainants Poe and Hughen.7 In its order,
the Court found that ``plaintiff's claims are all based upon
alleged `slamming''' and the ``FCC possesses the experience and
expertise to resolve factual issues in this case.''8
5. To implement the court's referral, complainants first
filed an informal complaint with the Commission on July 20,
1999.9 The Complainants then filed a formal complaint with the
Commission on November 28, 2000. The complaint was dismissed
because of several procedural deficiencies.10 The Complainants
then filed an Amended Formal Complaint on March 14, 2001.11 The
Complainants allege that MCI WorldCom slammed complainants Poe
and Hughen in violation of section 258 of the Act when it
acquired Brooks Fiber Properties.12 According to the
Complainants, when MCI WorldCom purchased Brooks, it submitted
preferred carrier (PC) change orders to the local exchange
carrier (LEC) using Brooks' facilities.13 The Complainants seek
a determination that MCI WorldCom violated section 258 because
the orders were submitted without the requisite subscriber
authorization or verification.14 MCI WorldCom responds that Poe
and Hughen each contacted the LEC to initiate the PC changes.15
II.A. The Complainants Have Failed to Meet their Burden
6. The Commission's formal complaint rules place the
burden of pleading and documenting a violation of the Act on the
complainant; they do not require the defendant to prove that it
has not violated the Act.16 As the Commission explained when it
promulgated the rules governing formal complaint proceedings,
``[f]ormal complaint proceedings, unlike court litigation or
administrative trial-type hearings, are often resolved solely on
the written pleadings. These pleadings must, therefore, stand on
their own and provide the factual underpinnings for a decision on
the merits.''17 Consequently, a formal complaint must contain
copies of all affidavits, documents, data compilations, and
tangible things in the complainant's possession, custody, or
control, upon which the complainant relies or intends to rely to
support the facts alleged and legal arguments made in the
complaint.18 In addition, a complainant may file with the
Commission and serve on a defendant, concurrently with its
complaint, a request for up to ten written interrogatories.19
7. As noted above, the Complainants base their claim on
section 258 of the Act and our related rules. Section 258 states
that ``[n]o telecommunications carrier shall submit or execute a
change in a subscriber's selection of a provider of telephone
exchange service or telephone toll service except in accordance
with such verification procedures as the Commission shall
prescribe.''20 The goal of section 258 is to eliminate the
practice of ``slamming,'' which is the unauthorized change of a
subscriber's preferred carrier. Our rules require that carriers
follow one of the Commission's prescribed verification procedures
before submitting carrier changes on behalf of subscribers.21
The Commission has made enforcement of these rules a high
8. Here, however, we find that the Complainants have
submitted little support to substantiate the allegations
underlying their complaint. While the Complainants did attach a
variety of documents to their amended complaint, they did not
explain how those documents supported their allegations.23
Furthermore, Complainants' brief included and discussed only the
affidavits of Poe and Hughen that asserted that they had not
authorized their long distance service to be switched from San
Diego Telephone to WilTel.24 In fact, not only did the brief
lack the other original attachments, it also lacked any
discussion of how any of the documents supported the
Complainant's allegations. The Commission's rules require that
``[a] party shall attach to its brief copies of all documents,
data compilations, tangible things, and affidavits upon which
such party relies or intends to rely to support the facts alleged
and legal arguments made in its brief and such brief shall
contain a full explanation of how each attachment is relevant to
the issues and matter in dispute.''25 Since the brief did not
include any of the requisite attachments, explanations or legal
arguments, the Commission's rules require it to assume that the
Complainants no longer intend to rely upon the documents filed
with the complaint. 26 Consequently, the unsubstantiated
affidavits constitute the entire support for the allegations
before the Commission.
9. Other evidence submitted by MCI WorldCom, however,
contradicts these affidavits. MCI WorldCom has submitted Care
Interface System (CIS) records from Pacific Bell indicating that,
on September 21, 1998, Poe was a new customer who selected his
IXC through his LEC, Pacific Bell. 27 Similarly, CIS records
submitted by MCI WorldCom indicate that, on September 8, 1998,
Hughen moved and contacted the LEC directly to order new service
and to make a PC selection. In addition to the CIS records, MCI
WorldCom submitted two letters, dated November 23, 1999, that MCI
WorldCom had filed in response to the Complainants informal
complaints. 28 Like the CIS records, those letters indicate that
the Complainants' LEC, Pacific Bell, submitted orders to WilTel
on behalf of Poe and Hughen.29 More significantly, MCI WorldCom
submitted Pacific Bell's responses to Poe and Hughen's informal
complaints.30 Each response includes a LEC report and a letter
from Pacific Bell to the initial counsel for the Complainants
indicating that Poe and Hughen's accounts were established
through Pacific Bell with WilTel as the long distance carrier.31
10. In weighing the contradictory evidence submitted by the
parties, we are not persuaded that the Complainants have
satisfied their burden of proving that they were slammed. On one
side, we consider the affidavits of Poe and Hughen, both
interested parties. On the other, we consider not only MCI
WorldCom's letters asserting that they received orders from
Pacific Bell, but also the contemporaneous business records of
Pacific Bell, which is not a party to this case, also indicating
that Complainants ordered WilTel's service through Pacific Bell.
In order to find for Complainants, who have the burden of proof,
we would have to find their evidence more persuasive than the
Defendant's evidence. Particularly in light of Complainants'
misstatements of fact in this case,32 however, we accord more
weight to MCI WorldCom's letters and to Pacific Bell's
contemporaneous business records than to Poe and Hughen's self-
11. The weight of the evidence indicates that both
conversions were the result of a ``LEC-initiated install'' at the
request of the complainants.34 If, in fact, Poe and Hughen
selected WilTel by directly contacting the LEC, then no
verification would be necessary.35 Thus, we are not persuaded
that Poe and Hughen were slammed, and their complaint must be
II.B. Application for Review.
12. On July 9, 2001, the Complainants filed an Application
for Review of a discovery ruling made by Commission counsel.36
Any person aggrieved by any action taken pursuant to delegated
authority may file an Application for Review requesting review of
that action by the Commission.37 Furthermore, the Commission may
deny an application without specifying any reasons for its
action.38 The Commission will not, however, entertain an
Application for Review of an interlocutory staff ruling until
there is a final ruling on the merits of the complaint.39
13. We now deny the Complainants' Application for Review.
Under our rules, a complainant may file with the Commission and
serve on the defendant up to ten interrogatories concurrently
with its complaint.40 Although the initial counsel for the
Complainants elected not to file and serve such interrogatories,
the staff exercised its discretion to allow the current counsel
for the Complainants to file a Motion for Late-Filed Discovery by
May 7, 2001.41 Since the Complainants failed to meet the
deadline by three weeks, we find that the staff's denial of the
subsequently filed Motion for Late-Filed Discovery was
III. ORDERING CLAUSES
14. Accordingly, for the reasons stated above, IT IS
ORDERED, pursuant to sections 1, 4(i), 4(j), 207, and 208 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i),
154(j), 207, 208, and the authority delegated or otherwise
established in sections 0.111 and 0.311 of the Commission's
rules, 47 C.F.R. §§ 0.111, 0.311, that the formal complaint filed
by San Diego Telephone Company, Inc., San Diego Telecom, Inc.,
Charles D. Hughen, and Ed Poe IS DENIED.
15. IT IS FURTHER ORDERED that the Application for Review
and Motion for Stay filed by the Complainants on July 9, 2001 ARE
16. IT IS FURTHER ORDERED that all other outstanding
motions in this case ARE DENIED AS MOOT.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
1 San Diego Telephone Company et al. v. MCI WorldCom et al., File
No. EB-01-TC-F-005 (filed March 14, 2001) (Amended Formal
2 See 47 U.S.C. § 258; 47 C.F.R. § 64.1100 (a)-(d) (1997). This
was the rule at the time of the conduct at issue here. The rule
was amended on August 3, 2000 and codified at 47 C.F.R. §
64.1120. See also Amended Formal Complaint at 1.
3 Amended Formal Complaint at 2. The companies have since gone
out of business.
4 Id. at 2-3.
5 Id. at 3.
6 We note that section 207 of the Act requires that any person
claiming to be damaged by any common carrier must file a
complaint at the Commission or file suit for the recovery of
damages, for which such common carrier may be liable under the
Act, in any district court of the United States of competent
jurisdiction. See 47 U.S.C. § 207. The Complainants chose,
however, to file their complaint in state court.
7 Joint Statement at 3.
9 Joint Statement of Stipulated Facts, Disputed Facts and Key
Legal Issues at 4 (filed May 1, 2001) (Joint Statement).
10 See Letter from William H. Davenport, Special Counsel, FCC to
Norman B. Blumenthal and Kyle R. Nordrehaug, counsel for
Complainants, Blumenthal Ostroff & Markham, dated December 7,
2000 (stating, for example, that the complaint fails to comply
with section 1.721(a)(12) which requires that each copy of the
complaint filed with the Commission contain a Formal Complaint
Intake Form and that the complaint does not include a summary or
table of contents as required by section 1.49(b)-(c)).
11 See 47 C.F.R. § 1.728(a).
12 Amended Formal Complaint at 1.
15 MCI WorldCom Answer at 17.
16 See American Message Centers v. FCC, 50 F.3d 35, 41 (D.C. Cir.
1995) (citing Amendment of Rules Governing Procedures to be
Followed Where Formal Complaints are Filed Against Common
Carriers, Report and Order, 3 FCC Rcd 1806, 1806, ¶ 8 (1988));
see also 47 C.F.R. § 1.720; Amendment of Rules Governing
Procedures to be Followed Where Formal Complaints are Filed
Against Common Carriers, Report and Order, 12 FCC Rcd 22497,
22508, ¶ 22 (1997) (stating that ``our ... objective is to
improve the utility and content of pleadings, so that the
complaint, answer, and any necessary reply may serve as the
principal basis upon which the Commission will make a decision on
the merits of the complaint'').
17 Amendment of Rules Governing Procedures to be Followed Where
Formal Complaints are Filed Against Common Carriers, Report and
Order, 3 FCC Rcd 1806, 1806, ¶ 8 (1988).
18 See 47 C.F.R. § 1.721(a)(11). We note that, in contrast to the
formal complaint rules, the informal complaint rules place a
lesser burden on the complainant with regard to what must be
contained in his or her slamming complaint. See 47 C.F.R. §
19 See id. § 1.729(a).
20 47 U.S.C. § 258.
21 Pursuant to these procedures, carriers had to (1) obtain the
subscriber's written authorization; (2) obtain confirmation from
the subscriber via a toll-free number provided exclusively for
the purpose of confirming orders electronically; (3) utilize an
independent third party to verify the subscriber's order; or (4)
send an information package with a postpaid card to deny, cancel,
or confirm a service order. See 47 C.F.R. § 64.1100 (a)-(d)
(1997). This was the rule at the time of the conduct at issue
here. The rule was amended on August 3, 2000 and codified at 47
C.F.R. § 64.1120.
22 See Implementation of the Subscriber Carrier Selection Changes
Provisions of the Telecommunications Act of 1996 and Policies and
Rules Concerning Unauthorized Changes of Consumers' Long Distance
Carriers, CC Docket No. 94-129, Second Report and Order and
Further Notice of Proposed Rule Making, 14 FCC Rcd 1508, 1511, ¶
3, reconsideration pending (Slamming Order) (stating that the
Commission recently has increased its enforcement actions to
impose severe financial penalties on slamming carriers).
23 Documents attached to the complaint include: Brooks Fiber
Reseller Agreement; Affidavits from Poe and Hughen; an LOA for
complainant Ed Poe showing his selection of SDT as his preferred
carrier; three letters from MCI WorldCom to Brooks' resellers
purportedly showing that MCI WorldCom made PC changes that were
not supposed to result in a carrier change; and two Pacific Bell
phone bills intending to show slamming charges billed to Poe and
Hughen by WilTel. See SDT Amended Formal Complaint at 19-20.
24 We note that the affidavit of complainant Poe did not contain
an original signature.
25 See 47 C.F.R. § 1.732(b).
26 Our rules state that claims and defenses previously made but
not reflected in the briefs will be deemed abandoned. See 47
C.F.R. § 1.732(b).
27 See MCI Answer Exhibits 2-3; see also MCI Brief at 17-19.
28 See Letter from M. Christine Ayala, Customer Service
Representative, MCI WorldCom to Analyst, FCC dated November 23,
1999; Answer Exhibit 4. See also Letter from M. Christine Ayala,
Customer Service Representative, MCI WorldCom to Analyst, FCC,
dated November 23, 1999; Answer Exhibit 5.
30 See Letter from V.J. Gordan, Manager, Pacific Bell to Norman
Blumenthal, counsel for Charles Hughen, dated September 20, 1999;
MCI Answer Exhibit 12. See also Letter from V.J. Gordan,
Manager, Pacific Bell to Norman Blumenthal, counsel for Ed Poe,
dated September 13, 1999; MCI Answer Exhibit 13.
32 For example, in arguing that their formal complaint was not
time-barred, the Complainants state that it came to the
Commission by order of the California state court. The
Complainants argued that two previously filed informal complaints
came to the Commission prior to the state court's referral. See
Brief of San Diego Telephone Company (SDT) at ¶ 37. The record
clearly indicates, however, that the informal complaints were
filed on July 20, 1999, after, and apparently because of, the
court's April 30, 1999 primary jurisdiction referral. In fact,
the informal complaints filed by Poe and Hughen refer to the
pending state court action. See MCI Answer Exhibit 6 at 2; see
also MCI Answer Exhibit 7 at 2 (``[t]his action has been stayed
pending the Commission's determination of slamming
complaints...''). Also, in response to the Commission staff's
May 3, 2001 inquiry regarding the scope of the complaint, the
Complainants submitted a September 14, 2001 letter inaccurately
asserting that they had explained to the Commission on ``several
occasions'' that the complaint was limited to Poe and Hughen.
See Letter from Neil Ende and Alexandre B. Bouton, counsel for
the Complainants to Kimberly Jackson, Attorney, FCC at 2, dated
September 14, 2001.
33 Courts typically consider the interest of a witness in the
case in weighing the reliability of his testimony. See, e.g.,
Hertzog, Calamari & Gleason v. Prudential Ins. Co. of America,
933 F. Supp. 254, 259 (S.D.N.Y.) 1996); Uniroyal Goodrich Tire
Co. v. Hudson, 873 F. Supp. 1037, 1041 (E.D. Mich. 1994), aff'd
97 F.3d 1452. Moreover, contemporaneous written records are
reasonably given more weight than a party's later testimony.
See, e.g. Skinner v. Secretary of Dept. of Health and Human
Services, 30 Fed. Cl. 402, 410 (1994) (In general,
contemporaneous written records are to be given more weight than
testimony adduced years later.).
34 Joint Statement at 5.
35 See Slamming Order, 14 FCC Rcd 1508, 1565, ¶ 93 (stating that
``... in situations in which a customer initiates or changes long
distance service by contacting the LEC directly, verification of
the customer's choice would not need to be verified by either the
LEC or the chosen IXC''). This order discusses the slamming
rules that were in effect at the time of the alleged unlawful
36 San Diego Telephone Company, Inc. et al. Application for
Review and Motion for Stay (filed July 9, 2001). The discovery
ruling, which denied a Request for Late-Filed Discovery, was
issued pursuant to delegated authority by Telecommunications
Consumers Division Staff Attorney, Kimberly Jackson, during a
conference call on June 6, 2001 and later memorialized by letter
dated June 8, 2001. See Letter Ruling.
37 47 U.S.C. § 155(c)(4); 47 C.F.R. § 1.115(a).
38 47 U.S.C. § 155(c)(5); 47C.F.R. § 1.115(g).
39 See Halprin, Temple, Goodman, and Sugrue v. MCI
Telecommunications Corp., 13 FCC Rcd 22568, 22583-84 (1998); see
also In the Matter of Implementation of the Telecommunications
Act of 1966, Amendment of Rules Governing Procedures to be
Followed When Formal Complaints are Filed Against Common
Carriers, CC Docket No. 96-238, Order on Reconsideration, 16 FCC
Rcd 5681, 5697, ¶ 38. (2001).
40 47 C.F.R. § 1.729(a).
41 See Letter from Kimberly Jackson, Attorney, FCC, to Lisa
Smith, Kecia Lewis, and Lisa Youngers, counsel for MCI WorldCom,
Neil Ende, counsel for the Complainants, dated May 17, 2001 at 2
(memorializing oral rulings made during the initial status