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                           Before the
                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,   )
Complainants,                    )
v.                               )
MCI WorldCom; WorldCom Network   )
Services, Inc.; WorldCom         )
Technologies, Inc.; and TTI      )
National, Inc.,                  )


   Adopted:  June 13, 2002              Released:  June 24, 2002

By the Commission:

                        I.   INTRODUCTION

     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 

                         II.  BACKGROUND

     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

                     III.        DISCUSSION

     II.A.     The Complainants Have Failed to Meet their  Burden 
          of Proof. 

     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-
serving affidavits.33  

     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.


                              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.
8 Id.
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.
13 Id.
14 Id.
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.
29 Id.
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.
31 Id.
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