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


In the Matter of                   )
                                  )
Nova Cellular West, Inc.,          )
                                   )
       Petitioner,                 )
                                  )
                 v.                )  File No. EB-00-MD-0221
                                  )
AirTouch Cellular,                 )
                                   )
       Respondent.                 )
                                  )

                   MEMORANDUM OPINON AND ORDER

   Adopted:  July 18, 2002              Released:  July 25, 2002

By the Commission:

I.   INTRODUCTION

     1.   In this Memorandum Opinion and Order, we deny a 
Petition for Declaratory Ruling filed by Nova Cellular West, Inc. 
(``Nova'').2  The Petition alleges that, by failing to provide 
electronic billing tape to Nova in connection with numerous 
cellular telephone service rate plans, AirTouch Cellular 
(``AirTouch'') unreasonably restricted Nova's ability to resell 
the service, in violation of section 20.12 of the Commission's 
rules3 and sections 201(a), 201(b), and 202(a) of the 
Communications Act of 1934, as amended (``Act'').4  The Petition 
further contends that AirTouch unreasonably discriminated against 
Nova by failing to change rate plans for Nova in the same timely 
manner that AirTouch did for other customers, in violation of 
section 202(a) of the Act.  We deny Nova's claims regarding the 
provision of electronic billing tape for resale purposes, because 
a settlement and release agreement previously executed by Nova 
and AirTouch waives these claims and limits Nova's remedy to 
seeking enforcement of the settlement agreement itself under 
California law.  We also deny Nova's claims about changing rate 
plans, because Nova failed to demonstrate that AirTouch treated 
Nova differently in this regard than any other similarly-situated 
AirTouch customer.  

II.  BACKGROUND

     II.A.     The Parties 

     2.   Nova is a corporation with its principal place of 
business in Encinitas, California.5  Under the name ``San Diego 
Wireless,'' Nova provides cellular and other commercial mobile 
radio service (``CMRS'') in the San Diego, California area as a 
reseller of the services of facilities-based CMRS providers.6  
Nova was a reseller of AirTouch services in the San Diego area 
from 1986 until May 1999.7

     3.   AirTouch is a corporation with its headquarters in San 
Francisco, California.8  AirTouch provides cellular service in 
the San Diego, California Standard Metropolitan Statistical Area 
(``SMSA'')9 as a common carrier, pursuant to a license issued by 
the Commission.10  

     4.   AirTouch offers cellular service pursuant to wholesale 
rate plans (designed for resellers) and retail rate plans 
(designed for AirTouch's own retail customers).11  Unlike its 
retail rate plans, AirTouch's wholesale rate plans generally are 
equipped to provide resellers with electronic billing tapes that 
sets forth the usage of the phones assigned to the plans.12  
According to the Petition, such tapes enable larger resellers, 
like Nova, to bill their numerous customers in a timely and 
efficient manner.13 

     II.B.     California Public Utilities Commission Proceeding

     5.   In 1996, Nova sought to purchase from AirTouch access 
and airtime pursuant to certain promotional retail rate plans 
that Nova believed offered more favorable rates than the 
wholesale rate plans then available.14  AirTouch informed Nova 
that Nova could purchase under any retail plan for resale, but 
that electronic billing tapes to facilitate Nova's billing of its 
customers were not available in connection with retail plans.15

     6.   Dissatisfied with AirTouch's response, Nova filed a 
complaint against AirTouch with the California Public Utilities 
Commission (``CPUC'') on December 13, 1996.16  The 1996 CPUC 
Complaint alleged that AirTouch unlawfully refused Nova's request 
to purchase access and airtime under AirTouch's ``Easy 21 Plan'' 
(and, later, a modified version of that plan) ``by characterizing 
it as a retail plan under which Nova would not receive a magnetic 
tape containing call records along with a summary hard copy 
bill.''17  The 1996 CPUC Complaint sought an injunction 
preventing ``AirTouch from continuing to bill and collect from 
Nova for charges under a rate plan other than the Easy 21 Plan, 
as modified, or such other favorable plan that [Nova] and 
[AirTouch] agree upon.''18

     7.   The parties resolved the litigation before the CPUC 
(``CPUC Proceeding'') by entering into a Compromise Agreement and 
General Release dated April 30, 1997 (``Settlement and 
Release''), which provides in relevant part:

         In consideration of the mutual covenants 
         contained herein and upon satisfaction of the 
         conditions set forth at Paragraph 4 below, the 
         parties agree as follows:

          1.Nova and AirTouch hereby release and 
            forever discharge each other ... separately 
            and collectively from any and all claims, 
            liens, demands, causes of action, 
            obligations, damages and liabilities, known 
            or unknown, that each party has had in the 
            past, or now has, or may have in the future 
            against each other, arising out of the 
            matters involved in the formal complaint 
            proceeding commonly known as Nova Cellular 
            West v. AirTouch Cellular, Public Utilities 
            Commission of the State of California ....
                           *    *    *
          4.   As a condition to and on the condition 
            of Nova's actions as required in Paragraph 
            5 below [Nova's agreement to dismiss the 
            suit with prejudice], AirTouch ... (b) 
            hereby agrees to make retail pricing plans 
            which are offered by AirTouch in San Diego 
            available to Nova in a wholesale billing 
            tape format whenever AirTouch's currently 
            existing billing system is capable of 
            doing so.

                                                      *    
          *    *

          14.   This [Settlement and Release] shall be 
            construed and enforced pursuant to the 
            domestic laws of the State of 
            California.19

     8.   Nova construes the Settlement and Release as an 
agreement by AirTouch that it ``would eventually be able to 
provide [Nova] with the appropriate bills in electronic 
format.''20  Nova further maintains that, despite the passage of 
years, AirTouch failed to fulfill this commitment and continued 
to profess an inability to provide electronic billing tapes in 
connection with retail rate plans.21 

     9.   Nova compared the retail rates for the plans it sought 
versus the wholesale rates for the plans it was receiving, and 
concluded that AirTouch had ``overcharged'' it by $221,000.22  
Accordingly, Nova deducted $221,000 from the amount AirTouch 
billed.23  In response, AirTouch demanded full payment, and, on 
May 11, 1999, terminated service to Nova for non-payment.24

     II.C.     United States District Court Proceeding

     10.  On May 25, 1999, Nova sued AirTouch in the United 
States District Court for the Northern District of California.25  
The District Court Complaint alleges that AirTouch unlawfully 
denied Nova access to certain rate plans that AirTouch had made 
available to other customers:  plans, promotions, and special 
offers that were not available to Nova ``because an electronic 
billing format for these offerings has not been developed for 
resellers.''26  The District Court Complaint asserts violations 
of sections 201(a), 201(b), and 202(a) of the Act, as well as the 
Resale Rule.27  

     11.  Like the 1996 CPUC Complaint, the District Court 
Complaint stems from Nova's inability to obtain from AirTouch 
electronic billing tapes for desired rate plans, and challenges 
the validity of AirTouch's assertion that it lacks the capability 
to provide such tapes.28  Specifically, the District Court 
Complaint avers that, ``[a]s early as May 1997'' (just after the 
parties entered the Settlement and Release), AirTouch offered its 
retail customers various plans, discounts, and promotions, but 
that AirTouch effectively denied Nova access to these plans, 
discounts, and promotions by failing to provide an electronic 
billing format.29  According to Nova, detailed electronic billing 
would provide: 

          the call detail necessary for NOVA to bill 
          its own customers.  AIRTOUCH'S unwillingness 
          to provide an electronic bill for any service 
          offering thus insulates any such service 
          offering from resale, thereby discriminating 
          against NOVA and similarly-situated resale 
          customers.30

     12.  AirTouch moved to dismiss the complaint in its entirety 
or, alternatively, to refer to the Commission the claims arising 
under the Communications Act.31  On October 8, 1999, the district 
court dismissed the Communications Act claims, without prejudice, 
pursuant to the doctrine of primary jurisdiction, and stayed the 
remaining state law claims.32  The court further ordered Nova to 
``submit its First, Second, Third and Fourth Causes of Action to 
the FCC.''33  

     II.D.     The Instant Proceeding  

     13.  Based on the district court's ruling, Nova submitted 
its Communications Act claims to this Commission in a Petition 
for Declaratory Ruling, alleging violations of sections 201(a), 
201(b), and 202(a) of the Act, and the Resale Rule.34  In 
particular, the Petition asserts that AirTouch violated the Act 
by:  (1) denying Nova favorable rate plans that were offered to 
other AirTouch customers; (2) denying Nova electronic billing 
made available to other customers and not offering Nova 
electronic billing that required little or no modification to 
AirTouch's existing billing system; (3) refusing to provide Nova 
manual credits, as an alternative to electronic billing; and (4) 
unreasonably discriminating against Nova in responding to 
requests for rate plan changes.35  Like the District Court 
Complaint, the Petition challenges as invalid AirTouch's 
justification for not offering Nova favorable rate plans that 
were available to AirTouch's other customers - i.e., that 
AirTouch's ``electronic billing system is incapable of providing 
a billing format that would allow a customer to resell the 
service.''36

III.      DISCUSSION

     III.A.    The Settlement and Release Bars Nova's Claims 
          Relating to Electronic Billing. 

     14.  AirTouch asserts as one of its threshold defenses that 
the Settlement and Release, which resolved the CPUC Proceeding, 
constitutes a waiver of Nova's claims in the pending Petition.37  
To a significant extent, we agree.  Specifically, as discussed 
below, we find that the Settlement and Release applies and bars 
the claims in the Petition that hinge on the electronic billing 
tape dispute that is the subject of the Settlement and Release.  
Nova's sole remedy regarding these claims, as stipulated in the 
Settlement and Release itself, is to seek enforcement of that 
agreement under California law.

     15.  The Petition is a continuation of the long-running 
dispute between Nova and AirTouch regarding the provision of 
electronic billing tapes for resale purposes.  The 1996 CPUC 
Complaint challenged AirTouch's unwillingness to provide Nova 
with electronic billing tape in connection with AirTouch retail 
plans.38  In order to resolve the CPUC Proceeding, the parties, 
both represented by counsel, entered into the Settlement and 
Release.  The Settlement and Release obligated AirTouch to 
provide in the future electronic billing tapes for any rate plan 
- retail or otherwise - whenever it was ``capable'' of doing 
so.39  Based explicitly on that promise going forward, Nova 
released all claims, existing and in the future, ``arising out of 
the matters involved'' in the CPUC Proceeding - i.e., the 
electronic billing tape dispute.40  In other words, the release 
(Paragraph 1) expressly is conditioned upon AirTouch's compliance 
with its agreement to provide billing tape in connection with any 
future rate plan when it was ``capable of doing so'' (Paragraph 
4).41 

     16.  In our view, the broad release language contained in 
Paragraph 1 of the Settlement and Release, coupled with the 
future obligation regarding AirTouch's provision of electronic 
billing tapes contained in Paragraph 4 of the Settlement and 
Release, means that Nova has released any future claims regarding 
AirTouch's obligation to provide electronic billing tapes, except 
a claim seeking enforcement under California law of the 
provisioning obligation contained in the Settlement and Release 
itself.  Although releases typically do not cover claims based on 
post-release conduct, the unique combination of Paragraphs 1 and 
4 leads us to conclude that that is precisely what the parties 
intended here.  Reading these Paragraphs in tandem, Nova obtained 
a promise from AirTouch regarding the provision of electronic 
billing tapes for future retail rate plans in exchange for Nova 
relinquishing its right to seek redress regarding such provision 
by means other than enforcement of the Settlement and Release.  
In other words, Nova expressly and deliberately waived its right 
to assert that AirTouch's conduct regarding the provisioning of 
electronic billing tapes violates the Act.

     17.  Nova disagrees that the release (contained in Paragraph 
1 of the Settlement and Release) applies to all claims under the 
Act arising from AirTouch's going-forward obligation (contained 
in Paragraph 4 of the Settlement and Release) to provide 
electronic billing tape.42  In particular, Nova suggests that the 
release relates solely to claims concerning the Easy 21 Plan that 
was specified in the CPUC Complaint, while the billing tape 
condition pertains to all present and future retail plans.43

     18.  We do not read the release so narrowly.  Its language 
is not limited to the Easy 21 Plan, or to rate plans enumerated 
in the CPUC Complaint.  Rather, the release, by its terms, 
applies to all claims ``arising out of the matters involved in'' 
the CPUC Complaint.44  In the CPUC Proceeding, Nova sought to 
enjoin AirTouch from billing Nova under a ``rate plan other than 
the Easy 21 Plan ... or such other favorable plan that the 
complainant and defendant agree upon.''45  The matters arising 
out of the CPUC Proceeding thus transcend the Easy 21 Plan.  
Paragraph 4 of the Settlement and Release, which expressly 
applies to future AirTouch rate plans, without limitation, 
further illustrates the breadth of the relief sought by Nova in 
the CPUC Proceeding.46

     19.  Nova's strained construction of the Settlement and 
Release thus ignores the inclusive wording of the release and the 
scope of the CPUC Complaint.  Moreover, Nova's interpretation 
overlooks the fact that the release specifically was conditioned 
on AirTouch's agreement with respect to all future rate plans.47  
Consequently, we think that the Settlement and Release, fairly 
read as a whole, releases all claims in the Petition pending 
before us that relate to the electronic billing tape dispute.48  
Nova's sole remedy for a breach of AirTouch's obligation in 
Paragraph 4 to provide electronic billing tape is to seek 
enforcement of that Paragraph pursuant to California law.49   
Therefore, we must determine whether Nova's claims under the Act 
in this proceeding hinge on the scope of AirTouch's obligation 
under the Settlement and Release to provide electronic billing 
tapes.  Such claims, to the extent they exist, must be dismissed 
as waived.

     20.  The gist of Nova's Petition pertains to precisely the 
same dispute about AirTouch's provision (or lack thereof) of 
electronic billing tapes that Nova asserted was at issue in the 
CPUC Proceeding.  In particular, Nova's Petition acknowledges 
that, in order to establish the violations of the Act alleged, 
Nova must demonstrate ``AirTouch's capability to provide an 
electronic billing format.''50  In fact, in the district court 
case, Nova unequivocally stated that all of its Communications 
Act claims hinge on the billing tape dispute:

          This lawsuit arises from the incredulity of 
          AirTouch's claim that their ``currently 
          existing billing system'' was incapable of 
          providing Nova with retail rates in an 
          electronic format .... [Nova] alleges that 
          AirTouch's continuing claim that they lacked 
          the capability to bill plaintiff accordingly 
          was without merit.

                            *   *   *

          [T]his is a straightforward dispute over 
          AirTouch's refusal to provide [Nova] with a 
          billing tape.51  

Indeed, Nova admits that the Settlement and Release covers the 
conduct at issue here.  Specifically, in support of its claim 
that AirTouch acted unreasonably, Nova affirmatively contends 
that AirTouch's conduct breaches the Settlement and Release 
because, according to Nova, AirTouch is capable of providing 
electronic billing tape to Nova by one method or another.52  
Therefore, with only a couple of exceptions addressed below,53 
Nova's purported claims under the Act here fall within the scope 
of the Settlement and Release, and hence must be dismissed as 
waived.

     21.   A closer examination of the particulars of Nova's 
claims buttresses this conclusion, because each of these claims 
hinges on AirTouch's conduct regarding the provision of 
electronic billing tapes.  As set forth above, the Petition 
specifies four ways in which AirTouch allegedly violated the Act.  
First, the Petition alleges that AirTouch denied Nova 20 retail 
(and five wholesale) rate plans that were offered to other 
customers.54  Nova alleges that it could not take advantage of 
those retail plans ``because AirTouch did not offer or make 
available to Nova any form of electronic billing with those 
plans.''55  Therefore, to the extent that Nova bases its claim on 
these retail plans, the claim is barred by the Settlement and 
Release.  We note that the five wholesale plans cited by Nova, 
however, do not appear to relate to the electronic billing issue.  
Consequently, Nova has not relinquished its rights to have us 
decide claims under the Act regarding those plans, and we address 
them below.56

     22.  Second, the Petition alleges that AirTouch failed to 
afford Nova a form of electronic billing with its rate plans, 
thereby denying Nova the ability to resell cellular services on 
the same terms and conditions provided to other AirTouch 
customers.57  This claim explicitly rests upon the electronic 
billing dispute and, accordingly, the Settlement and Release bars 
the claim.

     23.  Third, the Petition alleges that, if AirTouch proves 
that it could not provide electronic billing to Nova, then 
AirTouch failed manually to adjust its monthly bills to Nova and 
calculate appropriate credits so that Nova would receive the same 
rates as AirTouch's other customers.58  In other words, Nova 
contends that AirTouch could have compensated for its failure to 
provide electronic billing by manually adjusting Nova's bills 
each month.59  We view this alternative argument as part and 
parcel of the underlying dispute regarding electronic billing 
covered by the Settlement and Release, in which AirTouch 
committed to supply electronic billing tape to Nova whenever 
AirTouch was capable of doing so.  Nova's contention that 
AirTouch has breached this commitment - by failing to provide 
manual credits or otherwise - falls within the scope of the 
Settlement and Release.60

     24.  Fourth, the Petition claims that AirTouch failed to 
change rate plans offered to Nova in the same timely manner that 
AirTouch changed rate plans for other customers.61  This claim 
does not concern AirTouch's conduct regarding the provision of 
electronic billing tapes.  Thus, the Settlement and Release does 
not appear to bar this claim.  Accordingly, we will analyze it on 
the merits below.62

     25.  In sum, because the parties have entered into the 
Settlement and Release agreement, we do not need to determine if 
the actions of AirTouch with regards to the electronic billing 
tape in the instant proceeding are in violation of the Act.  If 
Nova wishes to pursue those claims, it must do so through 
enforcement of the Settlement and Release under California law.  
Accordingly, we deny Nova's Petition with respect to those 
claims.  Consequently, only two of Nova's claims remain - whether 
AirTouch unlawfully denied Nova access to five wholesale rate 
plans that AirTouch offered to other customers, and whether 
AirTouch unreasonably discriminated against Nova by not timely 
responding to Nova's rate plan change requests.  

     III.B.    Nova Failed to Submit Adequate Proof of Its 
          Remaining Claims.

          1.   Access to Wholesale Plans

     26.  According to the Petition, AirTouch denied Nova access 
to rate plans that AirTouch offered to other customers, in 
violation of sections 201(a), 201(b), and 202(a) of the Act, as 
well as the Resale Rule.63  Specifically, the Wheatland 
Declaration identifies five wholesale plans in AirTouch's 
discovery responses that ``AirTouch never made available to Nova 
and that Nova did not even know existed until AirTouch'' served 
its discovery responses.64  Mr. Wheatland notes that these five 
plans would have been more favorable to Nova than the wholesale 
plans that AirTouch actually offered to Nova during the dispute 
period.65  

     27.  The AirTouch discovery response referenced in the 
Wheatland Declaration is Table 3, which lists AirTouch rate plans 
and the dates they were available.66  In the cover letter 
accompanying Table 3, counsel for AirTouch indicated that 
AirTouch compiled the information contained in the table by 
searching numerous databases, and that plans could have been 
listed that never were actually made available to any customer.67  
AirTouch later corrected Table 3, stating that the five wholesale 
plans in question were ``never actually `rolled out' commercially 
and made available to any customer.''68  In response, Nova 
submitted no contrary evidence.  Consequently, Nova has not 
established that AirTouch ever made available to any of its 
customers the five wholesale plans identified by Mr.Wheatland.  
Therefore, Nova has failed to submit sufficient proof of its 
claim that it was denied access to those plans.

          2.   Rate Plan Changes

     28.  The Petition alleges that AirTouch unreasonably 
discriminated against Nova, in violation of section 202(a), by 
failing ``to change rate plans for [Nova] in the same timely ... 
manner that it changed rate plans for its other customers.''69  
In resolving discrimination claims under section 202(a), the 
Commission employs a three-step inquiry:  (1) whether the 
services at issue are ``like''; (2) if so, whether there are 
differences in the terms and conditions pursuant to which the 
services are provided; and (3) if there are such differences, 
whether they are reasonable.70  When a complainant establishes 
the first two components, the burden of persuasion shifts to the 
defendant carrier to justify the discrimination as reasonable.71  
As discussed below, we find that Nova has failed to demonstrate 
that there were differences in the terms and conditions under 
which AirTouch provided like communication service; we further 
find that, in any event, any discrimination was reasonable.

     29.  Nova bases its allegation of discriminatory treatment 
primarily on the fact that, as a general rule, AirTouch changes 
cellular rate plans more quickly for retail customers than for 
resellers.  Specifically, Nova contends that (1) AirTouch changes 
rate plans for a retail customer within one business day, while 
AirTouch takes 20 business days or more to change rate plans for 
a reseller, and (2) AirTouch requires less change documentation 
from retail customers than resellers.72  

     30.  In support of this claim, Nova again relies on the 
Wheatland Declaration, which states that, as an AirTouch retail 
customer, Mr. Wheatland is able to effectuate a rate plan change 
by telephone in one day.73  In addition, Nova relies on 
AirTouch's interrogatory response indicating that retail 
customers typically request such a change by telephone, and that 
``[t]he rate plan change becomes effective as agreed upon with 
the customer but no sooner than the next business day.''74  
According to that interrogatory response, AirTouch 
representatives provide retail customers the option of changing 
rate plans at the end of the current billing cycle (which 
AirTouch prefers).75  

     31.  With regard to resellers, AirTouch's discovery 
responses reveal that AirTouch requires some documentation to 
effectuate a plan change.  Prior to November 1998, resellers had 
to submit rate plan change requests to AirTouch either on a 
prepared form or by letter listing each mobile phone number for 
which the change was requested.76  This process purportedly took 
longer for reseller rate plan changes than for retail rate plan 
changes, because AirTouch needed to alter the service record of 
each individual customer served by the reseller.77  After 
November 1998, AirTouch still required resellers to submit the 
rate plan change requests via faxed forms; however, AirTouch's 
computer system then was able to process the changes in batches, 
rather than individually.78  Nevertheless, the change request 
form states that ``AirTouch will make reasonable efforts to 
process the rate plan changes requested within twenty days'' 
after AirTouch accepts the request in writing.79

     32.  This record falls short of establishing a violation of 
section 202(a).  Beyond Mr.Wheatland's anecdotal recollection 
that, as a retail customer, he could change rate plans in a 
single day, there is no evidence of how quickly AirTouch actually 
effectuates retail rate plan changes.  Rather, the record only 
indicates that AirTouch and the customer agree on the effective 
date of any retail plan change, and that AirTouch preferred to 
make such changes effective as of the end of a billing cycle.80  
Thus, the record does not permit us to conclude that AirTouch 
does, in fact, treat resellers differently than retail customers 
regarding change requests.  Moreover, AirTouch's practice, based 
on this record, appears to be reasonable.  Nova does not dispute 
that making rate plan changes for a reseller that has numerous 
individual mobile phone subscribers could be more time consuming 
than making such a change for a single retail customer.  Nor is 
there any basis for disputing that requiring resellers to submit 
a written request on a standardized form is reasonable.  

     33.  Nova alleges further examples of ``damaging, 
unreasonably discriminatory treatment.''81  First, Nova asserts 
that it requested a credit for AirTouch's 11-day delay in 
changing a wholesale rate plan as requested in May 1997, and that 
AirTouch did not approve the credit for almost nine months.82  
Nova provides no information about the timing of a comparable 
credit for a similarly-situated retail customer.  Thus, Nova has 
failed to establish a prima facie case of discrimination under 
section 202(a).

     34.  Second, Nova argues that, in November 1998, AirTouch 
discontinued two of its wholesale rate plans with only one day 
notice, and that AirTouch forced Nova to choose new wholesale 
rate plans that were less favorable, ``without according Nova the 
benefits of the AirTouch policy that allowed customers to receive 
plans beyond the stated expiration date.''83  Correspondence 
attached to the Wheatland Declaration confirms that Nova was 
unhappy with the one-day notice, but it also confirms that 
AirTouch sent all resellers, including Nova, the same 
notification at the same time.84  Again, therefore, Nova has not 
established a violation of section 202(a), based on this 
record.85  

     35.  Finally, Nova complains that in February 1999, it 
requested a wholesale rate plan change and that, despite 
ultimately submitting the requisite standard form on March 24, 
1999, AirTouch never complied with the request.86  Nova makes no 
suggestion that AirTouch did not require other similarly-situated 
customers to submit such wholesale rate plan change requests in 
writing.  Moreover, as indicated above, Nova has not demonstrated 
that AirTouch's process for changing wholesale rate plans is 
unreasonable.  Furthermore, Nova overlooks the fact that, after 
demanding payment, AirTouch terminated service to Nova on May 1, 
1999.  We cannot conclude that AirTouch acted unreasonably in not 
changing Nova's wholesale rate plan when Nova apparently had not 
paid for service.  Yet again, therefore, Nova has not established 
a violation of section 202(a), based on this record.

IV.  CONCLUSION

     36.  In sum, we conclude that Nova's claims relating to 
AirTouch's failure to provide electronic billing tape are the 
subject of the Settlement and Release.  Thus, Nova cannot assert 
those claims in this proceeding, and we deny this aspect of its 
Petition.  Nova's proper recourse is to seek enforcement of the 
Settlement and Release under California law, as provided in that 
agreement.  In addition, because Nova failed to submit sufficient 
evidence, we also deny its remaining claims relating to (1) 
denial of access to five wholesale plans, and (2) discrimination 
in the time it takes AirTouch to respond to rate plan change 
requests.87
V.   ORDERING CLAUSES

     37.  ACCORDINGLY, IT IS ORDERED, pursuant to sections 1, 
4(i), 4(j), 201, and 202(a) of the Communications Act of 1934, as 
amended, 47 U.S.C.  151, 154(i), 154(j), 201, and 202(a), and 
section 20.12 of the Commission's rules, 47 C.F.R.  20.12, that 
the Petition filed by Nova against AirTouch IS DENIED in its 
entirety.

     38.  IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 
and 4(j) of the Communications Act of 1934, as amended, 47 U.S.C. 
 151, 154(i), and 154(j), that the Motion to Dismiss, filed on 
April 3, 2000; the Application for Review, filed on September 11, 
2000; the Motion to Strike or Exclude AirTouch Cellular Proposed 
Exhibits from the Evidentiary Record, filed on May 4, 2001; and 
the Further Motion to Strike or Exclude AirTouch Cellular 
Proposed Reply Exhibits from the Evidentiary Record, filed on May 
23, 2001, ARE DISMISSED as moot.

                              FEDERAL COMMUNICATIONS COMMISSION





                              Marlene H. Dortch                                                            
                              Secretary



_________________________

1         The file number previously assigned to this matter was 
ENF-00-002.  When citing to the parties' pleadings, this Order 
refers to the prior file number.
2         Petition for Declaratory Ruling, File No. ENF-00-002 
(filed Feb. 21, 2000) (``Petition'').
3         47 C.F.R  20.12, effective September 23, 1996, 61 Fed. 
Reg. 38388 (July 24, 1996), modified, effective January 10, 2000, 
64 Fed. Reg. 61022 (Nov. 9, 1999) (``Resale Rule'').  
4         47 U.S.C.  201(a), 201(b), and 202(a).
5         Petition, Exhibit 1 (First Amended Complaint for 
Damages and Injunctive Relief, Nova Cellular West, Inc. v. 
AirTouch Cellular, Inc., No. C 99-2142 [CAL], United States 
District Court, Northern District of California (filed May 25, 
1999)) (``District Court Complaint'') at 2,  4.
6         Id.; Joint Stipulation of Stipulated Facts and Disputes 
Remaining, File No. ENF-00-002 (filed Apr. 14, 2000) (``Joint 
Stipulation'') at 2,  2-3. 
7         Petition, Exhibit 8 (Wheatland District Court 
Declaration) at 2,  4.
8         Petition, Exhibit 1 (District Court Complaint) at 2,  
5.
9         The Commission uses SMSAs, which the Office of 
Management and Budget defines based on population statistics, to 
allocate cellular radio licenses.
10   Response to Petition for Declaratory Ruling, File No. ENF-
00-002 (filed Apr. 3, 2000) (``Response to Petition'') at 5-6,  
13; Petition, Exhibit 1 (District Court Complaint) at 2,  5.  At 
the time Nova filed the Petition, the licensee of record for the 
San Diego B-block cellular license was Vodafone AirTouch 
Licensees, LLC.  As of April 3, 2000, the license was transferred 
to Cellco Partnership, a subsidiary of Verizon Wireless.  See 
Reply of AirTouch Cellular, File No. ENF-00-002 (filed Apr. 18, 
2000) (``Reply'') at 1 n.1.
11   See Nova Cellular West, Inc. d/b/a [sic] Consolidated Reply 
to AirTouch Cellular's Response to Petition for Declaratory 
Ruling & Motion to Dismiss, File No. ENF-00-002 (filed Apr. 11, 
2000) (``Nova Consolidated Reply'') at 2; Response to Petition, 
Exhibit 7 (Declaration of Monica Chang) (``Chang Declaration'') 
at 1,  2-3.
12        Response to Petition, Exhibit 7 (Chang Declaration) at 
1,  2-3; Petition, Exhibit 8 (Declaration of Paul Wheatland in 
Opposition to Defendant's Motion to Refer to the FCC, dated 
August 6, 1999) (``Wheatland District Court Declaration'') at 2-
3,  6.
13        Petition, Exhibit 1 (District Court Complaint) at 5-6, 
 19.
14   Id. at 2,  4-5.
15   Id.
16   Nova Consolidated Reply, Exhibit 16 (Amended Complaint & 
Request for Immediate Cease & Desist Order, Nova Cellular West, 
Inc. d/b/a San Diego Cellular v. AirTouch Cellular of San Diego, 
C 96-12-027, Before the Public Utilities Commission of the State 
of California (filed Apr. 10, 1997) (``1996 CPUC Complaint'')).
17   Id. at 2. 
18   Id. at 3-4 (emphasis added). 
19   Petition, Exhibit 11 (Settlement and Release) at 1-2, 5,  
1, 4, 14 (emphasis added); see Joint Stipulation at 3,  11.
20   Petition, Exhibit 8 (Wheatland District Court Declaration) 
at 2,  5.  
21   Id. at 2-3,  6-7.  
22   Petition, Exhibit 1 (District Court Complaint) at 4-6,  
15-20.
23   Id. at 6-7,  20-23; see Joint Stipulation at 3,  7.
24   Petition, Exhibit 1 (District Court Complaint) at 6-7,  
23-25; see Joint Stipulation at 3,  8.
25   Id.; see Joint Stipulation at 4,  13.
26   Id. at 5-6,  19.
27   Petition, Exhibit 1 (District Court Complaint) at 7-10,  
27-46.  In addition, the District Court Complaint asserts six 
state law claims, including intentional interference with 
prospective economic opportunity, intentional misrepresentation, 
unfair business practices, intentional interference with 
contractual relations, conversion, and trespass, as well as a 
cause of action seeking injunctive relief.  Id. at 10-17,  47-
87.
28   Petition, Exhibit 8 (Wheatland District Court Declaration) 
at 1-3,  2, 5-7.
29   Petition, Exhibit 1 (District Court Complaint) at 4-6,  
15-19.
30   Id. at 5-6,  19.
31   Nova Consolidated Reply, Exhibit 13 (Defendant AirTouch 
Cellular's Notice of Motion to Dismiss the First Amended 
Complaint, Nova Cellular West, Inc. dba San Diego Wireless v. 
AirTouch Cellular, Inc., No. C 99-2142 [CAL], United States 
District Court, Northern District of California (filed June 29, 
1999)) at 1-2.
32   Petition, Exhibit 2 (Order Granting in Part and Denying in 
Part AirTouch Cellular's Motion to Dismiss the First Amended 
Complaint, Nova Cellular West, Inc. dba San Diego Wireless v. 
AirTouch Cellular, Inc., No. C 99-2142 [CAL], United States 
District Court, Northern District of California (dated Oct. 8, 
1999)) at 2.
33   Id.
34   Id. at 1, 6-10.
35   Id. at 2.  See also Nova Consolidated Reply at 1-3; Opening 
Brief of Nova Cellular West, Inc. d/b/a San Diego Wireless 
Communications, File No. ENF-00-002 (filed Apr. 13, 2001) (``Nova 
Opening Brief'') (Summary) at 1; Reply Brief of Nova Cellular 
West, Inc. d/b/a San Diego Wireless Communications, File No. ENF-
00-002 (filed May 4, 2001) (``Nova Reply Brief'') at i, 1-8.
36   Petition at 5-6.  See Nova Opening Brief at 5-6; Nova 
Consolidated Reply at 16-17; Nova Reply Brief at 8.  AirTouch 
filed a Motion to Dismiss, and later an Application for Review, 
asserting that the manner in which Commission staff structured 
this proceeding deprived AirTouch of a fair opportunity to 
respond to Nova's allegations.  Motion to Dismiss, File No. ENF-
00-02 (filed Apr. 3, 2000) (``Motion to Dismiss''); Application 
for Review, File No. ENF-00-002 (filed Sept. 11, 2000) 
(``Application for Review'').  AirTouch's assertions are 
meritless.  The Commission has broad discretion in managing its 
proceedings.  See 47 U.S.C.  154(i) and 154(j); see also Global 
Crossing Telecommunications, Inc. v. FCC, 259 F.3d 740, 748 (D.C. 
Cir. 2001) (the Commission ```enjoys wide discretion in 
fashioning its own procedures,''' and is authorized by section 
208 ``to investigate a complaint `in such a manner and by such 
means as it shall deem proper''') (quoting City of Angels Broad., 
Inc. v. FCC, 745 F.2d 656, 664 (D.C. Cir. 1984); 47 U.S.C.  
208).  In doing so here, Commission staff afforded AirTouch ample 
opportunity to respond to Nova's allegations.  In particular, 
Commission staff permitted AirTouch to conduct significant 
discovery and file several briefs responding to Nova's claims.  
See, e.g., Reply of Airtouch Cellular, File No. ENF-00-002 (filed 
Apr. 18, 2000) (``Reply''); Initial Brief of AirTouch Cellular, 
File No. ENF-00-002 (filed Apr. 13, 2001) (``AirTouch Initial 
Brief''); Reply Brief of AirTouch Cellular, File No. ENF-00-002 
(filed May 4, 2001) (``AirTouch Reply Brief'').  Indeed, the 
record in this proceeding is quite voluminous - the parties took 
four depositions and submitted a total of more than 100 exhibits.  
Further, contrary to AirTouch's assertion, Commission staff 
expressly ruled that Nova bears the burden of proof.  Letter from 
Roderick A. Mette, Attorney, Market Disputes Resolution Division, 
Enforcement Bureau, to Peter A. Casciato, counsel for Nova, and 
Kenneth D. Patrich, counsel for AirTouch, File No. ENF-00-02 
(dated Apr. 21, 2000).  In any event, because we are denying the 
Petition, we dismiss as moot both the Motion to Dismiss and the 
Application for Review.
37   Response to Petition at 30,  72-73; AirTouch Initial Brief 
at ii, 22-23.
38   Nova Consolidated Reply, Exhibit 16 (CPUC Complaint) at 2.
39   Petition, Exhibit 11 (Settlement and Release) at 2,  4.  
The Resale Rule requires CMRS carriers to provide electronic 
billing only if it can be made available ``without significant 
alterations'' to the carrier's system.  See Interconnection and 
Resale Obligations Pertaining to Commercial Mobile Radio 
Services, Memorandum Opinion and Order on Reconsideration, FCC 
99-250, 17 Comm. Reg. (Pike & Fisher) 518,  54 (rel. Sept. 27, 
1999) (``CMRS Resale Reconsideration Order'').  Nova construes 
the affirmative obligation contained in Paragraph 4 of the 
Settlement and Release as holding AirTouch to a stricter 
standard, contending that AirTouch must provide electronic 
billing tapes whenever it is capable of doing so, regardless of 
the scope of alterations necessary.  See Nova Consolidated Reply 
at 16-17. 
40   Petition, Exhibit 11 (Settlement and Release) at 1,  1.
41   Id. at 1 (``[U]pon satisfaction of the conditions set forth 
at Paragraph 4 below, the parties agree as follows ....'').
42   Nova Consolidated Reply at 16-17.
43   See Nova Consolidated Reply at 17; Nova Reply Brief at 8.
44   Petition, Exhibit 11 (Settlement and Release) at 1,  1.
45   Nova Consolidated Reply, Exhibit 16 (CPUC Complaint) at 3-4 
(emphasis added).
46   Petition, Exhibit 11 (Settlement and Release) at 2,  4; see 
also Petition, Exhibit 8 (Wheatland District Court Declaration) 
at 2,  5.
47   Nova further suggests that the Commission somehow can avoid 
deciding the waiver issue, because its claim that AirTouch 
breached the Settlement and Release is covered by the state 
causes of action for intentional misrepresentation and unfair 
business practices, which the federal district court stayed.  
Nova Consolidated Reply at 17-18.  Regardless of the substance of 
any state law claim, however, the Settlement and Release between 
Nova and AirTouch released all claims under the Act relating to 
the billing dispute and thus bars such claims here.
48   See, e.g., In re: Crystal Properties, Ltd., 268 F.3d 743, 
748 (9th Cir. 2001) (quoting Kennewick Irrigation Dist. v. United 
States, 880 F.2d 1018, 1032 (9th Cir. 1989)) (under California 
law, a ``written contract must be read as a whole and every part 
interpreted with reference to the whole.'').
49   Petition, Exhibit 11 (Settlement and Release) at 5,  4.
50   Petition at 5-6 (emphasis added).  This is consistent with 
the District Court Complaint, which alleges that AirTouch refused 
to provide various rate plans and promotions to Nova ``because an 
electronic billing format for these offerings has not been 
developed for resellers.''  Petition, Exhibit 1 (District Court 
Complaint) at 5-6,  19.  According to Nova, ``[t]he detailed 
electronic bill NOVA receives from AIRTOUCH provides the call 
detail necessary for NOVA to bill its own customers.  AIRTOUCH'S 
unwillingness to provide an electronic bill for any service 
offering thus insulates any such service offering from resale, 
thereby discriminating against NOVA and similarly-situated resale 
customers.''  Id.
51   Response to Petition, Exhibit 6 (Plaintiff's Opposition to 
Defendant's Motion to Dismiss the First Amended Complaint) at 1.
52   Petition at 5; Nova Opening Brief at 15-16.
53   See Section III(B), infra.
54   Petition at 2-6, 8; see Nova Consolidated Reply at 3, 14-18; 
Nova Opening Brief at 1-2 (Summary), 2-5; Nova Reply Brief at 6-
7; Further Evidentiary Submission of Nova Cellular West, Inc. dba 
San Diego Wireless, File No. ENF-00-002 (filed Dec. 5, 2000) 
(``Nova Further Submission''), Exhibit 22 (Declaration of Paul 
Wheatland) (``Wheatland Declaration'') at 1,  2.
55   Id. at 4,  8.
56   See Section III (B), infra.
57   Petition at 2-6, 8-9; see Nova Opening Brief at 1-4 
(Summary), 5-14; Nova Reply Brief at 2-3.
58   Petition at 2, 9-10; see Nova Opening Brief at 1, 4 
(Summary), 14-15; Nova Reply Brief at 2-3.
59   Nova Opening Brief at 15.
60   Petition, Exhibit 11 (Settlement and Release) at 5,  14.
61   Petition at 2.
62   See Section III (B), infra.
63   Petition at 2, 6-8.  See Nova Consolidated Reply at 1-3, 13-
21; Nova Opening Brief at 2-5, 22-25.
64   Nova Further Submission, Exhibit 22 (Wheatland Declaration) 
at 1,  3.  See Nova Opening Brief at 2-3; Nova Reply Brief at 6-
7.
65   Nova Further Submission, Exhibit 22 (Wheatland Declaration) 
at 1,  3.
66   Nova Further Submission, Exhibit 23.
67   Id., Letter dated November 9, 2000 to Peter Casciato, 
counsel for Nova, from Timothy J. Cooney, counsel for AirTouch, 
at 1 n.1.
68   AirTouch Exhibits, Vol. II, File No. ENF-00-02 (filed Apr. 
4, 2001), Exhibit 65 (Letter dated January 3, 2001 from Timothy 
J. Cooney, counsel for AirTouch, to Peter Casciato, counsel for 
Nova) at 1-2.
69   Petition at 2.  See id. at 10; Nova Opening Brief at 16-18.  
Nova suggests that the alleged discriminatory treatment also 
violates section 201.  Id.  Because the conduct at issue is 
discrimination, we view these claims to be the same.  Therefore, 
we analyze the claim under section 202(a), which, as discussed 
below, entails a burden-shifting analysis that is more favorable 
to the Complainant.
70   See, e.g., MCI Telecommunications Corp. v. FCC, 917 F.2d 30, 
39 (D.C. Cir. 1990).
71   See id.  See also National Communication Ass'n, Inc. v. AT&T 
Corp., 238 F.3d 124, 129-30 (2d Cir. 2001).
72   Nova Opening Brief at 16-17.
73   Nova Further Submission, Exhibit 22 (Wheatland Declaration) 
at 9-10,  15.
74   Nova Further Submission, Exhibit 18 (Response to 
Interrogatory No. 9) at 11-12.
75   Id.
76   Id., Exhibit 18 (Response to Interrogatory No. 10) at 12.
77   Id.
78   Id. 
79   Id. at 12-13.
80   Id., Exhibit 18 (Response to Interrogatory No. 9) at 11-12.
81   Nova Opening Brief at 17.
82   Nova Further Submission, Exhibit 22 (Wheatland Declaration) 
at 8,  12 and Attachment G; Nova Opening Brief at 17.
83   Nova Opening Brief at 17; Nova Further Submission, Exhibit 
22 (Wheatland Declaration) at 8-9,  13.
84   Nova Further Submission, Exhibit 22 (Wheatland Declaration), 
Attachment H.
85   Nova further alleges that, in November 1998, it sought the 
equipment discounts and expanded local coverage available in 
AirTouch retail plans.  Nova Opening Brief at 18; Nova Further 
Submission, Exhibit 22 (Wheatland Declaration) at 9,  14.  This 
dispute, too, involves AirTouch's failure to provide electronic 
billing tapes to resellers in connection with retail plans and 
thus is barred by the Settlement and Release, for all of the 
reasons explained in Section III (A), supra.  
86   Nova Opening Brief at 18; Nova Further Submission, Exhibit 
22 (Wheatland Declaration) at 9-10,  15 and Attachment I.
87   Two Nova motions to strike AirTouch exhibits remain pending.  
Motion to Strike or Exclude AirTouch Cellular Proposed Exhibits 
from the Evidentiary Record, File No. ENF-00-002 (filed May 4, 
2001); Further Motion to Strike or Exclude AirTouch Cellular 
Proposed Reply Brief Exhibits from the Evidentiary Record, File 
No. ENF-00-002 (filed May 23, 2001).  Because both motions 
pertain to exhibits on which this Order does not rely, we dismiss 
both motions as moot.  In addition, on December 5, 2000, Nova 
filed a motion for the public release of AirTouch Table 3, which 
lists AirTouch rate plans and the dates they were available 
during the dispute period.  Motion of Nova Cellular West, Inc. 
for Public Release of AirTouch Table 3, File No. ENF-00-002 
(filed Dec. 5, 2000).  Given the disposition of this Petition, we 
also dismiss this motion as moot.