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


In the matter of                   )
                              )
Staton Holdings, Inc. d/b/a             )
Staton Wholesale,                  )
                              )
Complainant,                       )
                              )
     v.                       )    File No. EB-03-TC-F-003
                              )
Mills Fleet Farm, Inc.,                 )
                              )
Defendant.                         )
____________________________________)
Staton Holdings, Inc. d/b/a             )
Staton Wholesale,                  )
                              )
Complainant,                       )
                              )
     v.                       )    File No. EB-03-TC-F-006
                              )
First Data Voice Service,               )
                              )
Defendant.                         )


                              ORDER

Adopted:  June 27, 2003                 Released:  June 30, 2003 

By the Deputy Chief, Telecommunications Consumers Division, 
Enforcement Bureau:

                        I.   INTRODUCTION


       1. On December  19, 2002,  Staton Holdings,  Inc.,  d/b/a/ 
Staton   Wholesale   (``Staton'')   filed   with   the    Federal 
Communications Commission  (``Commission'')  a  formal  complaint 
(``Mills Complaint'') against Mills  Fleet Farm, Inc  (``Mills'') 
as   well   as   similar   complaints   against   MCI    WorldCom 
Communications, Inc. (``MCI'') and Sprint Communications Company, 
L.P., (``Sprint'').1  On  April 23, 2003,  Staton filed a  formal 
complaint against First Data  Voice Service (``FDVS  Complaint'') 
alleging essentially the same  pertinent facts as against  Mills.  
The complaints allege that Staton  had acquired the right to  use 
the toll-free vanity  number 888-888-8888,2  and that  defendants 
MCI, Sprint,  and  FDVS  knowingly and  intentionally  took  this 
vanity number from Staton without its consent, and that defendant 
Mills held the number.3   Mills filed a  Motion for Dismissal  on 
March 13, 2003,4 and  FDVS filed a Motion  to Dismiss on May  28, 
2003.5

                       II.     BACKGROUND

       2. Staton is a clothing distributor based in Dallas, 
Texas, with annual revenues of approximately $130,000,000.6  It 
is incorporated in Texas, and has been in business since 1981.

       3. Mills states  that it  operates retail  stores  selling 
building  supplies,  hardware,  and  other  general   merchandise 
throughout the  Midwestern United  States.   It alleges  that  it 
received access  to the  toll-free vanity  number at  issue  here 
through  a  gift  card  vendor  with  whom  Mills  contracted  to 
manufacture and supply gift  cards for Mills' stores.   According 
to Mills, these cards can be purchased at its stores, be given as 
gifts, and then used later  to purchase merchandise.  The  vanity 
number in question is listed on the back of the card, so that the 
bearer of the card  can call and determine  the amount of  credit 
remaining on the card.7   Mills alleges that  it does not  answer 
any calls placed to this vanity number.  

       4. FDVS provides data  storage, retrieval, and  processing 
services.8    Many   of   these   services   are   provided   via 
telecommunications connections  that allow  customers to  deliver 
and retrieve data  from remote locations.9   FDVS states that  it 
has used the toll-free  vanity number at  issue here since  April 
26, 2001, to provide FDVS's Interactive Voice Response service to 
an affiliated entity which, in turn, uses the service to  provide 
data services.10

       5. On March 13, 2003, Mills filed a motion contending that 
the Mills Complaint should be dismissed because: (1) it fails  to 
state a cause of action under the Communications Act of 1934,  as 
amended (the ``Act''); (2)  the Commission lacks jurisdiction  to 
grant Staton's requested relief as Mills is not a common carrier; 
and (3) Mills does  not own or control  the rights to the  vanity 
number at issue.11  Mills has attached a Responsible Organization 
Change Authorization  Form  dated April  1,  2001, to  its  Mills 
Motion.  This form  indicates that  the customer  for the  vanity 
number in  question was  FDC/Call  Interactive.12  This  date  is 
consistent with  the  Mills  Complaint, which  alleges  that  MCI 
disconnected the  vanity  number  in April  2001.13   Mills  also 
requests an award of its reasonable costs and the attorney'  fees 
incurred in connection with this proceeding.14

       6. Staton initially filed an Opposition to the Motion  for 
Dismissal on March 24, 2003.  15  Staton stated there that  Mills 
was included  as  a  defendant  ``to  provide  a  means  for  the 
Commission to  enforce the  requested remedy.''16   On April  14, 
2003, Staton filed  a letter requesting  that Mills be  dismissed 
without prejudice,  on  the  express condition  that  should  the 
Commission find that its involvement is essential to adjudicating 
the Mills Complaint, it  be included to  the extent necessary  to 
resolve this matter.17

       7. In a motion filed on  May 28, 2003, FDVS contends  that 
the FDVS Complaint  should be dismissed  on essentially the  same 
grounds that Mills cites.   Specifically, FDVS contends that  the 
complaint against it fails to state  a cause of action under  the 
Act, and that the Commission lacks jurisdiction to grant Staton's 
requested relief as FDVS is not a common carrier.18

       8. Staton filed  an Opposition  to the  Motion to  Dismiss 
Formal Complaint on  June 2, 2003.19   Again, Staton states  that 
FDVS was included  as a defendant  ``to provide a  means for  the 
Commission to enforce the  requested remedy.''20  It admits  that 
FDVS is not a common  carrier.21  Staton contends, however,  that 
the Commission can assert limited jurisdiction over FDVS for  the 
purpose   of    carrying   out    the   Commission's    statutory 
responsibilities.22

                       III.    DISCUSSION

       9. As  a  threshold  matter,  we  must  determine  whether 
Staton's complaints comply  with the filing  requirements of  the 
Act and the Commission's  rules.  Section 208  of the Act  states 
that a complaint  must be directed  against ``any common  carrier 
subject to  this  Act.''23   Further,  section  1.720(b)  of  the 
Commission's rules states that a formal complaint ``must  contain 
facts which, if true, are sufficient to constitute a violation of 
the Act or Commission order or regulation.''24  Section  1.721(a) 
of the Commission's  rules states that  a formal complaint  shall 
contain a ``[c]itation to the  section of the Communications  Act 
and/or order and/or regulation of the Commission alleged to  have 
been violated.''25  

       10.     Staton does  not allege  that  Mills is  a  common 
carrier subject to Section 208 of the Act.26  Moreover,  Staton's 
own pleadings admit that ``the only reason Mills was included  as 
a defendant in the  Formal Complaint was to  provide a means  for 
the Commission  to enforce  the requested  remedy and  order  the 
appropriate  parties  to   return  the  All   Eights  Number   to 
Staton.''27  Staton does not allege  that Mills violated the  Act 
or the  Commission's  rules or  orders,  but relies  on  sections 
152(a) and 154(i) of the Act, contending that those sections give 
the  Commission  the  flexibility  to  assert  jurisdiction  over 
Mills.28  Finally, we note that Staton supports the dismissal  of 
Mills, albeit without prejudice to allow Mills to be included  in 
these proceedings  in  the  future if  deemed  necessary  by  the 
Commission.29

       11.     Regarding FDVS, again, Staton does not allege that 
it is a common  carrier.30  In fact,  Staton readily admits  that 
FDVS is ``not  directly subject  to the  Act.''31  Staton  states 
that its  complaint  against FDVS  was  intended as  a  means  to 
enforce Staton's  requested  remedy.32  Staton  again  relies  on 
sections 152(a)  and 154(i)  of the  Act, contending  that  those 
sections  give   the  Commission   the  flexibility   to   assert 
jurisdiction over FDVS.33  

       12.     We conclude that Staton's complaints against Mills 
and FDVS fail to comply with threshold requirements for a  formal 
complaint.  Specifically, these  complaints fail  to allege  that 
common carriers have violated the  Act or the Commission's  rules 
or orders, as required  by section 208 of  the Act, and  sections 
1.720(b) and 1.721(a) of the Commission's rules.  Hence, we  find 
that these complaints do not state  a cause of action upon  which 
relief can be granted.  We therefore dismiss, with prejudice, the 
complaints against Mills and FDVS.  We note that Staton does  not 
object to the dismissal of the Mills Complaint.

       13.     The Act and  the Commission's rules  do not  allow 
the  Commission  to  award  attorney's  fees  or  costs.  34   We 
therefore deny Mills' request for such an award.

                    IV.     ORDERING CLAUSES

       14.     Accordingly, IT IS  ORDERED, pursuant to  Sections 
4(i), 4(j), and 208 of the Communications Act of 1934 as amended, 
47 U.S.C.  154(i), 154(j), 208, and the authority delegated  in 
sections 0.111 and 0.311 of the Commission's rules, 47 C.F.R.   
0.111, 0.311, that the Motion for Dismissal of Mills Fleet  Farm, 
Inc. and for an Award of  Attorney's Fees is GRANTED in part  and 
DENIED in part, as set forth above.

       15.     IT IS  FURTHER  ORDERED that  the  above-captioned 
formal complaint IS  DISMISSED WITH PREJUDICE  as to Mills  Fleet 
Farm, Inc., and that this proceeding IS TERMINATED with regard to 
Mills Fleet Farm, Inc.

       16.     IT IS FURTHER ORDERED  that, pursuant to  Sections 
4(i), 4(j), and 208 of the Communications Act of 1934 as amended, 
47 U.S.C.  154(i), 154(j), 208, and the authority delegated  in 
sections 0.111 and 0.311 of the Commission's rules, 47 C.F.R.   
0.111, 0.311, that the Motion  to Dismiss Formal Complaint  filed 
by First Data Voice Services is GRANTED.

       17.     IT IS  FURTHER  ORDERED that  the  above-captioned 
formal complaint IS  DISMISSED WITH  PREJUDICE as  to First  Data 
Voice Services,  and  that  this proceeding  IS  TERMINATED  with 
regard to First Data Voice Services.



                         FEDERAL COMMUNICATIONS COMMISSION



                         Kurt A. Schroeder                       
Deputy Chief, Telecommunications Consumers Division              
Enforcement Bureau                                               
Federal Communications Commission



_________________________

1   See Staton v. MCI, File No. EB-02-TC-F-008; Staton v. Sprint, 
File No. EB-03-TC-F-002.
2  Mills Complaint at 8; FDVS Complaint at 7.
3  Mills Complaint at 15; FDVS Complaint at 12.
4  See Motion for Dismissal of Mills Fleet Farm, Inc. and for  an 
Award  of  Attorney's  Fees,   filed  March  13,  2003   (``Mills 
Motion'').
5  See Motion to Dismiss Formal  Complaint, filed by FDVS on  May 
28, 2003 (``FDVS Motion'').
6  Mills Complaint at 5, 6; FDVS Complaint at 4, 5.
7  Mills Motion at 2-3.
8  See FDVS Motion at 1.
9  See FDVS Motion, Affidavit of Teri Ring, at 2.
10  Id.
11  Mills Motion at 3-7.
12  See Id., Exhibit A.
13  Mills Complaint at 12.
14  Id. at 7.
15 See Staton's Opposition to  Motion for Dismissal, filed  March 
25, 2003 (``Mills Opposition'').   Under Section 1.727(e) of  the 
Commission's rules,  an  opposition to  a  motion must  be  filed 
within five business days of the filing of the motion.  47 C.F.R. 
 1.727(e).  Therefore, Staton's Opposition was not timely filed.  
Under  the  circumstances  here,  however,  we  will  nonetheless 
consider Staton's Opposition.
16  Mills Opposition at 2.
17 See Letter from Robert J. Miller, counsel for Staton Holdings, 
Inc., to  Colleen Heitkamp,  Chief, Telecommunications  Consumers 
Division, Federal Communications Commission, dated April 14, 2003 
(``April 14 Letter'').
18  See FDVS Motion at 2-8.
19  See  Staton's Opposition  to the  Motion for  Dismiss  Formal 
Complaint, filed June 2, 2003 (``FDVS Opposition'').  
20  FDVS Opposition at 2.
21  Id. at 3.
22  Id. at 7.
23 47 U.S.C.  208(a).
24 47 C.F.R.  1.720(b).
25 47 C.F.R.  1.721(a)(4).
26 Mills Complaint at 3.
27 Mills Opposition at 2.
28  Id.
29  See April 14 Letter.
30  FDVS Complaint at 3.
31  Id.
32  FDVS Opposition at 2.
33  Id. at 3.
34 Multimedia Cablevision,  Inc. v.  Southwestern Bell  Telephone 
Co., Memorandum Opinion and Hearing Designation Order, 11 FCC Rcd 
11202, 11208 (1996);  Comark Cable Fund  III, Memorandum  Opinion 
and Order and  Notice of Apparent  Liability for Forfeiture,  100 
FCC 2d 1244, 1257, para. 31 n.51 (1985).