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

In the Matter of                  )
                                 )
Bruce Gilmore, Claudia McGuire,   )
The Great Frame Up Systems,       )
Inc., and Pesger, Inc., d/b/a     )
The Great Frame Up,               )
                                 )
    Complainants,                 )
                                 )   File No. EB-02-TC-F-006
v.                                )
                                 )
Southwestern Bell Mobile          )
Systems, L.L.C., d/b/a Cingular   )
Wireless,                         )
                                 )
    Defendants.                   )
                                 )


                MEMORANDUM OPINION AND ORDER

Adopted:  September 1, 2005                                  
Released:  September 2, 2005


By the Commission:

I.   INTRODUCTION

     1.   In  this Order,  based  on the  specific facts  at 
issue  here,  we deny  a  formal  complaint filed  by  Bruce 
Gilmore, Claudia McGuire, The  Great Frame Up Systems, Inc., 
and Pesger,  Inc., d/b/a The Great  Frame Up, (Complainants) 
against  Southwestern  Bell  Mobile Systems,  L.L.C.,  d/b/a 
Cingular Wireless (Cingular), pursuant to section 208 of the 
Communications  Act   of  1934,   as  amended   (the  Act).1  
Complainants    allege     that    Cingular's    ``Corporate 
Administrative  Fee''  (Fee),   which  Cingular  charges  to 
corporate   account  wireless   customers,  is   unjust  and 
unreasonable  in violation  of  section 201(b)  of the  Act2 
because: (1) the amount of the Fee is not reasonably related 
to  unique  or  increased corporate  account  administrative 
costs;  and (2)  the Fee  is the  product of  misleading and 
deceptive  marketing  and billing  practices.   Complainants 
additionally  allege  that  the  Fee  is  discriminatory  in 
violation of section 202(a) of  the Act3 because the Fee is: 
(1) charged only to  certain corporate account customers and 
not to other customers; and (2) not charged to non-corporate 
account customers  who receive similar  administrative goods 
and services.   Based on our  review of the record,  we find 
that  Complainants   have  not  established   that  Cingular 
violated  sections  201(b) or  202(a)  of  the Act,  and  we 
therefore deny the formal complaint.

     2.   We note  that at the  time of the events  at issue 
Cingular  was not  subject  to  our Truth-in-Billing  Rules.  
Subsequently  the Commission  extended these  rules to  CMRS 
carriers  like Cingular.4   This case  is therefore  decided 
under a  different regulatory  environment than  now exists.  
Accordingly, the  outcome of cases  like this in  the future 
could be different.  

II.  BACKGROUND

     A.   Factual Background

     3.   In  March  1995,  Cingular  announced  in  billing 
inserts sent  to corporate wireless customers  that it would 
begin   charging  them   a  corporate   administrative  fee.  
Cingular began  charging the $1.50  Fee in April  1995.5  In 
February  1998,  Cingular  announced   that  the  Fee  would 
increase to $2.95, and in March 1998 Cingular began charging 
$2.95 to corporate customers.6  

     4.   Complainant   Bruce  Gilmore   is  an   individual 
residing  in Woodstock,  Illinois.7  Mr.  Gilmore apparently 
opened a corporate account in 1993, which continued in force 
until  at  least  March  2001.8   In  1995,  Cingular  began 
assessing  the Fee  for  the 1993  account, after  providing 
notice to Mr. Gilmore in  the March 1995 billing insert, and 
Mr. Gilmore paid the Fee.  He remains a Cingular customer to 
this day.9

     5.   Complainant  Claudia  McGuire  is  a  resident  of 
Chicago who contracted with  Cingular for cellular telephone 
service in  March or  April of  1995.10  Ms.  McGuire agreed 
initially to a two-year contract,  but she continued in that 
rate plan beyond the initial term of the contract until July 
1997, when she lost her  phone and terminated her service.11  
Cingular provided  Ms. McGuire  notice of  the Fee  in April 
1995 in her first monthly  bill.12  Ms. McGuire paid the Fee 
for  each  month  that  she   was  a  customer,  except  for 
approximately $40  that was  written off  when she  lost her 
phone and terminated her service.13

     6.   Complainant  The  Great  Frame  Up  Systems,  Inc. 
(Systems) is a Delaware corporation, currently headquartered 
in Houston, Texas.  In  December of 1994, Systems contracted 
with Cingular for corporate cellular service that it used in 
its  seven   Chicago  stores.14    Systems'   December  1994 
corporate account was initiated  as a two-year contract, but 
Systems  continued in  at least  one corporate  account rate 
plan beyond the initial term of the contract, until at least 
April 2000.15   Cingular provided Systems notice  of the Fee 
in  a March  1995 billing  insert.  The  parties agree  that 
Systems  paid the  Fee each  month from  approximately April 
1995 until April 27, 2000.16   Systems remains a customer of 
Cingular to this day.17

     7.   The   record   reflects  that   each   Complainant 
apparently  signed  a  contract   with  Cingular,  prior  to 
initiation  of  the  Fee, that  contemplated  imposition  of 
additional charges  such as the Fee.   The relevant contract 
language provides that:

          Company can modify or amend this Agreement at 
          any time by sending Customer a written notice 
          in  the  monthly   bill  or  separately.   If 
          Customer does  not agree to the  changes made 
          to  this  Agreement,   Customer  must  notify 
          Company to cancel  Service within thirty (30) 
          days and pay all  charges owed to the Company 
          otherwise   Customer  will   be  conclusively 
          deemed   to  have   agreed  to   the  changes 
          described  in the  notice.  Such  changes may 
          include,    without     limitation,    rates, 
          prime/non-prime periods,  deposits, rate plan 
          availability, billing practices, late charges 
          and any and all other terms and conditions of 
          this Agreement.18

          B.   Procedural History

     8.   On  March  19,   2001,  Complainants  filed  their 
initial complaint  in Illinois  state court  on behalf  of a 
putative  class of  corporate  cellular  customers who  were 
charged  a  Corporate   Administrative  Fee  by  Cingular.19  
Complainants' initial  complaint sought relief on  breach of 
contract, unjust enrichment, common law fraud, and statutory 
fraud  grounds.20   It  was  amended after  removal  to  the 
Federal  District   Court  for  the  Northern   District  of 
Illinois, and was based upon  alleged violations of the Act, 
violations  of the  Illinois  Consumer  Fraud and  Deceptive 
Business Practices  Act, and common law  fraud.21  Leave was 
granted to file a second  amended complaint that again cited 
the Act but dropped the  references to a breach of contract, 
fraud,  or  deception.22   On  July 25,  2002,  the  Federal 
District  Court   dismissed  the  case   without  prejudice, 
referring the Act-related issues to the Commission under the 
doctrine of primary  jurisdiction and retaining jurisdiction 
to resolve any remaining issues, including damages, once the 
Commission ruled on liability.23   This formal complaint was 
filed on May 28, 2003.24 

III.       DISCUSSION

     9.   As described  above, the current  complaint before 
the Commission  alleges both  that Cingular's Fee  is unjust 
and unreasonable in  violation of section 201(b)  of the Act 
and that the  Fee is discriminatory in  violation of section 
202(a) of  the Act.25  For  the reasons discussed  below, we 
disagree with  Complainants and conclude that  they have not 
demonstrated  that  Cingular  violated  sections  201(b)  or 
202(a) of the Act.

     III.A.    Section 201(b) Allegations

     10.  Under section  201(b) of  the Act,  ``all charges, 
practices,  classifications  and   regulations  for  and  in 
connection with'' communications  services offered by common 
carriers must  be just and reasonable.26   Complainants make 
two  arguments in  support  of their  claim that  Cingular's 
assessment of  the Fee violates  section 201(b) of  the Act.  
First, Complainants  contend that  the Fee  violates section 
201(b) because it is not  cost-based but rather designed for 
the sole  purpose of  raising revenues without  appearing to 
raise rates.27  Second, Complainants contend that the Fee is 
misleading  and deceptive  in violation  of section  201(b).  
Cingular denies these allegations.   It is well settled that 
the burden  of pleading and  proving a violation  of section 
201 of the Act is on the complainant.28

          1.   Application of the Three-Part White Test

               11.  In  the  Second Truth-in-Billing  Order, 
the  Commission  extended   its  truth-in-billing  rules  to 
wireless  carriers.   The  instant proceeding,  however,  is 
governed by precedent that existed  prior to the adoption of 
the Second Truth-in-Billing Order.  Cingular defends against 
Complainants' cost-based  arguments by asserting that,  as a 
provider  of  CMRS services  in  a  competitive market,  its 
surcharge is lawful under Commission precedent that governed 
at the time the complaint  was filed.  Based upon this prior 
precedent,  and  the  specific evidence  submitted  in  this 
matter by  the parties,  we agree with  Cingular's position.  
Under  the applicable  precedent,  the Commission  considers 
three  factors in  determining whether  a CMRS  provider has 
violated section 201(b) of the  Act: (1) the relationship of 
carrier  costs   to  billing   charges  or   practices;  (2) 
consumers' expectations based  on their wireline experience; 
and   (3)  the   role   of   competitive  markets.29    Both 
Complainants and Defendant agree  that the factors set forth 
in White are controlling in this proceeding.30 

     12.  We now consider the first  prong of the White test 
and analyze the practice at issue ``in terms of whether [it] 
reasonably  reflect[s]   a  carrier's  cost  .   .  .  .''31  
Complainants assert that the sole  purpose of the Fee was to 
increase revenue  and that  the fee  was unrelated  to costs 
borne  by   Cingular  for  providing  service   to  business 
customers.32  In response, Cingular  argues that there was a 
sufficient  relationship between  the Fee  and its  costs to 
satisfy the White test.  Specifically, Cingular argues:

          The documents and deposition testimony in the 
          case  establish that  a  variety of  services 
          were provided to corporate account customers.  
          The Fee was imposed as an attempt to defray a 
          portion  of the  costs  of providing  various 
          services to corporate customers.33

     13.  We  conclude  that  Complainants  have  failed  to 
demonstrate the Fee is  not reasonably related to Cingular's 
costs under the first prong of the White test.  As discussed 
in  paragraph 24  below,  Cingular offered  services to  its 
corporate customers  to which individual customers  were not 
entitled.   There is  testimonial evidence  that there  were 
additional costs  associated with these  special services.34  
Complainants have provided  no persuasive, specific evidence 
that Cingular's  Fee was  not ``reasonably related''  to the 
additional costs for providing  these additional services to 
business  customers.   Absent  such specific  evidence,  and 
given that it is undisputed that additional services were in 
fact provided, we must conclude  that the first prong of the 
White test is satisfied.  

     14.  The  second  prong  of  the  White  test  concerns 
consumer  expectations based  on their  wireline experience.  
The  contracts  at   issue  specifically  contemplated  rate 
increases  and  changes  in  the  terms  and  conditions  of 
service.35   Importantly,  customers  also  were  given  the 
opportunity to cancel  service if they wished to  do so upon 
being informed of  the new charge.36  We note  that there is 
no evidence that Cingular charged  customers a fee for early 
termination based  on the  customers' decision  to terminate 
due to imposition of the Fee.  Given these circumstances, we 
conclude  that  the  second  prong  of  the  White  test  is 
satisfied.

     15.  The  third prong  of the  White test  concerns the 
role of  competitive markets.   In Chicago,  where Defendant 
was  providing corporate  cellular service  to Complainants, 
the parties  stipulated that at least  three other companies 
were  providing  similar services  when  the  Fee was  first 
assessed  in 1995.37   The parties  also stipulated  that in 
1996  and   1997,  three   more  companies   began  offering 
competitive  services in  the Chicago  area.38  Given  these 
stipulations, we find that there  were three to six carriers 
throughout the  period at issue  in the relevant  market for 
the relevant services and that the market was competitive.

     16.  As stated above, the  complainant bears the burden 
of  proof in  a complaint  proceeding.  Based  on the  above 
facts and  Commission precedent,  we find  that Complainants 
have not met their burden of  proving that: (1) there was no 
reasonable  relationship  between  the  Fee  and  Cingular's 
costs; (2) the  Fee was not reasonable in  light of consumer 
expectation; and  (3) there was insufficient  competition in 
the   Chicago-area   market   to  allow   Complainants   the 
opportunity  to select  another CMRS  provider if  they were 
unhappy  with Cingular's  service.  Accordingly,  based upon 
the  three-prong test  in White,  we find  that Complainants 
have   not    established   that    Cingular's   ``Corporate 
Administrative Fee'' violates section 201(b) of the Act.

          2.   Misleading Nature of the Fee

     17.  Complainants  also  argue  that  the  Fee  is  the 
product of  misleading and  deceptive marketing  and billing 
practices  that: (1)  disguised the  fact that  the Fee  was 
really a rate  increase rather than a  legitimate charge for 
unique  and  additional   corporate  account  administrative 
services;  (2)  hid  the Fee  in  such  a  way as  to  avoid 
detection   and   minimize   scrutiny;  and   (3)   hindered 
competition by making it  difficult for customers to compare 
their rates with those of their competitors. 39

     18.  Based  on  the  circumstances   at  the  time,  we 
disagree.  First,  as noted above, Cingular  was exempt from 
the  Truth-in-Billing rules  at the  time of  the events  in 
question.40  Further, Complainants incorrectly interpret the 
Commission's prior precedent with regard to section 201(b)'s 
prohibition  against  deceptive  and  misleading  practices.  
While  the  Truth-in-Billing  rules  cited  by  Complainants 
highlights the  Commission's commitment  to ensure  that all 
consumers are provided with  the basic information they need 
to make informed choices in a competitive telecommunications 
marketplace,41 nothing in the record indicates that Cingular 
withheld  the  type  of   basic  information  necessary  for 
consumers to  make an educated decision  about their service 
provider. 42   

     19.  Nor  did Cingular's  actions amount  to false  and 
deceptive practices.  Cingular did not hide the Fee in small 
print  or describe  the  Fee  in a  way  that would  mislead 
customers as to the overall  amount or general nature of the 
Fee  as a  surcharge.  Nor  did it  attempt to  disguise the 
charge  as  a  mandatory   regulatory  fee,  a  concern  the 
Commission addressed in the Second Truth-in-Billing Order.43  
Rather, Cingular  displayed the  Fee in the  ``Other Charges 
and Credits'' section  of the bill to  notify customers that 
the Fee  is a flat charge  per line that does  not fluctuate 
depending  on the  number of  minutes of  airtime used  in a 
month.  Moreover, Cingular notified  the Complainants of the 
Fee as  required by the  contracts.44  There is  no evidence 
that  Cingular's description  of  the Fee  as a  ``corporate 
administrative fee'' was incorrect.  The record demonstrates 
that corporate  customers received additional  services, and 
that  the   costs  of  administering  those   services  were 
increasing  over  time,  as  acknowledged  by  Complainants' 
primary witness.45

     20.  We might  reach a different conclusion  based upon 
different factual circumstances.  For  example, if a carrier 
imposes a ``corporate administrative  fee'' but there are no 
additional services that  corporate customers receive beyond 
the   services  that   other   customers   receive,  or   if 
complainants  demonstrated  that   the  cost  of  additional 
"corporate administrative" services was so small in relation 
to the  new charge that  the charge could not  be reasonably 
called  a "corporate  administrative fee,"  we would  likely 
find such a  fee to be misleading.  Similarly, if  a fee was 
described as  being federally-mandated  when in fact  it was 
not,  this  too  might  lead   us  to  a  different  result.  
Complainants  have  not  demonstrated   that  any  of  these 
situations  are present  here,  however.   We  note that  in 
circumstances where  complainants do not have  access to the 
information needed  to make  such a demonstration,  they may 
petition the  FCC to  compel the  licensee to  disclose such 
information.

     21.  We  find  that,  under  the facts  of  this  case, 
Complainants have failed to prove that Cingular's assessment 
of the fee was a misleading or deceptive billing practice.46  
Accordingly,   we  conclude   that  Complainants   have  not 
established that Cingular's  marketing and billing practices 
associated with the Fee violated section 201(b).  

     22.  We  do note,  however,  that  in the  Commission's 
recent decision to apply  the truth-in-billing rules to CMRS 
providers,  it  stated  its  ongoing  interest  in  allowing 
consumers  to  better   understand  their  telephone  bills, 
compare  service  offerings,  and  thereby  promote  a  more 
efficient  competitive  marketplace.47   At that  time,  the 
Commission also reiterated that "[t]he proper functioning of 
competitive markets is predicated on consumers having access 
to accurate,  meaningful information  in a format  that they 
can  understand.''48   As touched  on  above,  this case  is 
decided under  a different  regulatory environment  than the 
one that now is in place.49  Unless consumers are adequately 
informed about the service choices available to them and are 
able to  make reasonable  price comparisons  between service 
offerings,  they  are  unlikely  to be  able  to  take  full 
advantage of the benefits of competitive forces.

     B.   Section 202(a) Allegations

     23.  Complainants   also  allege   that   the  Fee   is 
discriminatory  in  violation  of  section 202  of  the  Act 
because:  (1)  it  was  imposed only  on  corporate  account 
customers and  not on similarly situated  individual account 
customers; and (2)  it was not imposed  on corporate account 
customers who  called Cingular  about the imposition  of the 
Fee.50

          1.   Fee Imposed Only on Corporate Customers

     24.  Section 202(a)  of the  Act makes it  unlawful for 
any common carrier to  discriminate unjustly or unreasonably 
among customers  in its  provision of  ``like communications 
service.''51   In determining  whether a  CMRS provider  has 
violated section 202(a) of the Act, the Commission applies a 
three-step inquiry:  (1) whether  the services at  issue are 
``like''; (2) if they are,  whether there are differences in 
the terms and conditions pursuant  to which the services are 
provided;  and  (3)  if  so,  whether  the  differences  are 
reasonable.52  Complainants have  the burden of establishing 
the first two components of the test, after which the burden 
switches   to  the   Defendant  to   demonstrate  that   any 
discrimination is reasonable.53

     25.  In  the  instant  case, Complainants  allege  that 
corporate  customers receive  the same  administrative goods 
and services  that are  provided to  non-corporate customers 
yet the Fee  is assessed only on  corporate customers.54  In 
addition,  Complainants contend  that Cingular's  records do 
not indicate  that it incurred more  corporate account costs 
than  non-corporate   account  costs.55   We  do   not  find 
Complainants' assertions persuasive.  In determining whether 
services are ``like'' for purposes  of section 202(a) of the 
Act, the  Commission must determine whether  the services in 
question  are ``functionally  equivalent.''56  An  important 
aspect of the  test relies upon customer  perception to help 
determine whether  the services  being compared  provide the 
same or equivalent functions.57   We  find that there were a 
number  of differences  between plans  offered to  corporate 
customers  and  those   offered  to  residential  customers, 
including different rate  packages with different associated 
customer services.58   For instance, Cingular  explains that 
it  traveled  to  the  business location  of  the  corporate 
account customer and brought  necessary equipment to make it 
easier  to sign  up employees.59   Corporate customers  also 
received features  such as call waiting  and call forwarding 
as  part  of  their   rate  plans  for  which  non-corporate 
customers  were assessed  separate charges.60   Furthermore, 
corporate account customers received a specialized corporate 
account  newsletter and  were  eligible  for an  in-building 
wireless  system that  allowed them  to use  cellular phones 
inside the building.61  These packages were clearly tailored 
to  the   specific  needs  and  expectations   of  corporate 
customers.   Furthermore,  each  contract  was  individually 
negotiated, which, under existing case law, often prevents a 
finding  of  ``likeness.''62   We therefore  find  that  the 
services being compared by Complainants are not ``like'' for 
purposes of section 202(a) of the Act and deny Complainants' 
allegations.

          2.   Waiver of Fee

     26.  Complainants further argue  that Cingular's Fee is 
discriminatory  because  Cingular  removed the  charge  from 
certain corporate customers' accounts  after they called and 
complained about the Fee.63   Under the Commission's holding 
in Orloff,  which was  affirmed by the  DC Circuit  Court of 
Appeals,  this argument  fails.  In  Orloff, the  Commission 
found it  reasonable for  a customer  to negotiate  a better 
deal  with  a  wireless  carrier  where  no  market  failure 
prevented a  customer from  switching carriers if  they were 
dissatisfied.64   According  to Defendant,  it  occasionally 
waived the Fee for customers who complained about it, but as 
Cingular argues, this was an individualized negotiation that 
it was willing to entertain  without any guarantees that the 
Fee  would be  waived or  that the  customer would  remain a 
Cingular customer.65  We therefore  find that by waiving the 
Fee in  certain instances, Cingular did  not violate section 
202(a) of the Act.

IV.  ORDERING CLAUSE

     27.  Accordingly, IT  IS ORDERED, pursuant  to sections 
4(i), 4(j),  201(b), 202(a),  and 208 of  the Communications 
Act  of  1934, as  amended,  47  U.S.C.   154(i),  154(j), 
201(b), 202(a), and  208, that the Complaint  filed by Bruce 
Gilmore,  et al.,  is  DENIED and  that  this proceeding  IS 
TERMINATED as of the Release Date of this Order.

                              FEDERAL         COMMUNICATIONS 
COMMISSION


     

                              Marlene H. Dortch
                              Secretary
_________________________

147 U.S.C.  208.
2Id.  201(b).
3Id.  202(a).
4Truth-in-Billing  and  Billing  Format, Second  Report  and 
Order,  Declaratory Ruling,  and  Second  Further Notice  of 
Proposed Rulemaking, 20 FCC Rcd 6448 (2005) (``Second Truth-
in-Billing Order'').
5See  Amended Joint  Statement  of  Stipulated and  Disputed 
Facts and Legal  Issues, filed July 25, 2003,  at 2-3 (Joint 
Statement).  
6Id. at 3. 
7Id.
8Parties  disagree about  who initially  took service  under 
this account.   See Complaint at  6; Answer at  2.  Cingular 
argues that  Mr. Gilmore took over  a previously established 
account,  and therefore  lacks standing  to act  as a  class 
representative.  For  purposes of  this proceeding,  we will 
interpret   the  facts   in  a   light  most   favorable  to 
Complainants  and  assume Mr.  Gilmore  was  the party  whom 
Cingular serviced under this account.
9See Joint Statement at 3.
10Id. at 4.
11Id.  
12See Answer at Ex. 7.
13See Joint Statement at 4.
14Id. at 5
15Id. at 6.
16Id.
17Id.
18See Complaint at Ex. 9.  See also Letter from Mr. Terrence 
Buehler,  Buehler Reed  & Williams,  to David  Hunt, Federal 
Communications   Commission,   (June   29,   2004).    While 
Complainants only provided the  Terms and Conditions for the 
Systems contract,  they do  not contend  that the  Terms and 
Conditions  in  the  other  contracts  differed  materially.  
Rather,  Complainants  acknowledge   that  all  the  pre-Fee 
contracts authorized  Cingular to modify or  amend the terms 
and conditions  ``by sending  customers a written  notice in 
the monthly bill or separately.''  Complaint at 9.
19Complaint at 3.
20See Gilmore  v. Southwestern Bell Mobile  Systems, L.L.C., 
Memorandum Opinion and Order, (Case No. 01 C 2900, N.D. Ill) 
(District Court Order).
21Id.
22Id.  The District Court Judge noted that ``[a]rguably, the 
second  amended  complaint  could   be  construed  as  still 
claiming  that   201  or  federal  common law  is  violated 
because of a contract breach, fraud, and/or deception.''  In 
response   to  defendant's   motion  to   dismiss,  however, 
``plaintiffs expressly state that their  201 claim does not 
rely on fraud, deception, or breach of contract, but instead 
relies  only on  the  direct contention  that  the rate  was 
unreasonable in light of the services being provided.''  Id.
23Id.  For purposes of clarity, the Commission notes that it 
is not permitted to  adjudicate complaints under section 208 
on a class  action basis.  See Halprin,  Temple, Goodman and 
Sugrue v.  MCI Telecommunications Corp.,  Memorandum Opinion 
and Order,  13 FCC  Rcd 22568, 22581,   29  (1998) (``class 
action lawsuits are neither  contemplated by, nor consistent 
with,  the  private  remedies  created  under  sections  206 
through 209 of the Act''). 
24Service  was originally  attempted by  hand delivery  upon 
Mellon Bank in Pittsburgh on May 16, 2003, but was initially 
refused.  Service was subsequently  effected on May 28, 2003 
by mail.  In the staff's Notice of Formal Complaint, sent to 
the parties on May 29, 2003,  we accepted the May 28 date as 
the  formal  filing  date  and   based  the  timing  of  all 
subsequent pleadings and filings on that date.
25See Complaint  at 18,  19.  Complainants concede  that the 
fraud  and  breach  of   contract  counts  included  in  the 
Complaint are  barred because  the Commission does  not have 
jurisdiction to  resolve common  law causes of  action.  See 
Complainants'  Reply to  Defendant's Answer  and Affirmative 
Defenses to Complainants' Complaint,  filed June 24, 2003 at 
8 (Complainants' Reply).
2647 U.S.C.  201(b).   Persons  engaged in the provision of 
CMRS are treated as common  carriers under the Act.  See id. 
 332(c)(1)(A).
27See Complaint at 10, 25, 26.
28See Sprint Communications Co., L.P. v. MCI Communications, 
Inc., Memorandum Opinion and Order, 15 FCC Rcd 14027, 14029, 
(2000); American Message  Centers v. FCC, 50  F.3d 35, 40-41 
(D.C.Cir. 1995).  
29See Petition for Declaratory Ruling on Issues Contained in 
Count I of White v. GTE, 16 FCC Rcd 11558 (2001) (White).
30See Answer at 37; Complaint at 23.
31See White, 16 FCC Rcd at 11561.
32See Complaint at 10.
33Answer at  39.  Cingular goes  on to describe some  of the 
specialized  services corporate  customers receive  to which 
individual customers are not  entitled, such as traveling to 
the  business  location  of the  corporate  client;  certain 
features such as call  waiting, call forwarding, voice-mail, 
three-way calling, and phone replacement were included free-
of-charge as part  of the rate plan; and  being eligible for 
an in-building  wireless system  which allowed  customers to 
use cellular  phone inside  the building.   Id. at  40.  See 
also Complaint at Ex. 20.
34See Answer, Ex. 4.
35See paragraph 7, supra.
36See, e.g., Complaint, Ex. 12.
37See Joint Statement at 3.
38Id.
39Complaint at 18.
40Truth-in-Billing  and  Billing  Format, First  Report  and 
Order and Further Notice of  Proposed Rulemaking, 14 FCC Rcd 
7492, 7502 (1999) (First Truth-in-Billing Order).
41Complaint at 33.
42Although CMRS  carriers were exempt from  the requirements 
of the  Truth-in-Billing rules, Complainants  correctly note 
that the Commission intended  the ``broad principles adopted 
to    promote    truth-in-billing    to   apply    to    all 
telecommunications carriers,  both wireline  and wireless.''  
See Complaint at n. 31 (citing First Truth-in-Billing Order, 
14  FCC  Rcd  at  7501  and n.32).   For  that  reason,  the 
Commission  emphasized that  its decision  in the  Truth-in-
Billing  proceeding  in no  way  lessened  a CMRS  carrier's 
obligations under section 201(b).  Id.
43See Second Truth-in-Billing Order.
44See  Answer  at  42,  43  (citing Exs.  6,  7);  see  also 
Complaint, Ex. 14; paragraph  6, supra.  As explained supra, 
Cingular notified Gilmore and Systems  of the Fee by billing 
inserts in  March 1995.  It  is unclear whether  Ms. McGuire 
received a billing insert in March 1995, because she appears 
to have signed  her contract that month.   She did, however, 
receive notice  of the  imposition of the  Fee in  her first 
monthly  bill  in  April  1995.  See  Complaint  at  Ex.  7.  
Complainants do not argue, however, that Ms. McGuire did not 
receive  adequate  notice  because  of  this  timing  issue.  
Absent further  evidence suggesting that this  was the case, 
we  will  assume that  she  knew  of  the new  charges  upon 
initiating service
45See Answer at Ex. 4.
46Complainants  also  argue  that  mislabeling  the  Fee  is 
actionably deceptive  because it  is designed  to manipulate 
customers'  contractual  right  to terminate  their  service 
agreements.   See  Complaint  at   37,  38.    The  evidence 
provided  by   Complainants  to  support   this  contention, 
however, is  not persuasive.  Complainants contend  that the 
service  agreements permit  modifications  or amendments  by 
Defendant only ``by sending customer a written notice in the 
monthly  bill  or  separately.''   Id. at  37.   Absent  the 
written  notice,  Complainants   argue,  customers  are  not 
permitted to cancel their  contracts prior to the expiration 
of  the specified  term.  Id.  at 38.   Given the  fact that 
Cingular did  notify Complainants by  bill insert or  in the 
bill itself,  we do not  understand how Cingular in  any way 
prevented customers from  exercising their contractual right 
to terminate service.  See paragraph 3, supra.
47Second Truth-in-Billing Order at 6450.
48Id.
49See para 2, supra.
50See Complaint at 18, 19.
5147 U.S.C.  202(a) (``It  shall be unlawful for any common 
carrier to make any unjust or unreasonable discrimination in 
charges,     practices,    classifications,     regulations, 
facilities,  or  services for  or  in  connection with  like 
communication service....'').
52See Orloff  v. Vodafone  Airtouch, 17  FCC Rcd  8987, 8994 
(2002) (Orloff);  aff'd, Orloff v.  FCC, 352 F.3d  415 (D.C. 
Cir. 2003), cert. denied, 124 S.Ct. 2907 (2004).
53Id.
54See Complaint at 18, 19, 38.  Complainants allege that all 
customers  had  access  to   similar  calling  services  and 
features, and that all customers  were billed in writing and 
had someone to call in  case of questions. See Complainants' 
Reply at 28.    
55See  Plaintiffs'  Supplemental Memorandum  and  Additional 
Proposed Findings, filed Aug. 29, 2004 at 5.
56See Cellexis  International, Inc., v. Bell  Atlantic Nynex 
Mobile Systems, Inc., et al, 16 FCC Rcd 22887, 22892 (2001).
57Id.  (citing Beehive  Telephone,  Inc.  v. Bell  Operating 
Companies, 10 FCC Rcd 10562, 10567 (1995)).
58See Answer at 40 (citing Morrison Deposition, Ex. 2).
59Id.
60Id.
61Id.
62See Competitive Telecommunications Ass'n  v. FCC, 998 F.2d 
1058, 1063 (D.C. Cir. 1993).
63See Complaint at 18, 19.
64See Orloff, 17 FCC Rcd at 8996.
65See Answer at 44, 45.