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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Bright House Networks, LLC, et al., )
Complainants, ) File No. EB-08-MD-002
Verizon California, Inc., et al., )
MEMORANDUM OPINION AND ORDER
Adopted: June 20, 2008 Released: June 23, 2008
By the Commission: Commissioner McDowell issuing a statement; Chairman
Martin dissenting and issuing a statement.
1. In this Memorandum Opinion and Order, we reject the Enforcement
Bureau's April 11, 2008, Recommended Decision in this Accelerated
Docket proceeding, and grant in part a formal complaint filed against
Defendants (collectively, "Verizon") pursuant to section 208 of the
Communications Act of 1934, as amended ("Act"). For the reasons
explained below, we conclude that Verizon is violating section 222(b)
of the Act by using, for customer retention marketing purposes,
proprietary information of other carriers that it receives in the
local number porting process, and we order Verizon immediately to
cease and desist from such unlawful conduct.
2. The Recommended Decision recommended that we (i) deny the Complaint's
claims under sections 222(b) and 222(a) of the Act (Counts I and II,
respectively); (ii) rule on the Complaint's claim under section 201(b)
of the Act in a separate, subsequent order; and (iii) initiate a
rulemaking regarding customer retention marketing practices.
Complainants filed comments challenging the Recommended Decision, and
Verizon filed comments supporting it. We have carefully reviewed the
Recommended Decision and are not persuaded by its reasoning.
Consequently, we reject its recommendations to deny Counts I and II of
the Complaint, and to defer decision on Count III. Instead, we grant
Count I, and dismiss Counts II and III without prejudice because it is
unnecessary to reach those two Counts. We will take under further
advisement the recommendation to initiate a rulemaking.
A. The Parties
3. Defendants are telecommunications carriers that operate as incumbent
local exchange carriers (incumbent "LECs") in a number of states.
Complainants Bright House Networks, LLC ("Bright House"), Comcast
Corporation ("Comcast"), and Time Warner Cable Inc. ("Time Warner")
(collectively, "Complainants") provide facilities-based voice services
to retail customers using Voice over Internet Protocol ("VoIP") in
competition with Verizon's local voice services. Complainants provide
those services by relying on wholesale competitive local exchange
carriers ("Competitive Carriers") to interconnect with incumbent LECs
and to provide transmission services, local number portability ("LNP")
functions, and other functionalities. Bright House and Comcast rely on
Competitive Carriers that are affiliated with them, while Time Warner
relies on Sprint Communications Company L.P. ("Sprint").
A. Local Number Portability and Verizon's Retention Marketing Program
4. The Communications Act requires local exchange carriers to provide
number portability, i.e., the ability to retain one's phone number
when switching from one telecommunications carrier to another. Thus,
when customers decide to switch voice service from Verizon to one of
the Complainants, they may choose to retain their telephone numbers.
Such a choice triggers an inter-carrier process -- developed mainly by
the industry -- by which the customer's telephone number is "ported"
from Verizon to the Complainant's Competitive Carrier.
5. The number porting process begins with the Competitive Carrier, at the
direction of a Complainant, submitting a "Local Service Request"
("LSR") to Verizon. The LSR serves as both a request to cancel the
customer's Verizon service and a request to port the customer's
telephone number to the Competitive Carrier. Under current industry
practices, the LSR includes at least the following information: the
identity of the submitting carrier; the date and time for the
disconnection of Verizon's retail service (and, by implication, the
date and time for the initiation of Complainant's service); the name
and location of the retail customer whose service is being switched;
the Verizon retail account number; and whether the port involves one
or more numbers. Thus, the LSR informs Verizon that, at a particular
date and time, the customer's telephone number is to be ported to the
Competitive Carrier, and the customer's existing Verizon voice service
is to be disconnected, so that the Complainant served by the
Competitive Carrier may initiate retail service using the customer's
existing telephone number. After submitting the LSR to Verizon, the
Complainant or Competitive Carrier sends the Number Portability
Administration Center ("NPAC") a "create message" that is used to
enter a pending subscription record with the necessary routing data
for the number to be ported.
6. Upon receiving the LSR, Verizon confirms that it contains sufficient
information to accomplish the port, and then creates an internal
service order, which it transmits to the appropriate downstream
Operations Support Systems. The transmittal of the internal service
order initiates several work steps for Verizon. First, Verizon's
automated systems send the Complainant or Competitive Carrier a Local
Service Request Confirmation (also known as a Firm Order Confirmation,
or "FOC") that contains information specific to the individual
request. In addition, Verizon creates a disconnect order scheduling a
retail service disconnect on the requested due date. Moreover, Verizon
establishes a "10-digit trigger" in the switch serving the retail
customer to prevent the misrouting of certain calls in the short
interval after the number has been ported but before disconnection of
the customer's Verizon retail service has been completed. Finally,
Verizon confirms the pending subscription record that the new provider
previously created in the NPAC database. Meanwhile, the Complainant
and/or Competitive Carrier perform any necessary work on their own
networks to turn up the customer's service.
7. Beginning around the summer of 2007, Verizon started a program of
retention marketing directed specifically at retail customers who are
in the midst of the carrier-changing/number-porting process just
described. The program's first step is generating -- on a frequent, if
not daily, basis -- a marketing "lead list" of Verizon customers to be
contacted by Verizon that is based on the LSRs explained above. To
generate the lead list, Verizon begins with the universe of customers
for whom there are retail-service disconnect orders pending, including
disconnect orders that were prompted by the submission of an LSR.
Verizon then eliminates from the lead list all those customers who are
not switching their phone service and porting their telephone numbers
from Verizon to a facilities-based service provider, such as
Complainants. Put differently, Verizon keeps on the lead list only
those customers who are switching their phone service and porting
their telephone numbers from Verizon to a facilities-based service
provider, such as Complainants. Verizon is able to carry out this
sifting because, inter alia, the disconnect orders stemming from the
Competitive Carriers' LSRs differ from all other disconnect orders.
Specifically, disconnect orders stemming from the Competitive
Carriers' LSRs contain "additional entries that are required to
facilitate the actual porting of the telephone number to the new
8. Upon completion of the lead list, Verizon immediately -- sometimes
within 24 hours of receiving the LSR -- contacts customers on the lead
list, by express mail, e-mail, and/or automated telephone message.
Those contacts encourage customers to remain with Verizon, offering
price incentives such as discounts and American Express reward cards.
Verizon conducts this marketing while the number-porting request is
still pending, i.e., before the new provider (such as Complainants)
has established service to the customer.
9. If Verizon is successful in persuading a customer to cancel his or her
order with the new service provider, Verizon cancels the internal
service order relating to the port request, and Verizon's systems
issue a "jeopardy notice" to the provider that submitted the port
request. Verizon also puts the new provider's port request "into
conflict" by sending a conflict code to NPAC. That conflict code
cannot be overridden by the new provider. If the new service provider
persuades the customer to switch after all, it can either seek
resolution of the conflict code or, what is much more common, submit a
A. The Complaint
10. On February 11, 2008, Complainants filed the Complaint alleging, inter
alia, that the Verizon customer retention marketing practices
described above violate section 222(b) of the Act. Complainants seek
an order enjoining Verizon from continuing such customer retention
marketing. Complainants also seek an award of damages, but defer that
determination to a separate, subsequent proceeding pursuant to section
1.722(d) of the Commission's rules. Thus, this Order addresses only
the question of Verizon's alleged liability.
III. LEGAL ANALYSIS
11. Section 222(b) provides that "[a] telecommunications carrier that
receives or obtains proprietary information from another carrier for
purposes of providing any telecommunications service shall use such
information only for such purpose, and shall not use such information
for its own marketing efforts." Thus, a telecommunications carrier
violates section 222(b) when it (a) receives or obtains proprietary
information; (b) from another carrier; (c) for purposes of providing
any telecommunications service; and (d) fails to use such information
"only" for such purpose, or uses the information "for its own
marketing efforts." For the reasons discussed below, we find that
Verizon's retention marketing program violates section 222(b) of the
Act. Specifically, we find that Verizon, a telecommunications carrier,
receives proprietary information from the Competitive Carriers; that
this information is contained in number porting requests that were
submitted for the purpose of the Competitive Carriers providing
telecommunications service to the Complainants, and for the purpose of
Verizon providing telecommunications service to the Competitive
Carriers; and that Verizon uses the proprietary information for its
own marketing efforts.
A. The LSRs Submitted by the Competitive Carriers to Verizon Contain
"Proprietary Information from Another Carrier" Within the Meaning of
12. As described above, when a Competitive Carrier, working in conjunction
with one of the Complainants, submits an LSR to Verizon, Verizon
receives advance notice that the Complainant (again, working in
conjunction with the Competitive Carrier) will supplant Verizon as the
voice service provider to a particular customer on a particular date.
Complainants provide this highly sensitive information to their
competitor, Verizon, only because they must do so in order to serve
their newly-won customer properly. Specifically, Complainants have no
choice but to provide this information (via a Competitive Carrier) to
Verizon in order to effectuate a number port in accordance with
13. The Commission has already found that advance notice of a carrier
change that one carrier is required to submit to another is carrier
"proprietary information" under section 222(b). These rulings stem
from the inherently sensitive nature of the information itself and
from a concern that carriers not unfairly exploit such information
received in advance through necessary carrier-to-carrier interactions.
As the Commission has observed, "competition is harmed if any carrier
uses carrier-to-carrier information . . . to trigger retention
marketing campaigns, and [we] consequently prohibit such actions
accordingly." Therefore, under Commission precedent, the carrier
change information that the Competitive Carriers must submit to
Verizon in the LSRs is plainly "proprietary" within the meaning of
14. Verizon proffers several arguments for concluding that the foregoing
Commission precedent does not apply to the information at issue here.
As explained below, all of those arguments lack merit.
15. First, in Verizon's view, the information that the Competitive
Carriers submit to Verizon in an LSR is actually Verizon's
information, not another carrier's. Specifically, according to
Verizon, the fact that its own customer has cancelled his or her
retail Verizon voice service on a certain date is information that
Verizon, as the current retail carrier, requires to carry out the last
portion of its retail service -- timely disconnection. This argument
distorts the nature of the information contained in the LSRs. Although
the LSR does contain information that Verizon needs to disconnect a
customer, it also contains additional, highly sensitive competitive
information that is independent of the mechanics of disconnection.
Specifically, the LSR discloses in advance that a competing carrier
has convinced a particular Verizon customer to switch to the competing
carrier's voice service on a particular date. This is the information
that is proprietary. Significantly, even Verizon does not dispute that
information on the LSR revealing the identity of the new carrier is
proprietary information. And, as explained in more detail later, it
is precisely that information - i.e., the fact that a retail customer
has chosen not only to disconnect Verizon service but also to switch
to a competitor on a particular date - that Verizon employs in its
retention marketing program.
16. Verizon also argues that the carrier-change information in the LSR is
the customer's information, and the Competitive Carrier is merely
conveying that information as the customer's agent. We disagree. It is
true that a Verizon retail customer has every right to contact Verizon
directly to state that she intends to switch to a Complainant's voice
service. Indeed, the Commission has already recognized that truth and
held that, if a customer makes such a contact, the carrier-change
information conveyed by the customer to Verizon is not "proprietary"
within the meaning of section 222(b) and may be used to engage in
retention marketing. In the absence of such a direct customer
contact, however, the carrier-change information conveyed in
carrier-to-carrier communications remains proprietary. Moreover,
labeling the Complainant (or Competitive Carrier) as merely the
"agent" of the customer is misleading. By transmitting the information
in the LSR, the Competitive Carrier is certainly acting to help
effectuate the customer's choice of carrier, but it is also acting to
promote its own commercial interests, which requires conveying its own
proprietary information. Verizon's agency theory also conflicts with
the approach the Commission has taken in applying section 222(b) in
the slamming context. Just as in the context of a number porting
request, a customer can effect a change of carrier by authorizing the
new carrier to make the change request on the customer's behalf.
Nevertheless, the Commission banned the use of carrier change requests
for marketing purposes as inconsistent with section 222(b). By
Verizon's reasoning, a carrier submitting a carrier change request on
behalf of a customer would seemingly be acting only as the customer's
agent, and the marketing ban would not apply. That was clearly not the
approach taken by the Commission.
17. Verizon further contends that the LSRs do not convey proprietary
information "from another carrier" within the meaning of section
222(b), because Complainants are not "telecommunications carriers."
Verizon's contention lacks merit, even assuming, arguendo, that (i)
the statute's reference to "carrier" means "telecommunications
carrier"; (ii) Complainants are not "telecommunications carriers;" and
(iii) the "proprietary information" must concern the carrier who
conveys it. Due to the closeness of the operational partnership
between Complainants and their respective Competitive Carriers, we
hold that information regarding a Verizon customer's decision to
switch from Verizon to a Complainant is as proprietary to the
Competitive Carrier as it is to the Complainant. Moreover, as
explained below, the Competitive Carriers are "telecommunications
carriers" under section 222(b). Thus, when a Competitive Carrier
conveys carrier-change information in an LSR to Verizon, Verizon is
receiving such information "from a carrier" under section 222(b).
18. In sum, for all of the foregoing reasons, the LSRs submitted by the
Competitive Carriers to Verizon contain "proprietary information from
another carrier" within the meaning of section 222(b).
B. When a Competitive Carrier Submits an LSR to Verizon, Verizon Receives
It "For Purposes of [the Competitive Carrier] Providing Telecommunications
Service" to a Complainant Within the Meaning of Section 222(b).
19. Section 222(b) prohibits a telecommunications carrier from using for
its own marketing efforts any proprietary information that it receives
from another carrier "for purposes of providing any telecommunications
service...." Section 222(b) does not expressly state whose provision
of telecommunications services is covered. Specifically, section
222(b) does not expressly state whether its marketing ban applies when
the receipt of proprietary information is for purposes of (i) the
submitting carrier (here, a Competitive Carrier) "providing any
telecommunications service," or (ii) the receiving carrier (here,
Verizon) "providing any telecommunications service," or (iii) either
the submitting carrier or the receiving carrier "providing any
20. The parties do not dispute that section 222(b) applies when the
receiving carrier provides telecommunications service. The issue here
is whether section 222(b) also applies when a telecommunications
carrier's receipt of proprietary information from another carrier is
for purposes of the submitting carrier providing telecommunications
services. For the following reasons, and consistent with Commission
precedent in a similar context, we conclude that section 222(b)'s
marketing ban applies in the latter situation as well.
21. Our conclusion rests on a reasonable construction of the statutory
language. Indeed, in addressing the meaning of section 222(b), the
Commission has already held that "information contained in a carrier
change request is by its very nature proprietary [and] ... may only be
used by the executing carrier to effectuate the provision of service
by the submitting carrier to its customer." Applied in the context of
this case, it is reasonable to read section 222(b) as stating that,
when Verizon "receives or obtains proprietary information from a
[Competitive Carrier] for purposes of [the Competitive Carrier]
providing any telecommunications service ... [, Verizon] shall use
such information only for such purpose [i.e., the Competitive Carrier
providing a telecommunications service], and shall not use such
information for its own marketing efforts."
22. Our conclusion is also compelled by the Commission's prior assessment
of the fundamental objective of section 222(b): to protect from
anti-competitive conduct carriers who, in order to provide
telecommunications services to their own customers, have no choice but
to reveal proprietary information to a competitor. To achieve that
objective, the Commission has repeatedly construed section 222(b) to
mean that, when a customer's current carrier obtains carrier-change
information from a competing carrier solely because of the current
carrier's existing relationship with the customer, the current carrier
may not use that information to attempt to disrupt the carrier change.
The existing carrier must remain "neutral," and not act as a
competitor, until the carrier change is completed and the new carrier
has begun providing telecommunications service. At bottom, the
Commission has focused on preventing the receiving carrier from
hindering the submitting carrier's ability to initiate its provision
of telecommunications service to its customers.
23. In accordance with our view of section 222(b)'s overriding goal, as
just described, we conclude that section 222(b)'s marketing ban
applies when a telecommunications carrier's receipt of proprietary
information from another carrier is for purposes of the submitting
carrier providing telecommunications service, and is not limited to
situations where the information is received for purposes of the
receiving carrier providing service. Otherwise, section 222(b)'s
protection could have irrational gaps, such as situations where the
receiving carrier provides no "telecommunications service" to the
24. Applying that construction of section 222(b) here, section 222(b)'s
requirements squarely encompass Verizon's retention marketing. In
order to initiate its provision of telecommunications service to a
Complainant to serve a particular new customer, the Competitive
Carrier has no choice but to notify Verizon of the customer's decision
to switch service from Verizon to the Complainant. Thus, as the
receiving carrier under section 222(b), Verizon may use that
carrier-change information only for purposes of helping effectuate the
initiation of the Competitive Carrier's (i.e., the submitting
carrier's) telecommunications service.
25. Verizon contends that, as a grammatical matter, the "purpose"
referenced twice in section 222(b) must concern only the receiving
carrier - and not the submitting carrier - providing
telecommunications service. Put differently, Verizon contends that
section 222(b) must be read to apply only when the receipt of
proprietary information is for purposes of the receiving carrier
providing telecommunications service. We disagree. As described above,
we find, consistent with the Commission's statements in the slamming
context, that the language of section 222(b) does not require such a
reading. The statutory language is reasonably susceptible of meaning
that the "purpose" includes the submitting carrier providing
telecommunications service. And that interpretation more
comprehensively achieves section 222(b)'s objectives, as previously
26. Verizon also asserts that the Commission has already construed section
222(b)'s marketing ban to apply only where, unlike here, the receiving
carrier is providing a wholesale telecommunications service to the
submitting carrier, such as resale or access. We see no such limiting
construction in any Commission order. When the Commission has referred
to the receiving carrier's "wholesale operations" or "wholesale
service" or "carrier-to-carrier service" and the like, it has done so
merely to identify the source of the carrier-change information as
something other than the receiving carrier's direct communications
with its retail customer; it has not done so to limit section 222(b)'s
scope to situations where the receiving carrier is providing a
wholesale "telecommunications service" to the submitting carrier.
27. Moreover, such a limiting construction would contravene what the
Commission has repeatedly described as a fundamental policy of the Act
- to promote facilities-based local competition. Specifically, if
Verizon's interpretation of the Commission's retention marketing
orders were correct, those orders would have prevented receiving
carriers from retention marketing against resellers and UNE
competitors, but allowed receiving carriers to retention market
against facilities-based competitors. Verizon has not proffered any
sensible basis for the Commission to have made such a distinction, and
we can discern none. Quite the contrary. While their number-port
requests are pending with a receiving carrier, facilities-based
carriers are just as vulnerable as resellers to any anti-competitive
conduct by the receiving carrier.
28. Finally, in Verizon's view, even assuming, arguendo, that section
222(b) generally applies when the submitting carrier is the one
"providing telecommunications service," section 222(b) does not apply
here, because the information contained in the LSRs does not relate to
the specific telecommunications services provided by the Competitive
Carriers to Complainants. We disagree. Verizon focuses only on the
services provided by the submitting carrier, but the language of
section 222(b) is not so limited, requiring only that the proprietary
information be submitted for the purpose of providing any
telecommunications service. That purpose is certainly satisfied here.
A Competitive Carrier submits the LSR to Verizon so that, upon
completion of the number port and service disconnection, the
Competitive Carrier can provide telecommunications service to a
29. In sum, when a Competitive Carrier submits an LSR to Verizon, Verizon
receives that LSR "for purposes of providing any telecommunications
service" within the meaning of section 222(b). That conclusion,
combined with the conclusion reached above about the LSR's proprietary
nature, means that section 222(b) forbids Verizon from using the
information in the LSR for its own marketing efforts.
30. Moreover, even if Verizon were correct that section 222(b) applies
only when the carrier that receives proprietary information uses it
for the purpose of providing telecommunications service, we would find
that Verizon's retention marketing practices violate the statute
because Verizon's provision of LNP constitutes a telecommunications
31. Verizon argues that LNP is not a telecommunications service because it
does not constitute transmission, and because it is not offered for a
fee. Number portability, however, is a wholesale input that is a
necessary component of a retail telecommunications service. We have
previously found that services or functions that are "incidental or
adjunct to common carrier transmission service" - i.e., they are "an
integral part of, or inseparable from, transmission of communications"
- should be classified as telecommunications services. For instance,
the Commission has found that central office space for collocation,
certain billing and collection services, and validation and screening
services should be treated for regulatory purposes in the same manner
as the transmission services underlying them, notwithstanding that
none of these services actually entails transmission.
32. LNP similarly constitutes such an "adjunct to basic" service.
Verizon's provision of LNP is a vital part of the telecommunications
services that it provides to the Competitive Carriers. Without the
number port, Verizon could not route traffic to its former customer,
as required under its interconnection agreements with the Competitive
Carriers. Moreover, implementing LNP requires Verizon to be involved
in properly switching and transmitting calls to the new carrier -
these are unquestionably "telecommunications" functions. For instance,
the parties have stipulated that for LNP to work, Verizon must provide
the transmission necessary to route calls in its role as the "N-1"
carrier (the next-to-last carrier in the call sequence).
33. For all of the above reasons, we find that Verizon's provision of LNP
constitutes a telecommunications service for purposes of section
C. Verizon's Retention Marketing Program Makes Use of Other Carriers'
34. An examination of the way Verizon handles the proprietary information
it receives from the Competitive Carriers via LSRs confirms that
Verizon uses this information "for its own marketing efforts," in
violation of section 222(b). As stated above, the proprietary
information at issue is the fact that, at a particular date and time
in the near future, a Complainant will, in conjunction with a
Competitive Carrier, begin to provide facilities-based, voice service
to a specific customer who presently is being served by Verizon.
Verizon uses that very information to swiftly identify exactly to whom
it will engage in retention marketing. In particular, Verizon uses
that information to help winnow from the universe of its daily
disconnect orders all customers who are disconnecting service for any
reason other than that they are switching service to a
facilities-based, competing service provider like Complainants. This
"threshing of the wheat from the chaff" leaves Verizon with a lead
list consisting only of those customers who are switching their
service to a facilities-based, competing provider like Complainants.
Thus, the proprietary information contained in LSRs is a key
organizing tool used by Verizon to determine which customers will
receive retention marketing.
35. Verizon asserts that its retention marketing depends only on the
non-proprietary fact that Verizon's own retail customer has cancelled
voice service and seeks disconnection - information that Verizon says
it obtains legitimately, and of necessity, as part of its retail voice
operations. Verizon's own description of how it targets customers for
retention marketing belies that assertion. Verizon acknowledges that,
in order to identify its retention marketing audience, Verizon relies
specifically on two facts - both the fact that the disconnect request
stems from a switch in carriers rather than some other reason (such as
moving or otherwise exiting the market), and the fact that the new
carrier is a facilities-based provider. Verizon has identified no
source for either of those facts other than the proprietary
information contained in the LSRs submitted to Verizon by the
Competitive Carriers. That such information finds its way into a
"retail" disconnect order does not mean that Verizon refrains from
using it to target customers for retention marketing.
36. Verizon also contends that, because it does not mention any
Complainant's name in any of its oral or written retention marketing,
Verizon does not "use" proprietary information. Verizon's contention
misses the point. The Complainants' names, standing alone, are not the
information at issue. What is at issue is the carrier change
information, which, as discussed above, lies at the heart of Verizon's
retention marketing program.
A. The Bright House and Comcast-affiliated Competitive Carriers are
"Telecommunications Carriers" Offering "Telecommunications Service."
37. Verizon argues that, even if section 222(b) refers to the submitting
carriers' provision of "telecommunications service," section 222(b)'s
marketing ban does not apply to Verizon's receipt of information from
Comcast's and Bright House's affiliated Competitive Carriers. That is
because, according to Verizon, the record lacks evidence that those
Competitive Carriers provide "telecommunications services" to Comcast
and Bright House. This argument hinges on the statutory definitions of
"telecommunications," telecommunications carrier," and
"telecommunications service," as well as on the Commission's
determination that the common law concept of "common carrier" sheds
significant light on the meaning of those statutory definitions.
38. Verizon's argument boils down to an assertion that, with respect to
the telecommunications provided to Comcast and Bright House, the
record lacks evidence that the Comcast and Bright House Competitive
Carriers engage in "offering" those telecommunications "directly to
the public, or to such classes of users at to be effectively available
directly to the public...." Put in common law terms, Verizon asserts
that the Comcast and Bright House Competitive Carriers do not "hold
themselves out" to the public regarding the telecommunications they
provide to their Complainant affiliates. Neither the Communications
Act nor the case law describes exactly what is required to "offer"
telecommunications "directly to the public, or to such classes of
users at to be effectively available directly to the public."
Therefore, whether a provider has made such an offering must be
determined on a case-by-case basis.
39. Based on the specific record in this specific case, we find that the
Bright House and Comcast-affiliated Competitive Carriers are common
carriers for purposes of section 222(b). As an initial matter, the
Comcast and Bright House Competitive Carriers "self-certify" that they
do and will operate as common carriers and attest that they will serve
all similarly situated customers equally. We give significant weight
to these attestations because being deemed a "common carrier" (i.e.,
being deemed to be providing "telecommunications services") confers
substantial responsibilities as well as privileges, and we do not
believe these entities would make such statements lightly. Further
supporting our conclusion are the public steps the Comcast and Bright
House Competitive Carriers have taken, consistent with their
undertaking to serve the public indifferently. Specifically, each of
the Comcast and Bright House Competitive Carriers has obtained a
certificate of public convenience and necessity (or a comparable
approval) from the state in which it operates. Moreover, each of the
Comcast and Bright House Competitive Carriers has entered into a
publicly-available interconnection agreement with Verizon, filed with
and approved by the relevant state commission pursuant to sections 251
and 252 of the Act. These facts, in combination, establish a prima
facie case that the Comcast and Bright House Competitive Carriers are
indeed telecommunications carriers for purposes of section 222(b).
40. To try to rebut Complainants' prima facie case, Verizon points out
that the Comcast and Bright House Competitive Carriers (i) serve only
their affiliates, and (ii) lack a tariff or website posting or any
other advertisement regarding the telecommunications at issue. We find
these facts in isolation insufficient to overcome Complainants'
showing for purposes of section 222(b). First, it is well-established
that "[o]ne may be a common carrier though the nature of the service
rendered is sufficiently specialized as to be of possible use to only
a fraction of the total population." Verizon has submitted no credible
evidence that the Competitive Carriers are unwilling to provide
telecommunications services to unaffiliated entities on a
nondiscriminatory basis. Second, the telecommunications services at
issue here need not be federally tariffed, and Verizon has not argued
that state tariffs are required. Furthermore, by obtaining publicly
available state certificates and interconnection agreements, the
Comcast and Bright House Competitive Carriers have given notice that
telecommunications services are available to the particular class of
potential customers that might be interested in the services at issue
here. If a voice services provider similarly situated to Comcast and
Bright House were looking for a provider of these services, the
Comcast and Bright House Competitive Carriers would be obvious
choices. Finally, prior to the dispute at issue here, Verizon itself
appears to have treated these entities as telecommunications carriers.
41. In sum, based on the particular facts in this record regarding the
telecommunications provided to Comcast and Bright House by their
affiliated Competitive Carriers, we conclude that Comcast and Bright
House have shown, by a preponderance of the evidence, that the
Competitive Carriers are telecommunications carriers for purposes of
section 222(b) of the Act and provide "telecommunications services" to
Comcast and Bright House within the meaning of section 222(b) of the
Act. We stress, however, that our holding is limited to the
particular facts and the particular statutory provision at issue in
this case. The U.S. Court of Appeals for the D.C. Circuit has made
clear that an agency may interpret an ambiguous term "differently in
two separate sections of a statute which have different purposes."
Here, section 222(b) has a different purpose - privacy protection -
than many other provisions of the Communications Act, and we believe
that this purpose argues for a broad reading of the provision. As a
result, our decision holding the Competitive Carriers to be
"telecommunications carriers" for purposes of section 222(b) does not
mean that they are necessarily "telecommunications carriers" for
purposes of all other provisions of the Act. We leave those
determinations for another day. While the Act does provide a
definition of the term "telecommunications carrier," "the presence of
a definition does not necessarily make the meaning clear. A
definition only pushes the problem back to the meaning of the defining
terms." Therefore, we believe that it may be permissible to interpret
an ambiguous but defined term differently in different statutory
provisions that serve distinct purposes.
E. Verizon's Policy and Constitutional Arguments Do Not Justify its
Proposed Reading of Section 222(b).
42. Verizon argues that interpreting section 222(b) so as to allow its
retention marketing program would promote competition and benefit
consumers, and has submitted the declaration of an economist to
support this assertion. Verizon also suggests that we should construe
section 222(b) to permit the challenged customer retention marketing
practices because doing so would help level the playing field on which
voice providers compete for video and Internet customers, and video
and Internet providers compete for voice customers.
43. Verizon's policy arguments might be appropriately raised anew in some
other context, such as a request to forbear from application of
section 222(b) or a notice of proposed rulemaking under section 201(b)
of the Act, but do not persuade us to adopt Verizon's interpretation
of section 222(b) in this adjudication. The Commission has already
evaluated the policy concerns underlying section 222(b) and adopted a
construction that balances the concerns of protecting proprietary
information and promoting competition. Our decision here is fully in
accord with those prior decisions. Verizon's policy arguments, and its
economist's declaration, simply fail to consider the importance the
Commission has placed on protecting proprietary information that voice
carriers are required to share with their competitors. Moreover,
Verizon's "level playing field" argument ignores the fact that the
statute itself treats different services differently - on its face,
section 222 applies to telecommunications services, but not to video
or other services. That different statutory treatment reflects the
fact that only a competing voice service provider must communicate and
coordinate with a customer's existing voice service provider in order
to initiate service to that new customer. Where, as here, a provider
has no choice but to communicate competitively sensitive information
to its rival, the rival cannot use that information for marketing.
44. Verizon also asserts that the interpretation of section 222(b)
advanced by Complainants "would severely restrict lawful,
non-misleading speech and accordingly would raise significant First
Amendment concerns." More specifically, Verizon argues that no
legitimate government interest could be served by restricting
marketing "for the sole reason that it is based on information
submitted by a service provider on behalf of the customer rather than
by the customer him or herself." As even Verizon notes, however, the
government may restrict truthful communications if such restriction is
narrowly tailored to serve a substantial government interest. The
Commission previously found that this test was met when it interpreted
section 222(b) as prohibiting retention marketing based on the use of
carrier change information. The same analysis applies here concerning
retention marketing based on the use of carrier change information
embedded in number porting requests.
IV. Conclusion and Relief Awarded
45. In sum, we find that, under section 222(b) of the Act, the
number-porting/carrier-change information obtained by Verizon from the
Competitive Carriers is "proprietary" to the Competitive Carriers;
Verizon obtains the proprietary information "for purposes of [the
Competitive Carriers] providing ... telecommunications service" to
Complainants, and for purposes of Verizon providing a
telecommunications service to the Competitive Carriers; each of the
Competitive Carriers is providing "telecommunications service" to a
Complainant; and Verizon uses that proprietary information for a
purpose other than the Competitive Carriers providing
telecommunications service to Complainants, namely, "its own marketing
efforts." Consequently, we hold that Verizon's customer retention
marketing activities, as described above, violate section 222(b) of
the Act. In turn, we grant Complainants' claim under section 222(b) of
the Act (i.e., Count I), and award the requested injunctive relief.
Specifically, we hereby order Verizon to immediately cease and desist
from engaging in the customer retention marketing activities described
V. ORDERING CLAUSES
46. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), 201(b),
208, 222, and 303(r) of the Act, and sections 1.720-1.736 of the
Commission's rules, that the Enforcement Bureau's April 11, 2008,
Recommended Decision in File No. EB-08-MD-002 IS REJECTED.
47. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), 201(b), 208,
222, and 303(r) of the Act, and sections 1.720-1.736 of the
Commission's rules, that Count I of the Complaint is GRANTED, and that
Counts II and III are DISMISSED without prejudice.
48. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), 208, 222, and
303(r) of the Communications Act of 1934, as amended, 47 U.S.C. S:S:
154(i), 154(j), 208, 222, and 303(r), and sections 1.720-1.736 of the
Commission's rules, 47 C.F.R. S:S: 1.720-1.736 that Verizon SHALL
IMMEDIATELY CEASE AND DESIST from engaging in the customer retention
marketing activities described in this Order.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
CHAIRMAN KEVIN J. MARTIN, DISSENTING
Re: Bright House Networks, LLC et al., Complainant, v. Verizon California
Inc., et al., Defendants.
I have consistently maintained that it is important to create a regulatory
environment that promotes competition and investment, setting rules of the
road so that all players can compete on a level playing field. Today, a
majority of the Commission voted to allow complainants--players providing
a bundle of services over one platform (cable VoIP)-to gain an advantage
over their competitors-players providing those same bundled services over
a different platform (traditional telephone service). Specifically, the
majority decided to prohibit some companies from marketing to retain their
customers, even though the marketing practices prohibited today are
similar to the aggressive marketing techniques engaged in by the
complainants themselves (when they provide cable video service). To reach
this result, the majority has created new law, holding that these
complainants are "telecommunications carriers" for purposes of obtaining
this competitive advantage, but that they are not "telecommunications
carriers" for other purposes, such as complying with the obligations of
I am concerned that today's decision promotes regulatory arbitrage and is
outcome driven; it could thwart competition, harm rural America, and
frustrate regulatory parity. Therefore, I must dissent from today's
In its Recommended Decision, the Enforcement Bureau (Bureau) recommended
that the Commission, among other things, deny the cable Complainants'
claims that Verizon's practices violate section 222(b) of the Act. The
Bureau interpreted section 222(b) to apply only where a telecommunications
carrier receives another carrier's proprietary information so that the
receiving carrier can provide a telecommunications service. The Bureau
concluded that Verizon's actions, as the receiving carrier, did not
violate section 222(b) because Verizon's role in the number porting
process does not involve the provision of a "telecommunications service."
Although number portability requires carrier-to-carrier coordination, it
does not involve the provision of a carrier-to-carrier "telecommunications
The Bureau further concluded that even assuming arguendo that section
222(b) could be construed to refer to the submitting carrier's provision
of "telecommunications service," section 222(b)'s marketing ban would not
apply to Verizon's receipt of information from Comcast's and Bright
House's affiliates because the record lacked evidence that those
affiliates are, in fact, "telecommunications carriers." Comcast and Bright
House pointed to their affiliates' state certificates and interconnection
agreements, and to self-certifications during the proceeding that the
affiliates are common carriers. However, the Bureau found that
Complainants failed to show that the affiliates publicly hold themselves
out as offering telecommunications indiscriminately to any and all
As I have said before, all consumers should enjoy the benefits of
competition. Competition is the best protector of the consumer's interest
and the best method of delivering the benefits of choice, innovation, and
affordability to American consumers. Customer retention marketing is a
form of aggressive competition that has the potential to benefit consumers
through lower prices and expanded service offerings. Moreover, the cable
companies engage in such practices to keep their video customers from
switching to other providers. I am therefore disappointed that the
Commission would prohibit these practices, which promote competition and
benefit consumers and particularly disappointed that they would do so and
prohibit practices from only one class of companies.
I also fear that today's decision will have a negative impact on rural
carriers and customers in rural America. Today's action rests in part on a
questionable conclusion that Comcast's and Bright House's affiliates are
"telecommunications carriers." This finding affords the affiliates the
privileges of a "telecommunications carrier," including the right to
interconnection, even though there is scant evidence that the affiliates
have ever offered telecommunications to the public and no evidence that
they have provided telecommunications to any entity other than Bright
House and Comcast. This will bind our hands and have far-reaching
consequences, particularly for small rural local exchange carriers around
the country, such as Vermont Telephone Company, who may be forced to
interconnect with similar entities that have no intention of providing
telecommunications to the public or assuming the obligations of a
"telecommunications carrier." For example, will such entities assume the
obligations of "telecommunications carriers," such as the disabilities
access requirements of section 255, the slamming requirements of section
258, and the CALEA requirements?
Part of the job of being a Commissioner is that you are required to make
hard or difficult decisions and those decisions have implications for the
entire industry. For example, what constitutes a "telecommunications
Here the majority wants to grant the Complaint but not really answer that
question. They have avoided making a difficult decision by embracing the
novel idea that a company can be classified as a carrier for a provision
or even a subprovision of a statute but not another provision or
subprovision of the very same statute. Naturally, they do so without
citing any statutory basis or authority for such an inherently arbitrary
approach. Yet they had no choice but to create such an argument if they
were to find in favor of Comcast and Bright House.
The majority's attempt to dodge the issue and deny the consequences of
today's action by holding that we are determining that the Competitive
Carriers are carriers for purposes of 222(b) based on the specific record
and specific facts of this case but not for other purposes makes no sense
and is not legally sustainable. A provider either is or is not a
"telecommunications carrier." This "pick and choose, rule by rule"
approach is the very height of arbitrary and capricious conduct by the
Commission, and is a thinly veiled attempt by the majority to reach a
desired result without accepting responsibility for the legal consequences
of their action.
Indeed if such an approach were possible it would allow industry players
and the Commission to circumvent the entire statutory scheme applied by
picking and choosing which provisions and subprovisions of the statute
applied by classifying and declassifying carriers without any factual or
statutory distinction or basis.
Almost by definition this approach is arbitrary and capricious as it
acknowledges that it does not want to be bound by the logic and legal
rationale of the decision for any other purpose and preserves the
flexibility to not apply the same statutory definition to any other aspect
of the statute.
It is indefensible to say that these entities are telecommunications
carriers under one part of the Act and not others; the Act makes no such
distinction. The majority attempts to find precedent to support its
approach. However, that precedent should not apply because
"telecommunications carrier" is a specific statutory definition. The
majority's refusal to say that these entities are "telecommunications
carriers" for all purposes shows that, clearly, their holding is outcome
driven, advances regulatory arbitrage, and reflects a cavalier refusal to
live with the legal consequences of their decision.
In addition, this approach will bind our hands going forward, with broad
implications for other rural carriers and consumers around the country,
and will raise a host of questions. If these entities are
"telecommunications carriers," as the majority holds today, I presume they
are subject to the obligations of a "telecommunications carrier", such as
the disabilities access requirements of section 255, the slamming
requirements of section 258, and the CALEA requirements.
Here, however, the majority is not providing regulatory consistency, nor
are they providing certainty, except for the certainty of providing a
competitive advantage to one type of service provider platform over other
platforms. Thus, consumers will be treated differently based on the
platform over which they receive service.
In the past, some Commissioners have warned the Commission of the dangers
of "inconsistent and arbitrary application" of the Commission's rules.
Specifically, in concurring in the Commission's decision to uphold a Media
Bureau denial of a set-top box waiver request, they stated that "[t]he
result of these inconsistent decisions is that consumers will be treated
differently, based on where they live and which MVPD they choose." I agree
that "[a]ll market players deserve the certainty and regulatory
even-handedness necessary to spark investment, speed competition, empower
consumers, and make America a stronger player in the global economy." It
is unfortunate that the majority did not follow that advice here.
Indeed, the majority does not respond to Verizon's claims.
Section 222(b) protects proprietary information of telecommunications
carriers. But the supposedly proprietary information at issue here, if it
did belong to the service provider, would belong to the complainants
(cable VoIP providers), not the CLEC submitting the information to Verizon
- indeed, the CLECs are not even complainants. And complainants here do
not claim to be telecommunications carriers under the Act. The Commission
cannot designate a cable VoIP provider a telecommunications carrier for
purposes of extending privileges granted under section 222(b) without
subjecting those carriers to the obligations set forth in Title II. There
is a single definition of "telecommunications carrier" in the Act. The
Commission never has and could not classify the same service as a
"telecommunications service" - and thus the entity that provides the
service as a "telecommunications carrier" - for the purposes of one
provision but not another within the same statute. See Clark v. Martinez,
543 U.S. 371, 378 (2005) (meaning of words in a statute cannot change with
statute's application); cf. American Council on Educ. v. FCC, 451 F.3d
226, 234 (D.C. Cir. 2006) (noting that CALEA's text is "more inclusive"
than definition of "telecommunications carrier" in the Act).
I am also troubled about the impact of today's decision on our ability to
promote regulatory parity. Last month, I proposed to my fellow
Commissioners a Notice of Proposed Rulemaking (NPRM) that would initiate
an inquiry into customer retention marketing practices, including how to
ensure that such practices are treated consistently across all platforms
used to provide voice, video, and broadband Internet service.
I am concerned, however, that today's decision will preclude our ability
to apply a consistent regulatory framework across platforms. Indeed, I
anticipate that when the time comes, some of the same members of the
majority will preserve today's competitive advantage for one industry over
another by claiming that we lack statutory authority to establish such a
consistent approach or regulatory level playing field. Despite the fact
that the inconsistencies are a result of a novel interpretation of what
can constitute a telecommunications carrier that they themselves
Indeed, the action we take today to afford the affiliates the full
benefits of a telecommunications carrier without the corresponding
obligations, coupled with a potential lack of statutory authority to later
impose those obligations, is in direct conflict with any stated intent to
provide regulatory parity through the NPRM.
COMMISSIONER ROBERT M. McDOWELL
Re: Bright House Networks, LLC, et al..Complainants v. Verizon California,
Inc., et al., Defendants.
American consumers deserve the benefits that come from robust competition,
especially in the telecommunications marketplace. It is the FCC's mission
to promote such consumer-friendly competition. Additionally, Congress has
required that we protect consumer privacy. Section 222 of the
Communications Act clearly prohibits carriers from using confidential
customer information for marketing efforts. Consistent with Congress's
intent and Commission precedent in the long-distance context, today we
carry out Congress's unambiguous mandate to protect consumer privacy in
local markets as well.
Carriers are free to initiate customer retention marketing campaigns
before a consumer gives the order to switch from his or her current phone
service provider to a new provider. Under the law, carriers are also
permitted to launch "win-back" campaigns after consumers have switched.
Today's action underscores long-held Commission policy that using
proprietary customer information for marketing efforts cannot take place
during the window of time when a customer's phone number is being switched
to a new provider.
Our March, 2007, action granting the Time-Warner petition for declaratory
ruling on interconnection with incumbent LECs held that cable and other
VoIP providers must be able to use local phone numbers and be allowed to
put calls through to other phone networks. Our action then was premised on
the belief that we were working to increase meaningful competition in
local telephone service. Similarly, today's action ensures that consumers
in all areas of the country reap the benefits of competition in the form
of lower prices, innovative services and more choice.
Bright House Networks, LLC v. Verizon California, Inc., Recommended
Decision, File No. EB-08-MD-002, 2008 WL 1722033 (Enf. Bur., rel. Apr. 11,
2008) ("Recommended Decision"). See 47 C.F.R. S: 1.730(i) ("If parties to
the proceeding file comments to the recommended decision, the Commission
will issue its decision adopting or modifying the recommended decision
within 30 days of the filing of the final comments.")
Formal Complaint, File No. EB-08-MD-002 (filed Feb. 11, 2008)
47 U.S.C. S: 208.
47 U.S.C. S: 222(b).
47 U.S.C. S: 201(b). See Count III of the Complaint.
Comments Challenging Recommended Decision, File No. EB-08-MD-002 (filed
Apr. 28, 2008); Comments of Verizon in Support of Recommended Decision,
File No. EB-08-MD-002 (filed May 13, 2008); Complainants' Reply Comments
Challenging the Recommended Decision ("Reply Comments"), File No.
EB-08-MD-008 (filed May 23, 2008).
See, e.g., Joint Statement, File No. EB-08-MD-002 (filed Feb. 29, 2009)
("Joint Statement") at 3-4, P: 4. The Defendants are: Verizon California
Inc.; Verizon Delaware LLC; Verizon Florida LLC; Contel of the South,
Inc.; Verizon South Inc.; Verizon New England Inc.; Verizon Maryland Inc.;
Verizon New Jersey Inc.; Verizon New York Inc.; Verizon Northwest Inc.;
Verizon North Inc.; Verizon Pennsylvania Inc.; GTE Southwest Incorporated
d/b/a Verizon Southwest; Verizon Virginia Inc.; and Verizon Washington,
D.C. Inc. See, e.g., id. at 3-5, P:P: 4-5.
See, e.g., Joint Statement at 2-3, P:P: 1-3; Complaint at 3-4, P:P: 2-3.
Complainants provide their retail VoIP service through affiliated
entities. See, e.g., Joint Statement at 1-3, P:P: 1-3. For convenience, we
include those affiliates when we refer to "Complainants" herein.
See, e.g., Joint Statement at 5, P: 6. The services provided by the
Competitive Carriers to Complainants are similar, if not identical, to the
wholesale services discussed in Time Warner Cable Request for Declaratory
Ruling that Competitive Local Exchange Carriers May Obtain Interconnection
Under Section 251 of the Communications Act, as Amended, to Provide
Wholesale Telecommunications Services to VoIP Providers, Memorandum
Opinion and Order, 22 FCC Rcd 3513 (Wireline Comp. Bur. 2007) ("Time
Warner Wholesale Services Order").
See, e.g., Joint Statement at 6, P:P: 8-9. As described below, each of the
Comcast and Bright House Competitive Carriers has a state certificate and
an interconnection agreement with Verizon. See Section III.D, infra.
See, e.g., Joint Statement at 6, P:P: 7-9.
See, e.g., 47 U.S.C. S: 251(b)(2); 47 U.S.C. S: 153(30) (providing that
"number portability" means the ability of users of telecommunications
services to retain, at the same location, existing telecommunications
numbers without impairment of quality, reliability, or convenience when
switching from one telecommunications carrier to another). See also 47
C.F.R. S:S: 52.11, 52.21-26.
See, e.g., Complaint at 8, P: 10, and at Ex. E; Answer of Verizon, File
No. EB-08-MD-002 (filed Feb. 21, 2008) ("Answer") at Exs. 22-27; In the
Matter of Telephone Number Portability, Second Report and Order, 12 FCC
Rcd 12281, 12315-16 at P:P: 55-56 (1997).
See, e.g., Joint Statement at 9, P: 20. The Competitive Carrier may
submit the LSR directly to Verizon, or through a contractor. Id.
See, e.g., Joint Statement at 9, P: 18.
See, e.g., Joint Statement at 11, P: 25. As the parties aptly indicate,
"[w]hen a customer migrates from one provider to another, it is important
that the retail service being provided by the old service provider be
terminated contemporaneously with the establishment of new service. This
ensures that the customer is not left without service for any significant
period of time and does not wind up being required to pay two providers
for duplicative service." Id.
See, e.g., Joint Statement at 9, P: 20.
The Number Portability Administration Center, or NPAC, was created to
support the implementation of local number portability by operating
regional number portability databases. See generally www.npac.com.
See, e.g., Joint Statement at 11, P: 28.
See, e.g., Joint Statement at 10, P: 23.
See, e.g., Joint Statement at 10, P: 24.
See, e.g., Joint Statement at 12, P: 29. The submission of an LSR by the
Competitive Carrier notifying Verizon of the porting of a Verizon
customer's number is the only submission that is required (and, typically,
the only communication that is received) to generate a disconnect order
within Verizon's internal systems. Supplemental Joint Statement, File No.
EB-08-MD-002 (filed Mar. 5, 2008) ("Supp. Joint Statement") at 2, P: 1.
See, e.g., Joint Statement at 12-13, P:P: 30-31. Use of 10-digit triggers
is routine in the industry, but it is not required by industry process
flows, which permit coordinated migration as an alternative. Id. at 13, P:
See, e.g., Joint Statement at 13, P: 32. This "confirmation" step is
permitted, but not required, by industry process flows. Id. Additional
work steps that Verizon undertakes include: physically disconnecting the
wire serving the customer from the frame in the central office; using a
service order to deliver information to the E911 database to unlock the
customer's record so that it can be modified by the new carrier;
implementing any requested changes to the retail customer's directory
listing; and, after service is disconnected, informing the billing systems
to cease billing for service. Id. at 12, P: 29.
See, e.g., Joint Statement at 11-12, P: 28.
See, e.g., Joint Statement at 14-17, P:P: 35-45.
See, e.g., Joint Statement at 15, P:P: 37-38. The record contains no
specific reference to how frequently the lead list is developed. Given the
nature of the retention marketing program, however, it is reasonable to
infer that the lead list is generated on approximately a daily basis.
See, e.g., Joint Statement at 15, P: 37; Supp. Joint Statement at 2, P: 1
(stating that Verizon's retention marketing lead list is generated from
disconnect orders, including disconnect orders that are generated as a
result of receiving LSRs). Of course, disconnect orders may stem from
circumstances other than an LSR, such as a customer move out of the local
service area. See, e.g., Reply Brief of Verizon, File No. EB-08-MD-002
(filed Mar. 14, 2008) at 1.
See, e.g., Joint Statement at 15, P: 37. Toward that end, Verizon
eliminates from the lead list customers who (i) are switching to a service
provider that is either a Verizon wholesale customer (such as a reseller
of Verizon service or a customer of Verizon's Wholesale Advantage product)
or a Verizon affiliate (e.g., Verizon Wireless), or (ii) contacted Verizon
directly to terminate service. Verizon also excludes those disconnecting
customers who are on do-not-call, do-not-solicit, do-not-mail, or
do-not-email lists. Id.
Answer at 10, P: 20. The record reveals no other means by which Verizon
could identify and eliminate customers who are not switching their phone
service to a facilities-based competitor.
See, e.g., Joint Statement at 15-16, P:P: 39-40.
See, e.g., Joint Statement at 16, P: 41. Any marketing that Verizon
conducts after the number port and disconnect of Verizon service have
occurred is not at issue here. See, e.g., Complaint at 13-14; Answer at
Joint Statement at 17, P: 44.
Joint Statement at 17, P: 45.
47 U.S.C. S: 222(b). The Complaint also alleges that Verizon's customer
retention marketing practices violate sections 222(a) and 201(b) of the
Act. See, e.g., Complaint at 28-31 (citing 47 U.S.C. S:S: 222(a), 201(b)).
Because Complainants prevail on their claim under section 222(b), and that
victory will afford Complainants all the relief to which they would be
entitled under sections 222(a) and 201(b), we need not and do not reach
their claims under sections 222(a) and 201(b). Accordingly, we dismiss
those claims (i.e., Counts II and III) without prejudice.
Complaint at 31, P: 59 (asking the Commission to "enjoin Verizon from
continuing its retention marketing based on carrier change information").
In the context of section 222(b) of the Act, the Commission generally
labels as "retention marketing" any marketing to a customer by the
customer's existing provider that occurs while the
carrier-change/number-porting request applicable to that customer is
pending; the Commission generally labels as "winback marketing" any
marketing to a customer by the customer's former provider that occurs
after the carrier-change/number-porting request applicable to that
customer has been effectuated. See, e.g., In the Matter of
Telecommunications Carriers' Use of Customer Proprietary Network
Information and Other Customer Information, Order on Reconsideration and
Petitions for Forbearance, 14 FCC Rcd 14409, 14443-4, P: 65 (1999) ("CPNI
Reconsideration Order"). The Complaint challenges only Verizon's retention
marketing, and only Verizon's retention marketing that stems, directly or
indirectly, from the submission of an LSR. See, e.g., Complaint at 14.
Thus, this Order applies only to such retention marketing, and not to any
Complaint at 31, P: 59 (citing 47 C.F.R. S: 1.722(d)).
Pursuant to section 1.730 of the Commission's rules, at the Complainants'
request, the Enforcement Bureau accepted the Complaint on the Commission's
Accelerated Docket. 47 C.F.R. S: 1.730. See Complaint at Ex. T.
47 U.S.C. S: 222(b).
47 U.S.C. S: 222(b).
See, e.g., Complaint at Ex. A, P: 7, Ex. E P: 6.
See, e.g., CPNI Reconsideration Order, 14 FCC Rcd at 14449, P: 78 (1999)
("[C]arrier change information is carrier proprietary information under
section 222(b)."); Implementation of the Subscriber Carrier Selection
Changes Provisions of the Telecommunications Act of 1996; Policies and
Rules Concerning Unauthorized Changes of Consumers Long Distance Carriers,
Second Report and Order and Further Notice of Proposed Rulemaking, 14 FCC
Rcd 1508, 1572, P: 106 (1998) ("1998 Slamming Order") ("[C]arrier change
information is carrier proprietary information and, therefore, pursuant to
section 222(b), the executing carrier is prohibited from using such
information to attempt to change the subscriber's decision to switch to
CPNI Reconsideration Order, 14 FCC Rcd at 14449-50, P: 77.
Verizon contends that a different process not involving the transmission
of carrier-change information to Verizon could have been established, see,
e.g., Answer at 7, but the existence of that hypothetical alternative has
no bearing on the legal requirements applicable to the processes currently
See, e.g., Answer at 37-38, 43-44, 48-50; Comments of Verizon in Support
of Recommended Decision at 19-20.
See, e.g., Answer at 16 (explaining that Verizon instructs its customer
retention marketing representatives to refrain from looking at the name of
the new carrier or mentioning the name of the new carrier to the target
customer); 43 ("assuming for the sake of argument that the identity of the
winning carrier is proprietary information").
See Section III.C, infra.
See, e.g., Answer at 45, 49-50; Comments of Verizon in Support of
Recommended Decision at 20.
See, e.g., CPNI Reconsideration Order, 14 FCC Rcd at 14450, P: 79 (holding
that "section 222(b) is not violated if the carrier has independently
learned from its retail operation that a customer is switching to another
carrier"); In the Matter of Implementation of the Telecommunications Act
of 1996: Telecommunications Carriers' Use of Customer Proprietary Network
Information and Other Customer Information, Third Report and Order and
Third Further Notice of Proposed Rulemaking, 17 FCC Rcd 14860, 14917, P:
131 and n.302 (2002) ("CPNI 3rd Report & Order") (recognizing that "a
carrier's retail operations may, without using information obtained in
violation of section 222(b), legitimately obtain notice that a customer
plans to switch to another carrier," but noting that "such instances are
the exception, not the rule").
In this vein, Verizon states: "Complainants are left to argue that, if a
consumer calls to cancel service, retention marketing is permitted and
beneficial, but that, if the customer authorizes a service provider to
cancel on his or her behalf, retention marketing is prohibited and
harmful. That nonsensical distinction finds no support in the Act or the
Commission's rules and is so irrational as to render the restriction ...
an unconstitutional restriction on Verizon's speech." Opening Brief of
Verizon, File No. EB-08-MD-002 (filed Mar. 12, 2008) at 1. Yet the
Commission plainly made that distinction in prior orders, and neither
Verizon nor anyone else challenged it as "nonsensical" or "irrational."
Indeed, we are not aware of any carrier, including Verizon prior to the
summer of 2007, acting contrary to that distinction.
See, e.g., 1998 Slamming Order, 14 FCC Rcd at 1510, P: 1.
Id. at 1572-73, P: 106.
See, e.g., Opening Brief of Verizon at 5; Answer at 42.
We note that none of the Complainants claims to be a "telecommunications
carrier" within the meaning of section 222(b).
We emphasize that these are assumptions, not conclusions.
See, e.g., Joint Statement at 5-6; Complaint at 7-9. See also In the
Matter of Telephone Number Requirements for IP-Enabled Services Providers,
Report and Order, Declaratory Ruling, Order on Remand, and Notice of
Proposed Rulemaking, 22 FCC Rcd 19531 (2007) ("VoIP LNP Order and
Declaratory Ruling") (observing in a closely analogous context that
interconnected VoIP providers and wholesale interconnection providers work
in partnership to provide competitive voice services to end-users); Time
Warner Wholesale Services Order, supra (same point as VoIP LNP Order and
See Section III.D, infra.
Verizon cursorily asserts that, if the LSR's carrier-change information is
deemed to be proprietary to the Competitive Carriers, then the
Complainants lack standing to prosecute this Complaint. Opening Brief of
Verizon at 5-6. Verizon's assertion overlooks the last sentence of section
208, which provides that "[n]o complaint shall at any time be dismissed
because of the absence of direct damage to the complainant." 47 U.S.C. S:
208. At a minimum, Complainants have clearly experienced indirect damage
from Verizon's customer retention marketing program, even if each
Complainant is not a "carrier" whose proprietary information is protected
by section 222(b). Thus, Complainants have standing under section 208 to
obtain a ruling regarding the lawfulness of Verizon's conduct. Whether
Complainants also have standing to obtain a ruling awarding monetary
damages to them is a question we need not reach unless and until they file
a supplemental complaint for damages pursuant to 47 C.F.R. S: 1.722.
47 U.S.C. S: 222(b).
See, e.g., Joint Statement at 23, P: 68 ("Complainants assert that one
legal issue is whether provision of `telecommunication service' by the
Competitive Carriers, but not by Verizon, constitutes `providing any
telecommunications service' within the meaning of section 222(b).
Defendants assert that one legal issue is whether provision of
`telecommunications service' by a carrier that submits information . . .
implicates section 222(b)"); Comments of Verizon in Support of Recommended
Decision at 11-14.
Implementation of the Subscriber Carrier Selection Changes Provisions of
the Telecommunications Act of 1996; Policies and Rules Concerning
Unauthorized Changes of Consumers' Long Distance Carriers, Third Order on
Reconsideration and Second Further Notice of Proposed Rulemaking, 18 FCC
Rcd 5099, 5109-10, P: 25 (2003) ("Third Slamming Reconsideration Order")
1998 Slamming Order, 14 FCC Rcd at 1572, 1575-76, P:P: 106, 109 (stating
that section 222(b) "promotes competition and protects consumer choices by
prohibiting executing carriers from using information gained solely from
the carrier change transaction to thwart competition by using the carrier
proprietary information of the submitting carrier to market the submitting
carrier's subscribers"); CPNI Reconsideration Order, 14 FCC Rcd at
14449-50, P: 77 (stating that "competition is harmed if any carrier uses
carrier-to-carrier information . . . to trigger retention marketing
campaigns"); P: 78 (stating that "where a carrier exploits advance notice
of a customer change by virtue of its status as the underlying
network-facilities or service provider to market to that provider, it does
so in violation of section 222(b)"); CPNI 3rd Report & Order, 17 FCC Rcd
at 14918-19, P:P: 131, 134; Third Slamming Reconsideration Order, 18 FCC
Rcd at 5110, P: 26 (accepting the view that "Congress intended by the
express terms of section 222(b) to prevent carriers from using information
obtained from another to be used for the carrier's own marketing efforts
against the submitting carrier"); P: 28 (stating that "carrier change
request information transmitted to executing carriers in order to
effectuate a carrier change cannot be used for any purpose other than to
provide the service requested by the submitting carrier").
1998 Slamming Order, 14 FCC Rcd at 1575, P: 106 (stating that "when an
executing carrier receives a carrier change request, section 222(b)
prohibits the executing carrier from using that information to market
services to that consumer"); CPNI Reconsideration Order, 14 FCC Rcd at
14449-50, P:P: 77-79 (stating that a carrier that exploits advance notice
of a customer change violates section 222(b)); CPNI 3rd Report & Order,
17 FCC Rcd at 14917, P: 131 (stating that a carrier that receives carrier
change information in its role as executing carrier is prohibited from
using that information to attempt to change the subscriber's decision);
Third Slamming Reconsideration Order, 18 FCC Rcd at 5110, P: 28 (stating
that carrier change information provided in order to execute carrier
change cannot be used for any other purpose).
See, e.g., Answer at 39; Comments of Verizon in Support of Recommended
Decision at 12-13.
Comments of Verizon in Support of Recommended Decision at 11-14.
See, e.g., Answer at 2-3, 37, 40, 51; Opening Brief of Verizon at 4.
1998 Slamming Order, 14 FCC Rcd at 1572-73, P:106; CPNI Reconsideration
Order, 14 FCC Rcd at 14450, P:P: 78-79.
See, e.g., Promotion of Competitive Networks in Local Telecommunications
Markets, Report and Order, 23 FCC Rcd 5385 (2008) at P: 2 (noting that
1996 Telecommunications Act was designed to eliminate barriers to
facilities-based competition); In the Matter of Unbundled Access to
Network Elements, Order on Remand, 20 FCC Rcd 2533, 2535, P: 3 (2005)
(subsequent history omitted) (adopting rules intended to "spread the
benefits of facilities-based competition to all consumers"); In the Matter
of Review of the Section 251 Unbundling Obligations of Incumbent Local
Exchange Carriers, Report and Order on Remand and Further Notice of
Proposed Rulemaking, 18 FCC Rcd 16978, 17025, P: 70 (2003) (noting that
facilities-based competition serves the Act's overall goals) (subsequent
history omitted); In the Matter of Performance Measurements and Standards
for Unbundled Network Elements and Interconnection, Notice of Proposed
Rulemaking, 16 FCC Rcd 20641, 20644-45, P: 5 (2001) (subsequent history
omitted) (stating that "facilities-based competition, of the three methods
of entry mandated by the Act, is most likely to bring consumers the
benefits of competition in the long run"); Time Warner Wholesale Services
Order, 22 FCC Rcd at 3519, P: 13 (referring to Commission's goal of
promoting facilities-based competition).
See, e.g., Answer at 42, Opening Brief of Verizon at 5-6.
In any event, contrary to Verizon's suggestion, the LSR's information is
related to the Competitive Carriers' transmission services: the
information is critical to Complainants' acquisition of a new customer,
which, in turn, drives Complainants' purchase of the Competitive Carriers'
Answer at 38-39.
Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of
the Communications Act of 1934, as Amended, First Report and Order and
Further Notice of Proposed Rulemaking, 11 FCC Rcd 21905, 21958 P: 107
(1996); see also, e.g., Beehive Telephone v. The Bell Operating Companies,
Memorandum Opinion and Order, 10 FCC Rcd 10562, 10566 P: 21 (1995); AT&T
Corp. Petition for Declaratory Ruling Regarding Enhanced Prepaid Calling
Card Services, Regulation of Prepaid Calling Card Services, Order and
Notice of Proposed Rulemaking, 20 FCC Rcd 4826, 4831 P: 16 & n. 28 (2005);
Federal-State Joint Board on Universal Service, Appeal of Administrator's
Decision, Radiant Telecom, Inc., Order, 22 FCC Rcd 11811, 11813-14 P: 9
Local Exchange Carriers' Rates, Terms, and Conditions for Expanded
Interconnection Through Physical Collocation for Special Access and
Switched Transport, Second Report and Order, 12 FCC Rcd 18730, 18744 P:
Detariffing Billing and Collection Services, Report and Order, 102 FCC2d
1150, 1167-69 P: 31 (1986).
Policies and Rules Concerning Local Exchange Carrier Validation and
Billing Information for Joint Use Calling Cards, Report and Order and
Request for Supplemental Comment, 7 FCC Rcd 3528, 3531 P: 19 (1992).
Complainants' Supplemental Reply Brief at 2; Complainants' Reply at 36-38;
Complaint at P:P: 40-41.
Further Supplemental Joint Statement, File No. EB-0-MD-002 (filed Mar. 10,
2008) at P: 2.a.
Verizon argues: "That Verizon includes in its lead list disconnecting
customers who are porting their numbers to another service provider does
not mean that Verizon is using another carrier's proprietary information.
Verizon seeks to reach out to customers who have not spoken with a Verizon
representative - and who are leaving Verizon's network - to ensure that
they are informed about Verizon's competitive pricing and retention
offers; Verizon assembles its lead list with that goal." Answer at 44. The
point is that Verizon would not know which customers to reach with its
retention marketing but for its use of the LSRs' proprietary information.
See, e.g., Answer at 37-38, 43-44, 48-50; Comments of Verizon in Support
of Recommended Decision at 21-24.
See, e.g., Answer at 14; Joint Statement at 15, P: 37.
See, e.g., Answer at 16, 45-46.
Answer at 22-24, 42-43; Verizon Response to Supplemental Statements of
Comcast and BHN, File No. EB-08-MD-002 (filed Mar. 12, 2008) ("Verizon's
3/12 Response"); Comments of Verizon in Support of Recommended Decision at
35-39. Verizon does not dispute that Sprint provides "telecommunications
service" to Time Warner. Id.
The Act provides that "[t]he term `telecommunications' means the
transmission, between or among points specified by the user, of
information of the user's choosing, without change in the form or content
of the information as sent and received." 47 U.S.C. S: 153(43).
The Act provides, in pertinent part, that "[t]he term `telecommunications
carrier' means any provider of telecommunications services." 47 U.S.C. S:
The Act provides that "[t]he term `telecommunications service' means the
offering of telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available directly to the
public, regardless of the facilities used." 47 U.S.C. S: 153(46).
See, e.g., Virgin Islands Telephone Corp. v. FCC, 198 F.3d 921 (D.C. Cir.
1999) (affirming the Commission's use of the "common carrier" test in
National Association of Regulatory Utility Commissioners v. FCC, 525 F.2d
630 (D.C. Cir. 1976) ("NARUC I") to help ascertain the meaning of the term
"telecommunications service" in 47 U.S.C. S: 153(46)).
47 U.S.C. S: 153(46).
See, e.g., United States Telecom Ass'n. v. FCC, 295 F.3d 1326 (D.C. Cir.
2002); Southwestern Bell Telephone Co. v. FCC, 19 F.3d 1475 (D.C. Cir.
1994); National Association of Regulatory Utility Commissioners v. FCC,
533 F.2d 601 (D.C. Cir. 1976) ("NARUC II"); NARUC I, supra.
See, e.g., Supplemental Affidavit of Susan Jin Davis, File No.
EB-08-MD-002 (filed Mar. 10, 2008) ("Supp. Davis Aff.") at P:P: 5, 7;
Second Affidavit of Marva B. Johnson, File No. EB-08-MD-002 (filed Mar.
10, 2008) ("Supp. Johnson Aff.") at P:P: 8-9.
See, e.g., 47 U.S.C. S:S: 201, 202, 208, 254. Perhaps that is why we know
of no case in which a provider has chosen to act as a common carrier and
yet ultimately has been found not to meet the test.
See, e.g., Complaint at Ex. B, P:P: 8-27; Ex. E at P: 2. See also VoIP LNP
Order and Declaratory Ruling, 22 FCC Rcd at 19542, P: 20 n.62 (stating
that, although the Commission has not determined whether interconnected
VoIP service should be classified as a telecommunications service, and
although only telecommunications carriers are entitled to obtain direct
access to numbering resources, "[t]o the extent that an interconnected
VoIP provider is licensed or certificated as a carrier, that carrier is
eligible to obtain numbering resources directly from NANPA, subject to all
relevant rules and procedures applicable to carriers").
See, e.g., Complaint at Ex. B, P:P: 45-61; Ex. E at P: 3.
Answer at 22-24, 42-43;Verizon's 3/12 Response at 3-6. Verizon also
contends that we should disregard any factual evidence on this subject not
filed with the Complaint. Verizon's 3/12 Response at 1-2. Verizon's
contention lacks merit, because the only "new" facts on which we rely here
- the nature of the potential customer base, and the "self-certification"
as common carriers - were suggested by the Complaint itself, and are not
complex. Thus, Verizon has had an adequate opportunity to respond.
Accordingly, to the extent that our rules require those facts to be
alleged more clearly in the Complaint, we waive those rules for good cause
shown. See 47 C.F.R. S:S: 1.3, 1.721, 1.726.
See NARUC I, 525 F.2d at 608.
As mentioned previously, "[o]ne may be a common carrier though the nature
of the service rendered is sufficiently specialized as to be of possible
use to only a fraction of the total population." NARUC I, 525 F.2d at 608.
This undermines the probative value of the fact that the Comcast and
Bright House Competitive Carriers presently serve only their affiliates.
Given the nature of their services, it could well be that there are only a
few potential customers other than their affiliates.
See generally Hyperion Telecommunications, Inc. Petition Requesting
Forbearance, Memorandum Opinion and Order and Notice of Proposed
Rulemaking, 12 FCC Rcd 8596 (1997) (subsequent history omitted); Time
Warner Wholesale Services Order, supra.
See generally Consolidated Communications of Fort Bend Co. v. Public
Utility Commission of Texas, 497 F.Supp.2d 836 (W.D. Tex. 2007) (holding
that Sprint's provision of service similar, if not identical, to the
service at issue here was "telecommunications service," despite the
absence of a state tariff).
The segment of the "public" to which the Comcast and Bright House
Competitive Carriers seek to provide telecommunications consists of
sophisticated entities - other carriers - knowledgeable about state
regulatory processes and the ramifications of state certificates and
interconnection agreements. See, e.g.,Supp. Davis Aff. at P: 5; Supp.
Johnson Aff. at P: 9. We note that, had the Comcast and Bright House
Competitive Carriers simply posted on their websites some indication of
the general availability of the telecommunications they provide to their
affiliates, Verizon might not have challenged their status as
"telecommunications carriers." See generally Appropriate Framework for
Broadband Access to the Internet Over Wireline Facilities, Report and
Order and Notice of Proposed Rulemaking, 20 FCC Rcd 14853, 14901, P: 90
(2005) (subsequent history omitted) (holding that wireline broadband
providers that choose to offer the transmission component of a wireline
broadband Internet access service as a telecommunications service may do
so without filing tariffs setting forth the rates, terms, and conditions
under which they will provide that transmission, but only if the providers
"include those rates, terms, and conditions in generally available
offerings posted on their websites").
Verizon entered into interconnection agreements with the Comcast and
Bright House Competitive Carriers, which Verizon is statutorily obligated
to do only with "telecommunications carriers," and these agreements were
approved by the state commissions, and made public, pursuant to section
252 of the Act. See, e.g., 47 U.S.C S:S: 251(a)(1), 251(c)(2), 252(a);
Complaint at Ex. B, P:P: 45-61; Ex. E at P: 3. We also note that Verizon
did not draw any distinctions between the services provided to Time Warner
by Sprint - which Verizon admits is a telecommunications carrier - and
those provided to Comcast and Bright House by the Comcast and Bright House
Competitive Carriers. See, e.g., Complaint at Ex. B, P: 7, Ex. E at 1-2;
Bright House Supplemental Statement, File No. EB-08-MD-002 (filed Mar. 10,
2008) at 3, Ex. 1 at 2-4.
Abbott Laboratories v. Young, 920 F.2d 984, 987 (D.C. Cir. 1990); see
Common Cause v. Federal Election Commission, 842 F.2d 436, 441 (D.C. Cir.
1988) (upholding agency decision to interpret the same term - "name" -
differently in two Federal Election Campaign Act provisions).
Goldstein v. Securities and Exchange Commission, 451 F.3d 873, 878 (D.C.
Declaration of Jeffrey Eisenach, File No. EB-08-MD-002 (filed Feb. 29,
See, e.g., Answer at 56-58; Opening Brief of Verizon at 7-9; Comments of
Verizon in Support of Recommended Decision at 24-29. Verizon points out,
and Complainants acknowledge, that Complainants typically require
customers to contact them directly to cancel video or broadband Internet
access service; and when customers do so, Complainants offer incentives to
remain customers in some instances. Letter from Matthew A. Brill to
Marlene Dortch, Secretary, Federal Communications Commission, File No.
EB-08-MD-002 (filed Mar. 6, 2008). In Verizon's view, because Complainants
are allowed to engage in such retention marketing of their video and
Internet services, Verizon should be allowed to engage in retention
marketing of its voice service.
See 1998 Slamming Order, 14 FCC Rcd at 1572, 1575-76, P:P: 106, 109; CPNI
Reconsideration Order, 14 FCC Rcd at 14449-50, P: 77; CPNI 3rd Report &
Order, 17 FCC Rcd at 14918-19, P: 134; Third Slamming Reconsideration
Order, 18 FCC Rcd at 5110, P: 28. For just one example, the Commission
has already acknowledged what Verizon's economist principally asserts -
that in the short term retention marketing may benefit some consumers.
CPNI Reconsideration Order, 14 FCC Rcd at 14452-53, P:P: 84-85. The
Commission went on to hold, nevertheless, that retention marketing's
long-term harm to competition in the market as a whole outweighs any
short-term benefits to individuals. Id. Moreover, Verizon's economist
simply assumes, with no support, that material competition in the
residential voice market would continue to exist despite the barriers to
competition that retention marketing would entail.
Verizon has not identified any analogue to section 222 in Title I or Title
VI or any other part of the Act.
Opening Brief of Verizon at 9. See, e.g., Comments of Verizon in Support
of Recommended Decision at 30-31.
Opening Brief of Verizon at 10.
Opening Brief of Verizon at 9 (citing Central Hudson Gas & Elec. Corp. v.
Public Serv. Comm'n, 447 U.S. 557 (1980)).
1998 Slamming Order, 14 FCC Rcd at 1573-75, P:P: 107-111.
47 U.S.C. S:S: 154(i), 154(j), 201(b), 208, 222, and 303(r).
47 C.F.R. S:S: 1.720-1.736.
47 U.S.C. S:S: 154(i), 154(j), 201(b), 208, 222, and 303(r).
47 C.F.R. S:S: 1.720-1.736.
In the Matter of Bright House Networks, LLC, et al. v. Verizon California,
Inc., et al., File No. EB-08-MD-002, Recommended Decision, DA 08-860 (EB
rel. Apr. 11, 2008) (Recommended Decision).
Joint Statement of Commissioners Robert M. McDowell and Jonathan S.
Adelstein Concurring, Comcast Corporation Request for Waiver of Section
76.1204(a)(1) of the Commission's Rules, CSR-7012-Z, Implementation of
Section 304 of the Telecommunications Act of 1996: Commercial Availability
of Navigation Devices: Application for Review, CS Docket No. 97-80,
Memorandum Opinion and Order, 22 FCC Rcd 17113 (2007).
Statement of Commissioner Robert M. McDowell, Appropriate Regulatory
Treatment for Broadband Access to the Internet Over Wireless Networks, WT
Docket No. 07-53, Declaratory Ruling, 22 FCC Rcd 5901 (2007).
Letter from Aaron M. Panner, Counsel to Verizon, to Marlene H. Dortch,
Secretary, FCC, File No. EB-08-MD-002, at 1 (filed June 20, 2008).
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Federal Communications Commission FCC 08-159
Federal Communications Commission FCC 08-159