******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Jay Febrer, ) ) Complainant, ) ) v.) File No. E-94-35 ) Sprint Corporation a/k/a ) Sprint Communications Company L.P.,) ) Defendant. ) MEMORANDUM OPINION AND ORDER Adopted: December 31, 1997 Released: December 31, 1997 By the Chief, Common Carrier Bureau: I. INTRODUCTION 1. We have before us a formal complaint filed by Jay Febrer (Febrer) against Sprint Communications Company, L.P. (Sprint), pursuant to Section 208 of the Communications Act of 1934, as amended (the "Act"). Febrer seeks an order by the Commission declaring that Sprint violated its FCC Tariff No. 2 (Tariff No. 2) and North American Numbering Plan (NANP) guidelines when it terminated his 800-number service and use of the number "800-PORTFOLIO." Additionally, Febrer requests a Commission order directing Sprint to restore his 800-number service, to re-issue the number 800- PORTFOLIO to him, and to compensate him for damages allegedly suffered as a result of the loss of the number. Sprint filed an answer denying the allegations. For the reasons set forth below, we deny Febrer's complaint. II. BACKGROUND 2. Febrer is an individual in the business of telephone marketing through the use of 800 numbers. Febrer subscribed to Sprint's 800-number service, and obtained the number 800-767-8365, which he intended to promote as 800-PORTFOLIO in connection with his telemarketing operations. The record does not state when Febrer obtained 800-PORTFOLIO or to what extent he used the number prior to its disconnection. Sprint is a communications common carrier that provides both interstate and international service, including 800 service, pursuant to tariffs filed with the Commission. 3. In January 1994, Febrer initiated this complaint proceeding against Sprint alleging that on approximately June 10, 1992, Sprint disconnected Febrer's 800-number service and use of 800- PORTFOLIO. In his complaint, Febrer seeks re-issuance of 800-PORTFOLIO, compensatory damages in the amount of one hundred million dollars ($100,000,000), and punitive damages in the amount of one hundred million dollars ($100,000,000) for injuries allegedly sustained as a result of the termination of the number. 4. To facilitate resolution of the issues addressed in the complaint, the Bureau held a status conference for all parties on October 25, 1994. Neither Febrer nor his counsel attended the meeting or provided notice that they would not be in attendance. After contacting Febrer and his counsel, the Bureau learned that Febrer's counsel no longer represented him and that Febrer would be representing himself. 5. Subsequently, the Bureau rescheduled the status conference for April 20, 1995. Per Febrer's request, the Bureau provided him with a translator, because English is not his first language. At this conference, the Bureau learned for the first time, that Febrer initially filed an action challenging termination of 800-PORTFOLIO in the United States District Court for the Southern District of New York. To determine whether the District Court referred the case to the Commission for resolution of particular issues, the Bureau requested a copy of the litigation commenced in District Court. The Bureau subsequently learned that the District Court did not refer the action, but instead granted Sprint's motion to stay the proceeding. 6. On April 25, 1995, the Bureau sent a letter to each party summarizing the items discussed during the status conference and requesting documents from each party. Specifically, the Bureau requested that Febrer provide the following documentation to support his claim: a sworn statement that his complaint was factually accurate; evidence of expenses incurred in marketing 800-PORTFOLIO for which Febrer wished to be compensated; and copies of cancelled checks (or similar evidence) of payments to satisfy his account with Sprint. The Bureau directed Sprint to provide the following information: an affidavit supporting Sprint's answer; copies of Sprint's tariff then in effect; and any and all other documents, such as letters to Febrer, on which Sprint intended to rely. The Bureau provided that each party would be permitted to respond to the documents submitted as a result of the status conference and letter requesting documents. 7. Both Febrer and Sprint timely responded to the Bureau's requests for information and documentation. Febrer wrote a letter to the Bureau reiterating his requested relief, and provided a copy of a cancelled check made payable to Sprint dated June 13, 1992, in the amount of $45 as well as a copy of an invoice from Sprint for billing in August 1992. Febrer did not provide documentation of his efforts to market 800-PORTFOLIO or the costs incurred in the use of the number. Furthermore, Febrer did not file a sworn statement supporting his complaint. Sprint provided the Bureau with a verification of its answer and copies of Sections 3.16, 3.17, and 3.23 of Tariff No. 2, which discuss company procedures for terminating telephone service. Neither party provided any documentation to support a claim that notice had or had not been given to Febrer. 8. Both parties filed a response to the above letters and documents. Febrer reiterated that he had timely paid for Sprint's service and further stated that Sprint reissued 800-PORTFOLIO to a different party within one month of removing the number from his use. Sprint responded to Febrer's letter, stating that the $45 check Febrer supplied in his May 19, 1995 letter to demonstrate timely payment for Sprint's service, was in fact payment for three months of service, at least two months of which were overdue. Additionally, Sprint contends, the line on which Febrer's 800 service terminated had been disconnected prior to Sprint's termination of 800-PORTFOLIO. Therefore, Sprint argues, it could not have delivered traffic to Febrer even if he had maintained his subscription to 800- PORTFOLIO. III. DISCUSSION A. Alleged Violations of Sprint's Tariffs 1. Notice and Just Cause a. Contentions of the Parties 9. Febrer contends that Sprint terminated his use of the number 800-PORTFOLIO without notice to him or just cause for termination and therefore violated its tariffs and its agreement with Febrer. Febrer relies on Sections 3.17 and 3.23 of Tariff No. 2 to support his claim that Sprint was required to provide him with advance written notification prior to terminating his service and the use of 800-PORTFOLIO. Febrer alleges that he did not receive any written notice from Sprint of its intention to terminate service or the number 800-PORTFOLIO, either within the thirty (30) days specified in Section 3.17, or the ninety (90) days allegedly required to terminate 800 number service. 10. Additionally, Febrer contends that Sprint did not have just cause to terminate 800- PORTFOLIO. Febrer argues that his cancelled check dated June 13, 1992, made payable to Sprint, supports his claim that he timely paid for 800 service. Febrer further contends that he continued to receive statements of 800 number service from Sprint even after the number had been disconnected. 11. In its answer to the complaint, Sprint admits that Febrer subscribed to its 800 service, but denies that it disconnected the number without appropriate notice to Febrer and without just cause. Additionally, Sprint contends that Febrer has failed to state a valid cause of action under the Act, and moreover, that Febrer's claims that Sprint violated its tariffs are "based upon a clear misreading of the applicable tariff provision." 12. Sprint argues that it provided adequate written notice of its intent to terminate 800- PORTFOLIO, as required by its tariffs. According to Sprint, a carrier must provide written notice thirty days prior to disconnection, which Sprint in fact provided. Sprint argues that Section 3.23 authorizes Sprint to terminate a customer's 800 number if that customer does not use the number within the first ninety days of issuance; it is not a requirement that Sprint provide its 800 number customers with ninety days notice prior to termination. 13. Sprint states that it provided Febrer with notice of potential termination by including a statement on his monthly invoice that his account was past due and that service "may be disconnected" if "payment is not received within 30 days of invoice date." Sprint further contends that its customer service group attempted to contact the "phone number of record upon which the 800 service was carried, and heard a recorded announcement that the number had been disconnected and was no longer in service." 14. Sprint also argues that it properly disconnected 800-PORTFOLIO because payment for the service was thirty (30) days past due. In support of its position, Sprint relies on Section 3.16 of its tariff, which permits Sprint to "cancel or discontinue service for non-payment of any sum due to the carrier for more than 30 days after the rendition of service." Sprint states that prior to terminating 800- PORTFOLIO on June 10, 1992, Sprint examined Febrer's payment history, and discovered that Febrer had failed to pay the basic $15 monthly charge for the months of April and May of 1992. Sprint contends that the $45 check submitted by Febrer "confirms" that Febrer's account "was at least two months past due at the time Sprint terminated" his service. Additionally, Sprint argues, Febrer went for periods of nine months, three months, and four months without making any payments. b. Decision 15. It is well established that in a formal complaint proceeding pursuant to Section 208 of the Act, the complainant has the burden of proof. For the reasons discussed below, we conclude that Febrer has failed to carry his burden in this case. 16. Under the Commission's general pleading and format requirements, formal complaints against common carriers must, inter alia, contain a complete statement of facts, that if true, are sufficient to constitute a violation of the Act or Commission rule or order. The rules provide that facts must be supported by affidavit or other relevant documentation. The rules also encourage complainants to describe "fully and clearly the specific act or thing complained of, together with such facts as are necessary to give a full understanding of the matter, including relevant legal and documentary support." Complainants have the right to respond to affirmative defenses raised by defendants in their answers, and both complainants and defendants may initiate limited self-executing discovery to develop information necessary to resolve material questions of fact. 17. Although Febrer's complaint alleged a violation of the Act, it contained neither a complete statement of facts nor documentation sufficient to support the finding of a violation of the Act or of a Commission rule or order. Nonetheless, because Febrer pursued this action as a pro se complainant, the Bureau endeavored to ensure that he had adequate opportunity to provide the necessary documentation to support his claims. During the April 20, 1995 status conference, and in the April 25, 1995 staff letter, the Bureau explained to each party what information would be needed to support its claims. Additionally, the Bureau recognized that Febrer may have some difficulty with the English language, and consequently, granted Febrer's request for a bilingual Commission staff person to assist him during the status conference. Despite these efforts, Febrer has not made the necessary presentation. 18. Febrer's principal claim is that Sprint failed to provide advance written notice, as required by its tariffs, prior to terminating his use of 800-PORTFOLIO and that Sprint terminated 800- PORTFOLIO without cause. Febrer seeks to support this claim largely on his own undocumented assertions that he was in good financial standing with Sprint and that he never received notice of termination. Febrer cites to Sections 3.17 and 3.23 of Tariff No.2, arguing that notice is required prior to termination. It is unclear, however, what Febrer asserts to be sufficient notice for such termination, as each tariff states a different time period. 19. Independent of Febrer's failure to state with specificity the notice to which he claims he was entitled prior to disconnection, we find that Febrer has not supported his claim that Sprint failed to provide him with advance written notification prior to terminating 800-PORTFOLIO. Sprint's tariffs provide that Sprint, by written notice to the subscriber, may terminate service immediately for non- payment of any sum due to it for service "for more than 30 days beyond rendition of the bill." In this case, according to Sprint's answer, it appears that Sprint provided written notice to Febrer by stating on the monthly invoice that Febrer's service was subject to disconnection for nonpayment. Febrer has not provided credible evidence to refute Sprint's assertion that it provided notice, such as a copy of the telephone bills for the time period in question indicating that Sprint did not provide such notice. Accordingly, we find that Febrer has not met his burden of proof concerning his claim of failure to provide notice. Additionally, we agree with Sprint that Febrer misconstrues Section 3.23 of its tariff. That section specifically states "[i]f the 800 service telephone number is not used by callers . . . within ninety (90) days of activation of the 800 number," Sprint may remove the number from that customer's use. That section does not require ninety days notice prior to termination for non-payment, but instead allows Sprint to terminate the number if it is not used within the first ninety days after installation. 20. We also find that Febrer has not made a prima facie showing to support his contention that Sprint terminated his service and use of 800-PORTFOLIO without just cause. According to Section 3.16 of Tariff No. 2, Sprint may discontinue service because of non-payment of any sum due to Sprint after 30 days "beyond the rendition of the bill for such service." During the status conference on April 20, 1995, the Bureau specifically explained to Febrer that he must provide documentation to support his claim that he was in good financial standing with Sprint at the time Sprint terminated his use of the number 800-PORTFOLIO. Febrer's only documentation to support his claim of payment is a cancelled check dated June 13, 1992, made payable to Sprint in the amount of forty-five dollars ($45). Based on the evidence in the record, it appears that Febrer tendered this check three days after his 800 service was terminated. Febrer did not provide other checks evidencing continued payment to Sprint nor invoices stating the amount due. Sprint contends that this $45 check represents payment for three months of service at fifteen dollars ($15) per month, at least two months of which were past due. Thus, Sprint contends, because Febrer's account was over 30 days past due, it had just cause to terminate Febrer's service and use of 800-PORTFOLIO. Non-payment is an explicit basis for termination of service under Tariff No. 2. The check Febrer provided to support his claim that he timely paid for 800 service, tendered three days after termination of his 800 service, is insufficient evidence to rebut Sprint's claim that Febrer's account was over 30 days past due at the time he tendered the $45 check. Therefore, we find that Febrer has not sustained the burden of proof as to termination without just cause. 2. Number Reassignment a. Contentions of the Parties 21. Febrer also alleges that Sprint reassigned 800-PORTFOLIO to another customer within one month after removing the number from his use, and therefore violated the terms of its tariffs and FCC rules. Febrer contends that Sprint's tariffs require it to "age" the disconnected 800 number for six months prior to reassignment, and that the original assignee of that number has three months from the date of disconnection to reconnect the number. Febrer contends that he was denied the opportunity to reconnect, because the number was reassigned to someone else within one month after termination. Additionally, Febrer alleges that this reassignment violated his agreement with Sprint, which allegedly gave him "sole and exclusive use and benefit of the . . . number." After disconnection of the number, Febrer contends that he attempted to recover 800-PORTFOLIO, but Sprint refused to reissue the number. 22. Sprint admits that Febrer requested the return of 800-PORTFOLIO, but denies that it must re-issue that number to Febrer. Sprint argues that, although "it generally does not re-issue the 800 number of a customer whose service has been disconnected (either voluntarily or involuntarily) for a certain period of time, it will re-issue the number within a shorter period if the facts relevant to the particular customer so warrant, and if the new customer signs a letter agreeing to certain conditions." Sprint avers, however, that under Section 3.23, Tariff No. 2, customers do not have any "ownership interest or proprietary right" in the assigned 800 number. Furthermore, Sprint argues that its tariffs are specifically designed to prevent the hoarding of and trafficking in 800 numbers. Therefore, Sprint argues, its tariffs are "just and reasonable" and it is not required to reissue the number. b. Decision 23. Febrer alleges that Sprint reassigned the number within three months of disconnection, and therefore violated its tariffs. Febrer, however, has not met his burden of proof with regard to demonstrating that Sprint reassigned 800-PORTFOLIO to a different customer within three months of terminating Febrer's use of the number. Therefore, we find that Febrer has not demonstrated that Sprint violated its tariffs. At the status conference, the Bureau requested Febrer to provide specific documentation evidencing that Sprint reassigned the number in violation of its tariffs. In response to this request, Febrer reiterated that Sprint gave the number to a different party. Febrer, however, did not provide any information to support this claim, such as a sworn affidavit that he had called the number to confirm its reassignment, nor did he make any attempts to obtain such information from Sprint through discovery. B. NANP Guidelines 1. Contentions of the Parties 24. Febrer further alleges that Sprint's disconnection of 800-PORTFOLIO violated the requirements stated in the North American Numbering Plan (NANP), which, he argues, governs Sprint's 800 number service. Specifically, Febrer cites to Sections 3.6, 3.7, and 4.5 of NANP, alleging that Sprint unlawfully reassigned the 800-PORTFOLIO number without replacing that number in the common assignment pool; that Sprint did not remove the number for just cause and with reasonable notice; and that Sprint did not "age" the number after its disconnection. 25. Sprint disputes that it is liable to Febrer because of alleged violations of the NANP. Sprint contends that it offers 800 number service through tariffs filed with the Commission and that the NANP guidelines do not regulate its offering of service. As such, Sprint is not required to "age" 800 numbers prior to reassignment. 2. Decision 26. Febrer's contention that Sprint violated the NANP guidelines is without merit. We agree that Sprint must provide service as specified by its tariffs filed with the Commission, which, as we have already found, it did. The NANP guidelines are just that-- guidelines, not enforceable requirements. Furthermore, pursuant to Section 208 of the Act, the Commission has the authority to review those complaints brought before us alleging a violation of the Act, our rules, or orders; potential violations of the NANP guidelines are not within our jurisdiction, unless the same requirements have been adopted explicitly by the Commission. As such, we will not examine whether Sprint properly placed the number in the common assignment pool pursuant to NANP. 27. We note that although the Commission has not adopted the Bellcore guidelines cited by Febrer, the Commission recently adopted rules pertaining to the aging requirements for disconnecting toll free numbers. Febrer, however, has not argued that Sprint violated these rules, instead basing his claim on an alleged violation of NANP guidelines. We emphasize, as noted above, that pursuant to Section 208 of the Act, and our rules pertaining to formal complaints, a complainant must allege a violation of a specific section of the Act, our rules, or orders upon which relief could be granted. Nonetheless, even if Febrer had alleged a violation of these Commission rules, such rules would not have assisted Febrer's claim for several reasons. First, the rule is not applicable to the instant case because Sprint allegedly reassigned the number prior to the effective date of the aging requirements adopted by the Commission. Second, the rule does not state a minimum period of time that a number must remain in disconnect status; instead, the rule states a maximum period that a toll free number may remain in disconnect status-- four months after disconnection. Moreover, even if these rules were applicable in the instant case, we find that Febrer did not provide any documentation to support his claim that the number had been reassigned within a particular amount of time nor did he seek any information to support his claim through discovery. IV. PROCEDURAL MATTERS 28. Sprint's Motion to Dismiss. Sprint filed a motion to dismiss United Telecom, Inc. and Sprint Corporation as parties to the complaint on the ground that they are not engaged in providing telecommunications services. Febrer did not oppose Sprint's motion to dismiss. 29. We are granting Sprint's motion to dismiss United Telecom, Inc. and Sprint Corporation as parties to the complaint. Because Sprint's motion is unopposed and because dismissing the complaint with respect to these two parties still allows Febrer's complaint to proceed against the proper party to this action (Sprint), we find that the removal of United Telecom, Inc. and Sprint Corporation does not impair resolution of Febrer's complaint. 30. Febrer's Motion for Summary Judgment. On August 8, 1994, Febrer filed a notice of motion requesting that the Commission grant summary judgment in his favor because Sprint failed to answer his complaint. Sprint filed an opposition to this motion, with affidavits supporting its position that it never received the Febrer complaint. 31. Pursuant to Commission rules, the complaint was served on Sprint, requiring Sprint to file an answer with the Commission by March 21, 1994. Subsequently, Febrer through counsel, notified the Commission that Sprint had not answered the complaint. Febrer, through counsel, then filed the instant motion for summary judgment. After learning that Sprint never received the complaint, the Commission forwarded a copy to Sprint on August 6, 1994, which Sprint timely answered thirty (30) days later on September 6, 1994. Because Sprint did not receive the complaint when initially served, and because Sprint responded in a timely manner upon receiving the subsequently served complaint, we deny Febrer's motion for summary judgment, and therefore we have ruled on the merits of the complaint. V. CONCLUSION AND ORDERING CLAUSES 32. For the reasons stated above, we conclude that Febrer has failed to satisfy his burden of demonstrating that Sprint's termination of Febrer's use of 800-PORTFOLIO occurred without notice or just cause, or that Sprint improperly reassigned 800-PORTFOLIO. 33. Accordingly, IT IS ORDERED, pursuant to Sections 1, 4(i), 4(j), and 208 of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 154(j), and 208, and the authority delegated in Sections 0.91 and 0.291 of the Commission's rules, 47 C.F.R.  0.91, 0.291, that the complaint of Jay Febrer IS DENIED. 34. IT IS FURTHER ORDERED that Sprint's Motion to Dismiss United Telecom, Inc. and Sprint Corporation as parties to the complaint IS GRANTED. 35. IT IS FURTHER ORDERED that Febrer's Notice of Motion IS DENIED. 36. IT IS FURTHER ORDERED that the above-captioned complaint IS DISMISSED WITH PREJUDICE and the proceeding IS TERMINATED. FEDERAL COMMUNICATIONS COMMISSION A. Richard Metzger, Jr. Chief, Common Carrier Bureau