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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Cellexis International, Inc., )
) File Nos. WB/ENF-F-97-001
Complainant, ) WB/ENF-F-
) 97-002
v. ) WB/ENF-F-
) 97-003
Bell Atlantic NYNEX Mobile )
Systems, Inc., )
Cellco Partnership, and )
Washington D.C. SMSA Limited )
Partnership, )
)
Defendants.
MEMORANDUM OPINION AND ORDER
Adopted: December 12, 2001 Released: December 19,
2001
By the Commission:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we deny a formal
complaint filed by Cellexis International, Inc. (``Cellexis'')
against Bell Atlantic NYNEX Mobile, Inc.,1 Cellco Partnership
(``Cellco''), and Washington D.C. SMSA Limited Partnership
(``Washington SMSA'') (collectively, ``Defendants'') pursuant to
section 208 of the Communications Act of 1934, as amended
(``Act'').2 In short, the complaint alleges that Defendants
violated sections 201(b), 202(a), 251(a), and 332(c)(1)(B) of the
Act3 by refusing to continue to interconnect their cellular
networks with Cellexis's switch so that Cellexis could provide
resale cellular service.
2. At this juncture, Cellexis's only remaining claim is
for violation of section 202(a) of the Act.4 As discussed below,
we deny the section 202(a) claim, because Cellexis has failed to
show that Defendants provided a ``like communication service'' to
other customers that Defendants refused to provide to Cellexis.
II. BACKGROUND
II.A. The Parties and Their Business Relationship
3. Cellexis is an Arizona corporation that provides
commercial mobile radio service (``CMRS'') as an agent for
facilities-based CMRS providers or as a reseller of their
services.5 Washington SMSA and Cellco provide facilities-based
CMRS as communications common carriers in the Washington, D.C.
and Baltimore, Maryland service areas, respectively, in
accordance with licenses from this Commission.6 Bell Atlantic
Mobile is a Delaware corporation that holds majority ownership
interests in Washington SMSA and Cellco.7 It is the managing
general partner of Cellco, which, in turn, is the general partner
of Washington SMSA.8 Bell Atlantic Mobile does not itself
provide common carrier services, however.9
4. In order to operate its system, Cellexis must enter
into agreements with other carriers that provide Cellexis with
access to local cellular phone numbers and airtime.10 Cellexis
and Defendants entered into such an agreement in the fall of 1993
with respect to the southwest United States.11 With Defendants'
consent, in early 1994, Cellexis began providing prepaid cellular
services in the Phoenix, Arizona market, utilizing proprietary
technology involving a computer chip installed in a customer's
cellular telephone that shut off the phone when prepaid airtime
ran out.12 Thereafter, Cellexis developed technology to provide
prepaid cellular service that did not require any modifications
of a customer's phone. Specifically, a switch and billing
platform in Cellexis's office was connected to Defendants' mobile
telephone switching office (``MTSO''), which permitted calls to
and from the mobile phones of prepaid cellular customers to be
routed through Cellexis's billing platform. As a result,
Cellexis could record usage on a real-time basis and disallow
service when a customer used all of his or her prepaid airtime.13
5. In approximately June 1995, Defendants and Cellexis
entered into discussions concerning Cellexis's offering of a
prepaid cellular service in the Washington-Baltimore area, as a
reseller of Defendants' services, through interconnection between
Defendants' cellular network and Cellexis's switch.14 When
negotiations between the parties ended in late 1995, Cellexis
believed that it and Defendants already had entered into a
binding contract calling for such interconnection.15 Defendants,
on the other hand, disagreed and sought further negotiations and
modifications to Cellexis's proposals.16 Cellexis subsequently
filed a complaint in the United States District Court for the
District of Columbia seeking to enforce the alleged
interconnection agreement with Defendants.17 The lawsuit was
resolved prior to decision by a ``Memorandum of Understanding''
executed by the parties on February 20, 1996, in which Cellexis
and Defendants agreed to enter into a temporary interconnection
agreement.18
6. On May 20, 1996, Cellexis and Defendants executed a
``Service Trial Agreement'' (``Agreement''), which permitted
Defendants ``to conduct a trial to evaluate a possible Bell
Atlantic NYNEX Mobile network offering and to evaluate the
marketing of such network offering to Cellexis and to other
entities who might wish to offer a similar service and to
determine whether Bell Atlantic Mobile NYNEX has any further
interest in making such an offering available in the Washington
D.C./Baltimore market or elsewhere.''19 The Agreement
specifically provided for the interconnection of Cellexis's
switch with Defendants' MTSOs.20 According to the Agreement, the
service trial ``commenced on or about February 20, 1996 and . . .
end[ed] on or about February 19, 1997.''21 Although neither
party was obligated to renew the Agreement, Defendants were
required to give Cellexis ninety days' notice if they intended
not to renew.22
7. Cellexis began providing prepaid cellular services in
the Washington, D.C. and Baltimore, Maryland areas on or about
February 20, 1996.23 On October 11, 1996, Defendants notified
Cellexis that they intended to terminate the Agreement and
service thereunder on February 19, 1997.24
II.B. The Instant Proceeding
8. Cellexis filed its Complaint with the Commission on
December 20, 1996, alleging that (1) Defendants' refusal to
continue interconnection with Cellexis was ``unreasonably
discriminatory,'' in violation of section 202(a) of the Act;25
(2) Defendants' decision to terminate interconnection with
Cellexis violated the ``express interconnection requirement''
contained in section 251(a) of the Act;26 (3) Defendants' refusal
to continue interconnection was ``unjust and unreasonable,'' in
violation of section 201(b) of the Act and the Hush-A-Phone line
of cases interpreting that section;27 and (4) Defendants' refusal
of Cellexis's ``reasonable interconnection request'' violated
sections 332(c)(1)(B) and 201(a) of the Act.28 Defendants'
Answer sets forth four affirmative defenses, i.e., that (1) the
conduct alleged, even if true, is lawful and justified;29 (2)
CMRS providers are not required to provide physical
interconnection arrangements with resellers, and requiring such
interconnection would violate section 332 of the Act and the
Commission's policies;30 (3) the Agreement specifically permits
Defendants to terminate their interconnections with Cellexis, and
the Commission is without jurisdiction to modify, extend, or
enforce a private contract;31 and (4) Cellexis's claims are
barred by the equitable doctrines of waiver, estoppel and/or
unclean hands.32
III. DISCUSSION
III.A. The Commission Has Authority to Adjudicate
Cellexis's Claims.
9. Defendants correctly note that, pursuant to the
Agreement's terms, interconnection with Cellexis ``automatically
terminate[d]'' on February 19, 1997, and neither party was
``under any obligation to renew'' the Agreement.33 We do not
agree with Defendants, however, that the termination provisions
of the Agreement preclude Cellexis's Complaint or deprive us of
jurisdiction to consider it.34 Although the Agreement clearly
does not obligate Defendants to interconnect with Cellexis after
February 19, 1997, Cellexis did not therein waive its rights
under the Communications Act. The Agreement, accordingly, also
does not alter whatever rights to interconnection Cellexis may
have under the Act. We concur with Cellexis that Defendants'
statutory interconnection obligations, whatever they may be,
exist independent of the Agreement's terms.35 Therefore, we have
authority to consider Cellexis's assertions that Defendants
violated the Act by refusing to interconnect.
III.B. Defendants' Conduct Did Not Violate Section 202(a)
of the Act, Because the Services that Defendants
Provided to Other Customers Were Not ``Like'' the
Service Defendants Provided to Cellexis.
10. Cellexis's only remaining claim arises under section
202(a) of the Act,36 which makes it unlawful for any common
carrier to discriminate unjustly or unreasonably in its provision
of ``like communication service.''37 The Commission and the
courts have held that a three-step inquiry is required to
determine whether a violation of section 202(a) has occurred:
(1) whether the services at issue are ``like''; (2) if they are,
whether there are differences in the terms and conditions
pursuant to which the services are provided; and (3) if so,
whether the differences are reasonable.38 When a complainant
establishes the first two components, the burden of persuasion
shifts to the defendant carrier to justify the discrimination as
reasonable.39
11. Cellexis maintains that Defendants have unlawfully
refused to provide it with a communication service that they
provide to other customers. Thus, under the forgoing analysis
Cellexis bears the initial burden of demonstrating the
``likeness'' of the service it seeks to the services that
Defendants provided to others. A ``functional equivalency'' test
guides our assessment of whether Cellexis has satisfied that
burden. We have described the ``functional equivalency'' test as
follows:
This test looks to whether there are any material
functional differences between the services. An
important aspect of the test, as it has evolved,
involves reliance upon customer perception to help
determine whether the services being compared provide
the same or equivalent functions. The test asks
whether the services at issue are ``different in any
material respect'' and requires the Commission to
examine both the nature of the services and the
customer perception of the functional equivalency of
the services. The test presumes that not all
differences between the services make them a priori
unlike. Rather, the differences must be functionally
material or, put another way, of practical significance
to customers.40
12. As a preliminary matter, we reject Defendants'
assertion that an introductory clause of the Agreement, which
characterizes Cellexis's service as ``requir[ing] a unique
network offering of [Defendants'] cellular network,''41
constitutes a ``complete bar to Cellexis' claim.''42 Although
the quoted language may demonstrate that the parties, at the time
they executed the Agreement, perceived the interconnection
afforded to Cellexis to be ``unique'' in some unidentified
respects, the recital alone does not govern whether the service
Cellexis seeks differs in functionally material respects from
services offered to other customers. Accordingly, we turn to the
allegedly comparable services - ``Mobile Minutes''43 and ``Mobile
Direct.''44
III.B.1. Mobile Minutes
13. Mobile Minutes is a prepaid cellular service that
Defendants sell to the public.45 Although Mobile Minutes is
similar to the prepaid service Cellexis offers to the public,
Cellexis does not seek to purchase Mobile Minutes from
Defendants. Indeed, it is undisputed that Defendants offered
Cellexis the opportunity to purchase Mobile Minutes service for
resale, and that Cellexis declined the offer.46 Rather, the
service Cellexis seeks is interconnection of its switch with the
mobile switches of Washington SMSA and Cellco (i.e.,
interconnection like Cellexis received under the Agreement).47
Cellexis argues that this interconnection service is comparable
to (1) the manner in which Bell Atlantic Mobile purportedly
``allow[s] its own distribution arms to interconnect a switch to
its network'';48 and (2) the manner in which Defendants
interconnect their mobile network with a third-party billing
platform furnished by Boston Communications Group (``BCG'').49
We reject both claims.
14. First, Cellexis mischaracterizes Bell Atlantic Mobile
as a carrier furnishing interconnection service to its
affiliates. Although the pleadings generally describe the
conduct at issue in this case as being undertaken by all three
Defendants collectively,50 it appears that Bell Atlantic Mobile
is situated differently from its co-defendants. Specifically,
Bell Atlantic Mobile does not itself provide common carrier
services.51 It is, instead, the principal owner and effective
managing partner of Washington SMSA and Cellco, which themselves
provide common carrier service.52 Thus, Bell Atlantic Mobile
does not use Washington SMSA and Cellco as ``distribution arms''
and, in particular, does not provide Mobile Minutes through
interconnection with Washington SMSA and Cellco. Consequently,
Bell Atlantic Mobile does not interconnect with Washington SMSA
or Cellco in any way that is ``like'' the interconnection sought
by Cellexis.
15. Second, Cellexis's focus on the relationship between
Defendants and BCG is misdirected and irrelevant to a
discrimination analysis. Section 202(a)'s prohibition against
unreasonable discrimination pertains to the provision of ``like
communication service.''53 BCG, however, is not a customer
purchasing a service from Defendants. Rather, it is a vendor
selling facilities and technology to Defendants.54 Defendants,
in turn, utilize the facilities and technology to furnish Mobile
Minutes service to their customers, but, again, Cellexis does not
wish to purchase Mobile Minutes service.
16. In sum, Cellexis has not shown that Mobile Minutes is
``like'' the service sought by it from Defendants. Hence,
Cellexis's claim under section 202(a), based on Defendants'
provision of Mobile Minutes service to other users, must fail.55
III.B.2. Mobile Direct
17. Mobile Direct is a service offering of the Defendants
suitable for large corporate users. It provides an alternative
routing for mobile phones through the customers' PBXs or Centrex
office phone systems.56 Defendants advertise that, with the
service, ``local cellular phones operate like PBX/Centrex
extensions and allow direct access to any least-cost routing
capability [a] company has negotiated with [its] long distance
carrier.''57 For most Mobile Direct customers, special
programming in the Defendants' switches routes the customer's
mobile phone calls from the Defendants' network to the customer's
PBX using individual analog circuits.58 Three customers
nationwide, however, are provided a T-1 connection between
Defendants' network and their PBX.59
18. Cellexis argues that the service it sought from
Defendants was ``like'' Mobile Direct Service offered to others,
because ``[Defendants] provide similarly-situated [Mobile Direct]
customers with the same type of switch interconnection over a T-1
line that Cellexis seeks.''60 For the reasons described below,
we disagree.
19. T-1 lines are used to provide most telecommunications
service, and this sole similarity between Mobile Direct service
and Cellexis's service alone does not make the services
``functionally equivalent.'' Indeed, it is the purpose of a
technical configuration, not the configuration itself, that is
relevant in determining functional equivalence.61 In this case,
we find that the interconnection of Cellexis's system was
accomplished in a manner to meet Cellexis's unique needs, i.e.,
(1) to monitor the usage of its customers for all their calls on
a real-time basis; (2) to deny service immediately when customers
exhausted their prepaid usage; and (3) to restrict calls to the
Washington-Baltimore service areas.62
20. Specifically, although Mobile Direct service in a few
instances involves the use of a T-1 circuit interconnection
between a switch on Defendants' network and a switching device on
a customer's premises, there are a number of significant
differences between the facilities arrangements provided to
Mobile Direct customers (including those with T-1 connections)
and those required for Cellexis's service. First, Cellexis
utilized ``bottleneck'' call routing, in which all calls to or
from the mobile phones of its customers were routed through
Cellexis's switch, so that Cellexis could monitor usage and cut
off service to customers when necessary. In contrast, Mobile
Direct users do not require ``bottleneck'' routing through their
PBXs, and calls to and from these customers' mobile units also
may be completed over Defendants' network, in the same manner as
calls of its other subscribers, without transiting customers'
PBXs.63 Second, Cellexis's mobile phones were assigned
``pseudo'' numbers so that they could not be reached over the
public network without going through Cellexis's switch.64 By
contrast, the mobile phones of Mobile Direct customers are
assigned regular cellular phone numbers and may be called from
the public telephone network without transiting the customer's
PBX.65 Third, Cellexis's customers were able to make calls only
within the Washington-Baltimore service areas, not as roamers in
other markets. The mobile phones of Mobile Direct customers, on
the other hand, may be used to make calls while roaming in other
markets.66 Finally, Cellexis's service used Feature Group D
signaling to enable Cellexis rapidly to identify its customers
and their account balances prior to routing their calls. Mobile
Direct, however, employs traditional PBX-type signaling.67
21. Cellexis responds that these service differences were
imposed upon it by Defendants or that Defendants would make the
same features needed for its service available to other Mobile
Direct customers.68 It appears from the record, however, that
Defendants designed the service features and configuration of
Cellexis's service to meet Cellexis's unique requirements.69
Moreover, beyond its assertion regarding T-1 lines (which, as
explained above, has little persuasive force), Cellexis has not
shown that any Mobile Direct service configuration exists for any
other customer with features similar to those used by Cellexis.
22. In short, we conclude that Mobile Direct service
differs in functionally material respects from Cellexis's
service. Therefore, Mobile Direct service is not ``like'' the
service sought by Cellexis, and Cellexis's claim under section
202(a), consequently, must fail.
IV. ORDERING CLAUSES
23. Accordingly, IT IS ORDERED, pursuant to sections 1,
4(i), 4(j), 201(b), 202(a), 208, 251(a), and 332(c)(1)(B) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i),
154(j), 201(b), 202(a), 208, 251(a), and 332(c)(1)(B), that the
above-captioned complaint filed by Cellexis International, Inc.
IS DENIED IN PART, to the extent specified herein, and otherwise
IS DISMISSED AS MOOT.
24. IT IS FURTHER 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, that the ``Emergency
Motion for Temporary Relief'' filed by Cellexis IS DISMISSED AS
MOOT.
25. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i),
4(j), 201(b), and 208 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 151, 154(i), 154(j), 201(b), and 208, that
the letter-order issued in this proceeding on May 12, 1997 by the
Chief, Enforcement Division, Wireless Telecommunications Bureau,
as well as our Memorandum Opinion and Order denying BCG's
Application for Review and upholding the Bureau letter-order,
adopted on October 28 1998, 13 FCC Rcd 22467, ARE VACATED.
26. IT IS FURTHER ORDERED that this proceeding IS
TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
_________________________
1 In the caption of its complaint, Cellexis incorrectly
identified ``Bell Atlantic NYNEX Mobile, Inc.'' as ``Bell
Atlantic NYNEX Mobile Systems, Inc.'' Because subsequent
pleadings and orders in this proceeding continued to use
Cellexis's caption, it appears here as well.
Subsequent to the filing of the complaint, there were a
number of corporate mergers and name changes affecting Bell
Atlantic NYNEX Mobile, Inc. At present, the wireless systems of
Bell Atlantic Corporation operate under the name Verizon
Wireless. See Defendants' Supplemental Brief, File Nos. WB/ENF-
F-97-001, -002, -003 (filed May 29, 2001) (``Defendants'
Supplemental Brief'') at 4-5. In this order, however, we refer
to Bell Atlantic NYNEX Mobile, Inc. as ``Bell Atlantic Mobile.''
2 47 U.S.C. § 208.
3 47 U.S.C. §§ 201(b), 202(a), 251(a), and 332(c)(1)(B).
4 The parties agree that the Commission's recent decision
in Interconnection and Resale Obligations Pertaining to
Commercial Mobile Radio Service, Fourth Report and Order, 15 FCC
Rcd 13523, 13524, ¶ 1 (2000), Memorandum Opinion and Order on
Reconsideration, 16 FCC Rcd 10009, 10009, ¶ 1 (2001), resolves in
Defendants' favor Cellexis's claims under sections 201, 251, and
332 of the Act. Supplemental Brief, File Nos. WB/ENF-F-97-001,
-002, -003 (filed May 30, 2001) (``Cellexis's Supplemental
Brief'') at 3, 10; Defendants' Supplemental Brief at 2, 8-10;
Supplemental Reply Brief, File Nos. WB/ENF-F-97-001, -002, -003
(filed June 8, 2001) (``Cellexis's Supplemental Reply Brief'') at
2, 6-7; Defendants' Supplemental Reply Brief, File Nos. WB/ENF-F-
97-001, -002, -003 (filed June 8, 2001) (``Defendants'
Supplemental Reply Brief'') at 2. We hereby deem those claims
moot.
5 Formal Complaint, File Nos. WB/ENF-F-97-001, -002, -003
(filed Dec. 20, 1996) (``Complaint'') at ¶ 3; Answer, File Nos.
WB/ENF-F-97-001, -002, -003 (filed Jan. 24, 1997) (``Answer'') at
¶ 3.
6 Complaint at ¶ 4; Answer at ¶ 4; Defendants'
Supplemental Brief at 2.
7 Complaint at ¶ 4; Answer at ¶ 4.
8 Brief of Defendants Bell Atlantic Mobile, Inc., et al.,
File Nos. WB/ENF-F-97-001, -002, -003 (filed Dec. 11, 1997)
(``Defendants' Brief'') at 1 n.1.
9 See Letter from John T. Scott, III, counsel for
Defendants, to Howard C. Davenport, Chief, Enforcement Division,
Wireless Telecommunications Bureau, File Nos. WB/ENF-F-97-001, -
002, -003 (dated July 14, 1998).
10 Complaint at ¶ 9.
11 Id; Answer at ¶ 9.
12 Id.
13 Complaint at ¶ 10; Answer at ¶ 10.
14 Complaint at ¶ 13; Answer at ¶ 13.
15 Complaint at ¶ 14; Answer at ¶ 14.
16 Id.; Defendants' Brief at 3-4.
17 Id..; See Cellexis International, Inc. v. Bell Atlantic
Mobile Systems of Washington, Inc., Case No. 96-CV-185 (EGS)
(D.D.C.).
18 Complaint at ¶ 15; Answer at ¶ 15.
19 Complaint, Exhibit 1 (Agreement at 1).
20 Id., Exhibit 1 (Agreement at ¶ 6(a)).
21 Id., Exhibit 1 (Agreement at ¶ 2).
22 Id., Exhibit 1 (Agreement at ¶ 18(a)).
23 Complaint at ¶ 15; Answer at ¶ 15.
24 Complaint at ¶ 16; Answer at ¶ 16.
25 Complaint at ¶¶ 21-28.
26 Id. at ¶¶ 29-32.
27 Id. at ¶¶ 33-41 (citing Hush-A-Phone Corp. v. United States,
238 F.2d 266 (D.C. Cir. 1956)).
28 Id. at ¶¶ 42-45. Along with its Complaint, Cellexis filed
an ``Emergency Motion for Temporary Relief,'' which sought an
order prohibiting Defendants from terminating their
interconnection arrangements with Cellexis until the Commission
ruled on the Complaint. See Emergency Motion for Temporary
Relief, File Nos. WB/ENF-F-97-001, -002, -003 (filed Dec. 20,
1996) (``Emergency Motion'') at 2. Defendants opposed the
Emergency Motion. See Opposition to Motion for Temporary Relief,
File Nos. WB/ENF-F-97-001, -002, -003 (filed Jan. 7, 1997)
(``Opposition to Motion''). In order to remove the need for the
Commission to act on the Emergency Motion, Defendants agreed to
postpone termination of their interconnections with Cellexis for
a thirty-day period. See Letter from John T. Scott, III, counsel
for Defendants, to Howard C. Davenport, Chief, Enforcement
Division, Wireless Telecommunications Bureau, File Nos. WB/ENF-F-
97-001, -002, -003 (dated Feb. 13, 1997). Thereafter, Defendants
agreed to continue service to Cellexis's existing customers
pending resolution of the Complaint. See Letter from John T.
Scott, III, counsel for Defendants, to Howard C. Davenport,
Chief, Enforcement Division, Wireless Telecommunications Bureau,
File Nos. WB/ENF-F-97-001, -002, -003 (dated Mar. 13, 1997).
Cellexis maintains that its service nevertheless became
economically non-viable over time (as a result of customer
attrition and an inability to add new customers), and it
discontinued providing service in the Baltimore/Washington area
in April 1998. See Letter from John T. Scott, III, counsel for
Defendants, to Howard C. Davenport, Chief, Enforcement Division,
Wireless Telecommunications Bureau, File Nos. WB/ENF-F-97-001, -
002, -003 (dated May 18, 1997). This renders the Emergency
Motion moot.
29 Answer at 10-11.
30 Id. at 12-13.
31 Id. at 13-14.
32 Id. at 14. In addition, Defendants argue that the Complaint
should be dismissed because Washington SMSA no longer is a
defendant in this proceeding. Cellexis previously was a party to
litigation against GTE Corporation (``GTE'') in the United States
District Court for the District of Arizona. That litigation was
resolved pursuant to a settlement agreement in which Cellexis
agreed ``not to institute any proceeding . . . seeking
interconnection with wireless facilities owned by GTE or a GTE
partnership . . . .'' Letter from John T. Scott, counsel for
Defendants, to Howard C. Davenport, Chief, Enforcement Division,
Wireless Telecommunications Bureau, File Nos. WB/ENF-F-97-001, -
002, -003 (dated Feb. 7, 1997) (attached May 14, 1996 Settlement
Agreement between Cellexis and GTE at ¶ 7.3). On May 27, 1998,
the court held that the settlement agreement prohibited Cellexis
from pursuing the instant Complaint against Washington SMSA,
because GTE held a minority partnership interest in Washington
SMSA. The court also enjoined Cellexis from continuing the
prosecution of its Complaint ``as it pertains to the Washington
Partnership.'' See Letter from John T. Scott, III, counsel for
Defendants, to Howard C. Davenport, Chief, Enforcement Division,
Wireless Telecommunications Bureau, File Nos. WB/ENF-F-97-001, -
002, -003 (dated June 4, 1998) (citing GTE Mobilnet Service Corp.
v. Cellexis International, Inc., Civ-97-703-PHX-ROS (D. Ariz. May
21, 1998)). Accordingly, upon Cellexis's motion, the Complaint
against Washington SMSA was dismissed with prejudice. See Letter
from Frank G. Lamancusa, Deputy Chief, Market Disputes Resolution
Division, Enforcement Bureau, to Alfred M. Mamlet, James M.
Talens, and Matthew S. Yeo, counsel for Cellexis, and John T.
Scott, III, counsel for Defendants, File Nos. WB/ENF-F-97-001, -
002, -003 (dated Feb. 29, 2000). Defendants maintain that
Washington SMSA is ``an indispensable party,'' and that the
dismissal of the Complaint against it requires dismissal of the
entire Complaint. See Letter from John T. Scott, III, counsel
for Defendants, to Howard C. Davenport, Chief, Enforcement
Division, Wireless Telecommunications Bureau, File Nos. WB/ENF-F-
97-001, -002, -003 (dated July 14, 1998). In light of our
conclusion that Cellexis's complaint should be denied on the
merits, we need not rule on this issue.
33 Defendants' Brief at 46. See Complaint, Exhibit 1
(Agreement at ¶ 18(a)).
34 See Answer at 13.
35 See Final Reply, Cellexis International, Inc., File Nos.
WB/ENF-F-97-001, -002, -003 (filed Jan. 2, 1998) (``Cellexis's
Reply Brief'') at 6.
36 See note 4, supra.
37 47 U.S.C. § 202(a) (``It shall be unlawful for any common
carrier to make any unjust or unreasonable discrimination in
charges, practices, classifications, regulations, facilities, or
services for or in connection with like communication service . .
. .'').
38 See, e.g., Competitive Telecommunications Ass'n v. FCC, 998
F.2d 1058, 1061 (D.C. Cir. 1993); MCI Telecommunications Corp. v.
FCC, 842 F.2d 1296, 1303 (D.C. Cir 1988); Beehive Telephone, Inc.
v. Bell Operating Companies, 10 FCC Rcd 10562, 10567, ¶ 27
(1995); Metrocall, Inc. v. Worldcom, Inc., 15 FCC Rcd 10826,
10830 (Enf. Bur. 2000).
39 See National Communications Ass'n, Inc. v. AT&T Corp.,
238 F.3d 124, 129-30 (2nd Cir. 2001); Implementation of the
Telecommunications Act of 1996: Amendment of Rules Governing
Procedures to Be Followed When Formal Complaints Are Filed
Against Common Carriers, Report and Order, 12 FCC Rcd 22497,
22615, ¶ 291 & n.782 (1997), recon. denied, 16 FCC Rcd 5681
(2001); PanAmSat Corp. v. Comsat Corp., Memorandum Opinion
and Order, 12 FCC Rcd 6952, 6965, ¶ 34 n.90 (1997).
40 Beehive Telephone, Inc. v. Bell Operating Companies, 10 FCC
Rcd at 10567, ¶ 28 (1995). See also Ad Hoc Telecommunications
Users Committee v. FCC, 680 F.2d 790, 795-96 (D.C. Cir. 1982);
American Broadcasting Corp. v. FCC, 663 F.2d 133, 138-39 (D.C.
Cir. 1980).
41 Complaint, Exhibit 1 (Agreement at 1) (emphasis added).
42 Defendants' Brief at 26.
43 Complaint at ¶¶ 24-25.
44 Id. at ¶¶ 26-28.
45 Complaint at ¶ 24; Defendants' Brief at 25.
46 Defendants' Brief at 25, Attachment 2 (Letter from Gary
Stannek, Bell Atlantic Mobile, to Larry L. Day, Cellexis, dated
September 11, 1997); Opposition to Motion, Attachment 1 (Letter
from Katherine S. Abrams to Alfred M. Mamlet, dated December 16,
1996).
47 Cellexis's Reply Brief at 17-18 (``The interconnection that
[Bell Atlantic Mobile] provides to support its affiliates'
provision of Mobile Minutes is the functional equivalent of the
interconnection Cellexis seeks. . . . [Bell Atlantic Mobile]
offers its distribution arms an interconnection service that is
precisely the service Cellexis seeks.'') (emphasis added).
48 Final Brief of Cellexis International, Inc., File Nos.
WB/ENF-F-97-001, -002, -003 (filed Dec. 17, 1997) (``Cellexis's
Brief'') at 15 (citing Amendment of Parts 2 and 22 of the
Commission's Rules Relative to Cellular Communications Systems,
Report and Order, 86 F.C.C. 2d 469, 511 (1981) and Cellnet
Communications v. Detroit SMSA, Memorandum Opinion and Order, 9
FCC Rcd 3341, 3344 (Com. Car. Bur. 1994)). See also Complaint at
¶ 25 (same).
49 Cellexis's Brief at 16-17. See also Cellexis's Reply Brief
at 18-19.
50 This order, accordingly, does the same.
51 See note 9, supra.
52 Reply Brief of Defendants, File Nos. WB/ENF-F-97-001, -002,
-003 (filed Jan. 2, 1998) (``Defendants' Reply Brief'') at 11;
Cellexis's Supplemental Reply Brief at 6. See paragraph 3,
supra.
53 47 U.S.C. § 202(a) (emphasis added).
54 See Defendants' Brief at 27-28.
55 In advance of discovery by the parties, Commission
staff directed Defendants to provide certain information
concerning the marketing, provision, and network configuration of
``Mobile Minutes.'' See Letter from Howard C. Davenport, Chief,
Enforcement Division, Wireless Telecommunications Bureau, to
Alfred M. Mamlet and James M. Talens, counsel for Cellexis, and
John T. Scott, III, counsel for Defendants (dated Feb. 26, 1997).
Defendants and BCG each moved for a protective order (see
Defendants' Motion for Protective Order, File No. WB/ENF-F-97-
001, -002, -003 (filed Mar. 21, 1997); BCG's Motion for
Protective Order, File No. WB/ENF-F-97-001, -002, -003 (filed
Mar. 21, 1997)), which Commission staff denied in part. See
Letter from Howard C. Davenport, Chief, Enforcement Division,
Wireless Telecommunications Bureau, to Alfred M. Mamlet and James
M. Talens, counsel for Cellexis; John T. Scott, III, counsel for
Defendants; and Barry A. Friedman and Scott A. Fenske, counsel
for BCG (dated May 12, 1997). BCG subsequently filed an
Application for Review of the staff's letter-order. See
Application for Review by BCG, File Nos. WB/ENF-F-97-001, -002, -
003 (filed May 19, 1997) (``Application for Review''). After we
denied the Application for Review (see Cellexis v. Bell Atlantic
NYNEX Mobile, Inc., Memorandum Opinion and Order, 13 FCC Rcd
22467 (1998)), BCG appealed to the United States Court of Appeals
for the District of Columbia Circuit. See Boston Communications
Group v. Federal Communication Commission, Case No. 98-151,
Petition for Review (filed Nov. 12, 1998). The Court enjoined
the Commission from disclosing the information pending
disposition of BCG's appeal. See id., Order (issued Nov. 18,
1998). Briefing in the appellate proceeding has been stayed, and
the appeal is still pending. See id., Order (issued Apr. 13,
1999).
Cellexis objects to the Commission's issuance of a
decision on its section 202(a) claim ``until all of the Mobile
Minutes information it has requested from BCG is provided and
further briefs are filed and made part of the record in this
proceeding.'' Cellexis's Supplemental Brief at 2 n.1. But
Cellexis fails to explain how it is prejudiced by a lack of
access to this information, and we perceive no such prejudice.
The information in question might have been probative only with
respect to Cellexis's claims under sections 201, 251, and 332,
which we deny in light of the Fourth Report and Order. See note
4, supra. The information is not relevant to Cellexis's section
202(a) claim, because, whatever Defendants' internal facility
arrangements for Mobile Minutes service may be, the arrangements
are not being offered or provided to a customer. See discussion,
supra, section III.B.1. Accordingly, we hereby vacate the
staff's May 12, 1997 letter-order and our October 28, 1998 Order
on Review, and instruct the staff to return the confidential BCG
information to Defendants.
56 Complaint at ¶ 26; Answer at ¶ 26.
57 Complaint, Exhibit 5.
58 See Letter from John T. Scott, III, counsel for Defendants,
to Howard C. Davenport, Chief, Enforcement Division, Wireless
Telecommunications Bureau (dated Mar. 6, 1997) (attached Response
to the FCC's 2/27/97 Questions at C.1).
59 Defendants' Brief at 39.
60 Complaint at ¶ 26. See also Complaint at ¶¶ 26-28;
Cellexis's Brief at 9-15; Cellexis's Reply Brief at 6-16.
61 See Ad Hoc Telecommunications Users Committee v. FCC, 680
F.2d at 803-04 (concurring opinion) (``The word `service' as it
is used in section 202(a) refers to the entire package of
benefits, rights, restrictions, duties, facilities and services
contracted for between the customer and the communications
carrier and is not restricted to the physical facilities that are
used in long distance calls.''); Beehive Telephone, 10 FCC Rcd at
10567, ¶ 30 (an assessment of whether services are ``like'' must
focus on the practical significance of the service to users).
62 Defendants' Reply Brief at 20-22.
63 Defendants' Brief at 42-43.
64 Pseudo numbers are special telephone numbers (i.e., not
regular cellular telephone numbers) that permit Cellexis to block
calls of its customers originating outside its geographic area.
Defendants' Brief at 43.
65 Id.
66 Id.
67 Id. at 43-44.
68 Cellexis's Brief at 10-15; Cellexis's Reply Brief at 8-10.
69 Defendants' Reply Brief at 20-22.