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Before the
Federal Communications Commission
Washington, D.C. 20554
`
In the Matter of )
)
Metro Teleconnect Companies, )
Inc., )
)
Complainant, )
) File No. EB-02-MD-016
v. )
)
Verizon Maryland Inc., )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Adopted: April 30, 2003 Released: May 1,
2003
By the Chief, Enforcement Bureau:
1. In this Order, we deny a formal complaint that
Metro Teleconnect Companies, Inc. (``Metro Teleconnect''), a
reseller of telecommunications services in Maryland, filed
against Verizon Maryland Inc. (``Verizon'') pursuant to
section 208 of the Communications Act of 1934, as amended
(the ``Act'').1 The Complaint alleges that Verizon has
violated and is violating sections 201(b), 202(a), and
251(c)(4) of the Act2 by failing to provide to Metro
Teleconnect the same free call allowance for directory
assistance calls that Verizon provides to its retail
customers.3
2. We deny Metro Teleconnect's claims under section
251(c)(4) for the reasons set forth in the recent Maryland
271 Order,4 in which the Commission granted Verizon
authority to provide interLATA services in Maryland pursuant
to section 271 of the Act.5 In order to succeed on its
section 271 application, Verizon had to show, among other
things, that it provides access to directory assistance
services and resells such services in accordance with the
requirements of section 251(c)(4).6 In determining whether
Verizon had satisfied this requirement, the Maryland 271
Order analyzed the same directory assistance resale tariff
challenged by Metro Teleconnect in its Complaint in this
proceeding (``Maryland Tariff'').7 After reviewing the
Maryland Tariff's directory assistance resale rates, the
Commission in the Maryland 271 Order found that, ``although
resellers do not get the free call allowance provided to
retail customers, they receive an analogous benefit in the
form of a larger discount off other retail service.''8
Thus, the Commission concluded that ``we do not agree ...
that Verizon's refusal to provide a free call allowance in
Maryland places resellers at any significant competitive
disadvantage.''9 The Commission summarizes its findings as
follows: ``Based on the record in this proceeding, we
conclude ... that Verizon satisfied the requirements of this
checklist item [i.e., section 271(c)(2)(B)(xiv)].''10 In
sum, we deny Metro Teleconnect's claims under section
251(c)(4) because the Commission in the Maryland 271 Order
expressly found the same directory assistance resale rates
at issue in the Complaint to comply with section
251(c)(4).11
3. We also deny Metro Teleconnect's claims under
sections 201(b) and 202(a). Section 251(c)(4) prohibits
``unreasonable'' and ``discriminatory'' conduct.12 Metro
Teleconnect has advanced no explanation as to how Verizon's
conduct could comply with section 251(c)(4), but still
violate the reasonableness standard of sections 201(b)13 and
202(a).14 Given these circumstances, we deny Metro
Teleconnect's Complaint in its entirety.15
4. ACCORDINGLY, IT IS ORDERED, pursuant to sections
1, 4(i), 4(j), 201, 202, 208, and 251 of the Act, 47 U.S.C.
§§ 151, 154(i), 154(j), 201, 202, 208, 251, and sections
1.720-1.736 of the Commission's rules, 47 C.F.R. §§ 1.720-
1.736, and the authority delegated by sections 0.111 and
0.311 of the Commission's rules, 47 C.F.R. §§ 0.111, 0.311,
that the above-captioned formal complaint is DENIED, and
this proceeding is hereby TERMINATED.
FEDERAL COMMUNICATIONS
COMMISSION
David H. Solomon
Chief, Enforcement
Bureau
_________________________
1 47 U.S.C. § 208. See Formal Complaint, Metro Teleconnect
Companies, Inc. v. Verizon Maryland Inc., File No. EB-02-
MD-016 (filed Apr. 23, 2002) (``Complaint'').
2 47 U.S.C. §§ 201(b), 202(a), 251(c)(4).
3 The Complaint also alleged claims under sections
252(d)(3) and 271(c)(2)(B) of the Act, 47 U.S.C. §§
252(d)(3), 271(c)(2)(B), but Metro Teleconnect later
withdrew those claims with prejudice. Letter dated June
24, 2002 from Glenn S. Richards, counsel to Metro
Teleconnect, to Marlene H. Dortch, Secretary, FCC, File No.
EB-02-MD-016 (filed June 24, 2002).
4 Application by Verizon Maryland Inc., et al., for
Authorization to Provide In-Region, InterLATA Services in
Maryland, Washington, D.C., and West Virginia, Memorandum
Opinion and Order, FCC 03-57, 2003 WL 1339419 (rel. Mar.
19, 2003) (``Maryland 271 Order'').
5 See generally Letter dated April 4, 2003 from Sherry A.
Ingram, counsel to Verizon, to Alexander Starr, Chief,
Market Disputes Resolution Division, FCC, File No. EB-02-MD-
016 (filed Apr. 28, 2003).
6 47 U.S.C. §§ 271(c)(2)(B)(xiv). As the Maryland 271
Order states, ``[s]ection 271(c)(2)(B)(xiv) requires that a
BOC make `telecommunications services ... available for
resale in accordance with the requirements of section
251(c)(4) ... .''' Maryland 271 Order, 2003 WL 1339419 at
105, ¶ 153 (quoting 47 U.S.C. § 271(c)(2)(B)(xiv)).
7 Maryland 271 Order, 2003 WL 1339419 at 106-110, ¶¶ 154-
158.
8 Maryland 271 Order, 2003 WL 1339419 at 109, ¶ 157.
9 Maryland 271 Order, 2003 WL 1339419 at 109, ¶ 157.
10 Maryland 271 Order, 2003 WL 1339419 at 105, ¶ 153.
11 In Metro Teleconnect's view, because the Maryland 271
Order rested on evidence indicating that retail and resale
residential customers in Maryland make, on average, two
directory assistance calls per month, the Commission left
open the question whether Verizon provides resale in
compliance with section 251(c)(4) with respect to resellers
whose calling patterns exceed the average. Letter dated
April 9, 2003 from Glenn S. Richards, counsel to Metro
Teleconnect, to Alexander P. Starr, Chief, Market Disputes
Resolution Division, FCC, File No. EB-02-MD-016 (filed Apr.
9, 2003) at 2 (citing Maryland 271 Order at 109, ¶ 157).
We disagree. Implicit in the Commission's reliance on data
as to the average number of directory assistance calls per
month is the recognition that some customers may place more
than two directory assistance calls per month (and some may
place fewer). Nevertheless, the Commission concluded that
Verizon's directory assistance resale rates (which, because
they are set forth in a tariff, apply on an industry-wide
basis) do not violate section 251(c)(4). Thus, as stated,
the Maryland 271 Order vitiates Metro Teleconnect's claims
under section 251(c)(4).
12 Section 251(c)(4) prohibits incumbent local exchange
carriers such as Verizon from ``impos[ing] unreasonable or
discriminatory conditions or limitations on, the resale of
such telecommunications service ... .'' 47 U.S.C. §
251(c)(4).
13 Section 201(b) declares unlawful any ``charge, practice,
classification, or regulation that is unjust or
unreasonable ... .'' 47 U.S.C. § 201(b).
14 Section 202(a) declares unlawful any ``unjust or
unreasonable discrimination in charges, practices,
classifications, regulations, facilities or services for or
in connection with like communication service ... .'' 47
U.S.C. § 202(a).
15 Given this result, we simply assume, without deciding,
that sections 201(b) and 202(a) of the Act apply to the
circumstances alleged; moreover, we need not and do not
reach Verizon's defense that Metro Teleconnect ``waived''
its claims in accordance with section 252(a)(1) of the Act,
47 U.S.C. § 252(a)(1).