Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
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
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the matter of )
)
Staton Holdings, Inc. d/b/a )
Staton Wholesale, )
)
Complainant, )
)
v. ) File No. EB-03-TC-F-003
)
Mills Fleet Farm, Inc., )
)
Defendant. )
____________________________________)
Staton Holdings, Inc. d/b/a )
Staton Wholesale, )
)
Complainant, )
)
v. ) File No. EB-03-TC-F-006
)
First Data Voice Service, )
)
Defendant. )
ORDER
Adopted: June 27, 2003 Released: June 30, 2003
By the Deputy Chief, Telecommunications Consumers Division,
Enforcement Bureau:
I. INTRODUCTION
1. On December 19, 2002, Staton Holdings, Inc., d/b/a/
Staton Wholesale (``Staton'') filed with the Federal
Communications Commission (``Commission'') a formal complaint
(``Mills Complaint'') against Mills Fleet Farm, Inc (``Mills'')
as well as similar complaints against MCI WorldCom
Communications, Inc. (``MCI'') and Sprint Communications Company,
L.P., (``Sprint'').1 On April 23, 2003, Staton filed a formal
complaint against First Data Voice Service (``FDVS Complaint'')
alleging essentially the same pertinent facts as against Mills.
The complaints allege that Staton had acquired the right to use
the toll-free vanity number 888-888-8888,2 and that defendants
MCI, Sprint, and FDVS knowingly and intentionally took this
vanity number from Staton without its consent, and that defendant
Mills held the number.3 Mills filed a Motion for Dismissal on
March 13, 2003,4 and FDVS filed a Motion to Dismiss on May 28,
2003.5
II. BACKGROUND
2. Staton is a clothing distributor based in Dallas,
Texas, with annual revenues of approximately $130,000,000.6 It
is incorporated in Texas, and has been in business since 1981.
3. Mills states that it operates retail stores selling
building supplies, hardware, and other general merchandise
throughout the Midwestern United States. It alleges that it
received access to the toll-free vanity number at issue here
through a gift card vendor with whom Mills contracted to
manufacture and supply gift cards for Mills' stores. According
to Mills, these cards can be purchased at its stores, be given as
gifts, and then used later to purchase merchandise. The vanity
number in question is listed on the back of the card, so that the
bearer of the card can call and determine the amount of credit
remaining on the card.7 Mills alleges that it does not answer
any calls placed to this vanity number.
4. FDVS provides data storage, retrieval, and processing
services.8 Many of these services are provided via
telecommunications connections that allow customers to deliver
and retrieve data from remote locations.9 FDVS states that it
has used the toll-free vanity number at issue here since April
26, 2001, to provide FDVS's Interactive Voice Response service to
an affiliated entity which, in turn, uses the service to provide
data services.10
5. On March 13, 2003, Mills filed a motion contending that
the Mills Complaint should be dismissed because: (1) it fails to
state a cause of action under the Communications Act of 1934, as
amended (the ``Act''); (2) the Commission lacks jurisdiction to
grant Staton's requested relief as Mills is not a common carrier;
and (3) Mills does not own or control the rights to the vanity
number at issue.11 Mills has attached a Responsible Organization
Change Authorization Form dated April 1, 2001, to its Mills
Motion. This form indicates that the customer for the vanity
number in question was FDC/Call Interactive.12 This date is
consistent with the Mills Complaint, which alleges that MCI
disconnected the vanity number in April 2001.13 Mills also
requests an award of its reasonable costs and the attorney' fees
incurred in connection with this proceeding.14
6. Staton initially filed an Opposition to the Motion for
Dismissal on March 24, 2003. 15 Staton stated there that Mills
was included as a defendant ``to provide a means for the
Commission to enforce the requested remedy.''16 On April 14,
2003, Staton filed a letter requesting that Mills be dismissed
without prejudice, on the express condition that should the
Commission find that its involvement is essential to adjudicating
the Mills Complaint, it be included to the extent necessary to
resolve this matter.17
7. In a motion filed on May 28, 2003, FDVS contends that
the FDVS Complaint should be dismissed on essentially the same
grounds that Mills cites. Specifically, FDVS contends that the
complaint against it fails to state a cause of action under the
Act, and that the Commission lacks jurisdiction to grant Staton's
requested relief as FDVS is not a common carrier.18
8. Staton filed an Opposition to the Motion to Dismiss
Formal Complaint on June 2, 2003.19 Again, Staton states that
FDVS was included as a defendant ``to provide a means for the
Commission to enforce the requested remedy.''20 It admits that
FDVS is not a common carrier.21 Staton contends, however, that
the Commission can assert limited jurisdiction over FDVS for the
purpose of carrying out the Commission's statutory
responsibilities.22
III. DISCUSSION
9. As a threshold matter, we must determine whether
Staton's complaints comply with the filing requirements of the
Act and the Commission's rules. Section 208 of the Act states
that a complaint must be directed against ``any common carrier
subject to this Act.''23 Further, section 1.720(b) of the
Commission's rules states that a formal complaint ``must contain
facts which, if true, are sufficient to constitute a violation of
the Act or Commission order or regulation.''24 Section 1.721(a)
of the Commission's rules states that a formal complaint shall
contain a ``[c]itation to the section of the Communications Act
and/or order and/or regulation of the Commission alleged to have
been violated.''25
10. Staton does not allege that Mills is a common
carrier subject to Section 208 of the Act.26 Moreover, Staton's
own pleadings admit that ``the only reason Mills was included as
a defendant in the Formal Complaint was to provide a means for
the Commission to enforce the requested remedy and order the
appropriate parties to return the All Eights Number to
Staton.''27 Staton does not allege that Mills violated the Act
or the Commission's rules or orders, but relies on sections
152(a) and 154(i) of the Act, contending that those sections give
the Commission the flexibility to assert jurisdiction over
Mills.28 Finally, we note that Staton supports the dismissal of
Mills, albeit without prejudice to allow Mills to be included in
these proceedings in the future if deemed necessary by the
Commission.29
11. Regarding FDVS, again, Staton does not allege that
it is a common carrier.30 In fact, Staton readily admits that
FDVS is ``not directly subject to the Act.''31 Staton states
that its complaint against FDVS was intended as a means to
enforce Staton's requested remedy.32 Staton again relies on
sections 152(a) and 154(i) of the Act, contending that those
sections give the Commission the flexibility to assert
jurisdiction over FDVS.33
12. We conclude that Staton's complaints against Mills
and FDVS fail to comply with threshold requirements for a formal
complaint. Specifically, these complaints fail to allege that
common carriers have violated the Act or the Commission's rules
or orders, as required by section 208 of the Act, and sections
1.720(b) and 1.721(a) of the Commission's rules. Hence, we find
that these complaints do not state a cause of action upon which
relief can be granted. We therefore dismiss, with prejudice, the
complaints against Mills and FDVS. We note that Staton does not
object to the dismissal of the Mills Complaint.
13. The Act and the Commission's rules do not allow
the Commission to award attorney's fees or costs. 34 We
therefore deny Mills' request for such an award.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED, pursuant to Sections
4(i), 4(j), and 208 of the Communications Act of 1934 as amended,
47 U.S.C. §§ 154(i), 154(j), 208, and the authority delegated in
sections 0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§
0.111, 0.311, that the Motion for Dismissal of Mills Fleet Farm,
Inc. and for an Award of Attorney's Fees is GRANTED in part and
DENIED in part, as set forth above.
15. IT IS FURTHER ORDERED that the above-captioned
formal complaint IS DISMISSED WITH PREJUDICE as to Mills Fleet
Farm, Inc., and that this proceeding IS TERMINATED with regard to
Mills Fleet Farm, Inc.
16. IT IS FURTHER ORDERED that, pursuant to Sections
4(i), 4(j), and 208 of the Communications Act of 1934 as amended,
47 U.S.C. §§ 154(i), 154(j), 208, and the authority delegated in
sections 0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§
0.111, 0.311, that the Motion to Dismiss Formal Complaint filed
by First Data Voice Services is GRANTED.
17. IT IS FURTHER ORDERED that the above-captioned
formal complaint IS DISMISSED WITH PREJUDICE as to First Data
Voice Services, and that this proceeding IS TERMINATED with
regard to First Data Voice Services.
FEDERAL COMMUNICATIONS COMMISSION
Kurt A. Schroeder
Deputy Chief, Telecommunications Consumers Division
Enforcement Bureau
Federal Communications Commission
_________________________
1 See Staton v. MCI, File No. EB-02-TC-F-008; Staton v. Sprint,
File No. EB-03-TC-F-002.
2 Mills Complaint at 8; FDVS Complaint at 7.
3 Mills Complaint at 15; FDVS Complaint at 12.
4 See Motion for Dismissal of Mills Fleet Farm, Inc. and for an
Award of Attorney's Fees, filed March 13, 2003 (``Mills
Motion'').
5 See Motion to Dismiss Formal Complaint, filed by FDVS on May
28, 2003 (``FDVS Motion'').
6 Mills Complaint at 5, 6; FDVS Complaint at 4, 5.
7 Mills Motion at 2-3.
8 See FDVS Motion at 1.
9 See FDVS Motion, Affidavit of Teri Ring, at 2.
10 Id.
11 Mills Motion at 3-7.
12 See Id., Exhibit A.
13 Mills Complaint at 12.
14 Id. at 7.
15 See Staton's Opposition to Motion for Dismissal, filed March
25, 2003 (``Mills Opposition''). Under Section 1.727(e) of the
Commission's rules, an opposition to a motion must be filed
within five business days of the filing of the motion. 47 C.F.R.
§ 1.727(e). Therefore, Staton's Opposition was not timely filed.
Under the circumstances here, however, we will nonetheless
consider Staton's Opposition.
16 Mills Opposition at 2.
17 See Letter from Robert J. Miller, counsel for Staton Holdings,
Inc., to Colleen Heitkamp, Chief, Telecommunications Consumers
Division, Federal Communications Commission, dated April 14, 2003
(``April 14 Letter'').
18 See FDVS Motion at 2-8.
19 See Staton's Opposition to the Motion for Dismiss Formal
Complaint, filed June 2, 2003 (``FDVS Opposition'').
20 FDVS Opposition at 2.
21 Id. at 3.
22 Id. at 7.
23 47 U.S.C. § 208(a).
24 47 C.F.R. § 1.720(b).
25 47 C.F.R. § 1.721(a)(4).
26 Mills Complaint at 3.
27 Mills Opposition at 2.
28 Id.
29 See April 14 Letter.
30 FDVS Complaint at 3.
31 Id.
32 FDVS Opposition at 2.
33 Id. at 3.
34 Multimedia Cablevision, Inc. v. Southwestern Bell Telephone
Co., Memorandum Opinion and Hearing Designation Order, 11 FCC Rcd
11202, 11208 (1996); Comark Cable Fund III, Memorandum Opinion
and Order and Notice of Apparent Liability for Forfeiture, 100
FCC 2d 1244, 1257, para. 31 n.51 (1985).