Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. E-97-46             |
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| AirTouch Cellular,               | ) |                              |
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| Complainant,                     | * |                              |
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| Pacific Bell,                    | ) |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** June 27, 2001 **Released:** July 6, 2001

By the Commission: Commissioner Abernathy not participating.

**I. INTRODUCTION**

1.  In this Memorandum Opinion and Order, we grant in part and deny in
    part the complaint filed by AirTouch Cellular ("AirTouch") against
    Pacific Bell[^1] pursuant to section 208 of the Communications Act
    of 1934, as amended ("Act").[^2] In its complaint, AirTouch alleges
    that Pacific Bell violated section 20.11[^3] of the Commission's
    rules because Pacific Bell did not pay mutual compensation to
    AirTouch, nor did the Interconnection Agreement between AirTouch and
    Pacific Bell contain any provisions for mutual compensation.[^4] We
    find that Pacific Bell violated section 20.11 of the rules when it
    failed to pay mutual compensation to AirTouch in connection with
    terminating traffic that originated on Pacific Bell's facilities. We
    dismiss, however, AirTouch's claim that the Interconnection
    Agreement violated rule section 20.11 because the statute of
    limitations has run on that claim.

    **II. BACKGROUND**

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2.  During the period relevant to this complaint, AirTouch controlled
    several cellular telephone providers in California. Pacific Bell was
    an incumbent local exchange carrier ("LEC") that provided local
    exchange and exchange access services in California.[^5] In 1993,
    Pacific Bell began negotiations with the cellular industry in
    California, leading to interconnection agreements in 1994 between
    Pacific Bell and individual cellular carriers.[^6] On April 28,
    1994, AirTouch and Pacific Bell entered into an Interconnection
    Agreement governing the terms and conditions associated with the
    exchange of traffic between AirTouch and Pacific Bell.[^7] The
    Interconnection Agreement did not provide "cash compensation" to
    AirTouch for the termination of calls that originated on Pacific
    Bell's network.[^8]

3.  On March 7, 1994, prior to the signing of the Interconnection
    Agreement, the Commission adopted rule section 20.11, which requires
    that "local exchange carriers and commercial mobile radio service
    providers shall comply with principles of mutual compensation."[^9]
    Section 20.11 became effective on July 18, 1994, approximately three
    months after the parties signed the Interconnection Agreement.[^10]
    During the time period in which the Interconnection Agreement was
    effective, Pacific Bell did not pay "cash compensation" to AirTouch
    for terminating traffic that originated on Pacific Bell's
    network.[^11] Almost three years later, AirTouch and Pacific Bell
    entered into a new contract for interconnection, effective March 25,
    1997, that did provide for reciprocal compensation.[^12] On
    September 19, 1997, AirTouch filed this formal complaint, reserving
    the right to file a supplemental complaint for damages after the
    issuance of a Commission decision on the merits of the instant
    complaint.[^13]

**III. DISCUSSION**

4.  In its Complaint, AirTouch appears to make several different
    arguments. First, AirTouch alleges that Pacific Bell's failure to
    "provide for mutual compensation in its then-existing
    interconnection agreements with AirTouch \[\] resulted in Pacific
    Bell violating Section 20.11(b) of the Commission's Rules ...
    ."[^14] AirTouch also alleges that, regardless of the terms of the
    Interconnection Agreement, Pacific Bell violated section 20.11(b)
    when it failed to pay mutual compensation to AirTouch for
    terminating traffic that originated on Pacific Bell's network.[^15]

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A.  Claim that Terms of Interconnection Agreement Violated Section
    20.11(b)

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5.  AirTouch claims that Pacific Bell violated section 20.11(b) when it
    failed to provide for mutual compensation in the 1994
    Interconnection Agreement.[^16] Pacific Bell asserts that
    AirTouch\'s claim is barred by the statute of limitations set forth
    in section 415 of the Act. AirTouch responds that Pacific Bell\'s
    failure to comply with section 20.11(b) was a continuting violation
    and that the statute of limitations began with each day that the
    rule was violated. For this claim, however, we agree with Pacific
    Bell that the statute of limitations bars AirTouch\'s claim.

6.  Under section 415(b) of the Act, "\[a\]ll complaints against
    carriers for the recovery of damages not based on overcharges shall
    be filed with the Commission within two years from the time the
    cause of action accrues."[^17] A cause of action accrues for
    purposes of section 415(b) when the carrier does the unlawful act or
    fails to do what the law requires.[^18] We find that this cause of
    action, which is based on the allegation that the Interconnection
    Agreement violated section 20.11(b) of the Commission's rules,
    accrued on July 18, 1994, the date that section 20.11 became
    effective.[^19] AirTouch knew when it entered into the
    Interconnection Agreement that it lacked mutual compensation
    provisions.[^20] If section 20.11 required Pacific Bell to take some
    action to amend the preexisting Interconnection Agreement, then that
    obligation came into being on July 18, 1994.[^21] Accordingly,
    AirTouch should have filed this claim in a complaint on or before
    July 18, 1996 in order to comply with the requirements of section
    415(b). Because this complaint was not filed until September 19,
    1997, AirTouch's claim is time barred.

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B.  **Claim that Pacific Bell Violated Section 20.11(b) by Failing to
    Pay Mutual Compensation to AirTouch**

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1.  **Section 20.11(b) Applies to Intrastate Traffic**

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7.  AirTouch next argues that regardless of the absence of mutual
    compensation provisions in the Interconnection Agreement, Pacific
    Bell violated section 20.11(b) of the Commission's rules when it
    failed to pay AirTouch mutual compensation for terminating calls
    that originated on Pacific Bell's network.[^22] Pacific Bell
    contends that, prior to the enactment of the 1996 Act, the
    obligation to pay mutual compensation under section 20.11 only
    applied to interstate traffic.[^23] We disagree for the reasons set
    forth below.[^24]

8.  The Commission adopted the *CMRS Second Report and Order* in 1994 to
    implement sections 3(n) and 332 of the Act, as amended by Section
    6002(b) of the Omnibus Budget Reconciliation Act of 1993.[^25] The
    Budget Act changed the regulatory regime with respect to mobile
    service providers, by, among other things, (1) bringing all mobile
    service providers under a comprehensive, consistent regulatory
    framework; (2) giving the Commission flexibility to establish
    appropriate levels of regulation for mobile radio services
    providers; (3) mandating that commercial mobile radio service
    ("CMRS") providers would be treated as common carriers; and (4)
    preempting state regulation of entry and rates for CMRS providers,
    but permitting states to petition the Commission for authority to
    regulate CMRS rates under some circumstances.[^26]

9.  In the *CMRS Second Report and Order* the Commission adopted rule
    section 20.11, which states in relevant part:

> \(b\) Local exchange carriers and commercial mobile radio service
> providers shall comply with principles of mutual compensation.
>
> \(1\) A local exchange carrier shall pay reasonable compensation to a
> commercial mobile service provider in connection with terminating
> traffic that originates on facilities of the local exchange
> carrier.[^27]

10. In the text of the *CMRS Second Report and Order*, the Commission
    stated that the mutual compensation requirement is "in keeping with
    actions we already have taken with regard to Part 22
    providers."[^28] The Commission then cited to a 1987 proceeding that
    affirmed principles of mutual compensation for interstate switching
    costs between telephone companies and cellular carriers.[^29]
    Pacific Bell argues that because the *CMRS Second Report and Order*
    cited to a proceeding that explicitly limited the scope of mutual
    compensation to interstate traffic, the scope of section 20.11 must
    be similarly limited to interstate traffic. Pacific Bell states that
    the Commission did not preempt the authority of the states to
    regulate mutual compensation or other aspects of interconnection
    rates.[^30]

11. We find Pacific Bell's arguments unpersuasive and conclude that the
    Commission intended the principles of mutual compensation to apply
    to intrastate interconnection between LECs and CMRS carriers. First,
    nothing in the text of rule section 20.11 limits its coverage to
    interstate services. Section 20.11 states that a LEC "*shall* pay
    reasonable compensation to a commercial mobile service provider in
    connection with terminating traffic that originates on facilities of
    the local exchange carrier."[^31] The text of the rule contains no
    limitations on its applicability to intrastate traffic. In fact, to
    limit section 20.11 to only interstate services would be nonsensical
    given that the rule pertains to CMRS-bound traffic that originates
    on the local exchange carrier which, because of the Bell Operating
    Companies' prohibition on the provision of interLATA services at the
    time, would almost entirely be intrastate traffic.

12. Second, in the text of the *CMRS Second Report and Order*, the
    Commission said that "\[t\]he principle of mutual compensation shall
    apply, under which LECs shall compensate CMRS providers for the
    reasonable costs incurred by such providers in terminating traffic
    that originates on LEC facilities."[^32] The text does not impose
    any limitation on the scope of the mutual compensation requirement.
    This is in stark contrast to the very next paragraph, in which the
    Commission specifically limits a pricing requirement to interstate
    traffic only: "\[w\]e require that LECs shall establish reasonable
    charges for *interstate* interconnection provided to commercial
    mobile radio service licensees."[^33] We conclude that had the
    Commission intended to limit the applicability of the mutual
    compensation requirement to interstate traffic, it would have
    clearly specified such a limitation.

13. Third, we find support for our conclusion in the Commission's 1996
    *Local Competition First Report and Order*.[^34] In that order, the
    Commission stated that

> \[I\]n many cases, incumbent LECs appear to have imposed arrangements
> that provide little or no compensation for calls terminated on
> wireless networks, and in some cases imposed charges for traffic
> originated on CMRS providers\' networks, both in violation of section
> 20.11 of our rules.[^35]

Based on this conclusion, the Commission ordered that CMRS carriers be
given the option to renegotiate existing interconnection agreements to
include reciprocal compensation provisions. Once again, the Commission
made no mention of any intrastate restriction on the scope of section
20.11, or on the scope of mutual or reciprocal compensation in general.

14. We note that the *CMRS Second Report and Order* does state that the
    Commission "will not preempt state regulation of LEC intrastate
    interconnection rates applicable to cellular carriers at this
    time."[^36] This must be read in conjunction with the nonrestrictive
    mutual compensation language in that order. Accordingly, we conclude
    that the Commission's intent was to mandate mutual compensation for
    the termination of traffic that originates on the LEC's network, but
    to not preempt state regulation of the actual rate paid by CMRS
    carriers for intrastate interconnection. Therefore, although LECs
    were required to pay mutual compensation to CMRS carriers for
    intrastate traffic pursuant to Commission rules, the determination
    of the actual rates charged for intrastate interconnection would be
    left to the states. Based on the reasoning above, we conclude that
    when the Commission adopted the *CMRS Second Report and Order*, it
    intended to apply the mutual compensation provisions of rule section
    20.11 to intrastate traffic.

2\. The Provision of Cost Data Is Not a Prerequisite for Mutual
Compensation

15. Pacific Bell argues that the Commission's mutual compensation
    requirement "required that each carrier to record and segregate
    traffic by originating carrier and provide cost data."[^37] Pacific
    Bell contends that this requirement stems from the Commission's 1989
    statement that "a mutual compensation policy ... allows each
    cellular and landline carrier to recover its actual costs of
    switching traffic for the other party."[^38] We agree with AirTouch
    that section 20.11 does not require CMRS carriers to provide such
    cost data to be eligible for mutual compensation.[^39] The text of
    the 1994 *CMRS Second Report and Order* states merely that "the
    principle of mutual compensation shall apply, under which LECs shall
    compensate CMRS providers for the reasonable costs incurred by such
    providers in terminating traffic that originates on LEC
    facilities."[^40] Nor does the text of section 20.11 of the rules
    impose any requirement for the provision of cost data to the
    originating carrier in order to be eligible for mutual compensation.
    The Commission's statement that mutual compensation allows carriers
    to recover their "actual costs" does not itself reflect any
    substantive requirement, but rather describes one possible outcome
    if the Commission were to adopt a mutual compensation regime.
    Accordingly, we find that section 20.11 does not require CMRS
    carriers to provide cost data to the originating carrier as a
    prerequisite to eligibility for mutual compensation.

> **3. AirTouch Did Not Waive Its Statutory Right to Mutual
> Compensation**

16. We conclude above that Pacific Bell should have paid mutual
    compensation to AirTouch for terminating traffic, pursuant to
    section 20.11, regardless of the fact that the Interconnection
    Agreement was silent regarding mutual compensation. Pacific Bell
    contends, however, that AirTouch voluntarily traded mutual
    compensation in exchange for other favorable terms, such as an
    option for reverse toll billing at a special rate.[^41] We
    acknowledge that parties may modify some statutory obligations under
    certain circumstances, such as through an express waiver of
    statutory rights.[^42] Based upon our examination of the record,
    however, we find that the parties did not modify the section 20.11
    obligation to pay mutual compensation. The Interconnection Agreement
    does not contain any provisions negating the mutual compensation
    obligation.[^43] Pacific Bell failed to offer any evidence that
    AirTouch expressly waived its right to mutual compensation.
    Moreover, AirTouch states repeatedly that it "did *not* waive any
    right to receive mutual compensation."[^44] Accordingly, we conclude
    that AirTouch and Pacific Bell did not agree to modify or negate the
    obligation to pay mutual compensation for the termination of traffic
    that originated on each other's networks.

C. Equitable Defenses of Estoppel, Laches, Waiver

17. Pacific Bell argues that the equitable defenses of estoppel, laches,
    and waiver bar AirTouch's complaint.[^45] We find that these
    equitable defenses do not operate to bar AirTouch's complaint. We
    agree with AirTouch that Pacific Bell has failed to provide specific
    authority for the availability of equitable defenses in a section
    208 complaint.[^46] In any event, we reject Pacific Bell's defenses.
    Pacific Bell failed to pay mutual compensation to AirTouch as
    expressly required under section 20.11 of our rules and, therefore,
    we decline to accept Pacific's Bell's invocation of equity to avoid
    paying such compensation. Accordingly, we reject Pacific Bell's
    argument that AirTouch's complaint is barred by the equitable
    defenses of estoppel, laches, and waiver.

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IV. **CONCLUSION**

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18. Based on our analysis above, we find that Pacific Bell violated
    section 20.11 of the Commission's rules when it failed to pay mutual
    compensation to AirTouch for terminating traffic that originated on
    Pacific Bell's network. We dismiss AirTouch's claim, however, that
    Pacific Bell violated section 20.11 when it failed to include mutual
    compensation provisions in the Interconnection Agreement, because
    such claim is barred by the statute of limitations contained in
    section 415(b) of the Act.[^47]

    **V. ORDERING CLAUSES**

19. Accordingly, IT IS ORDERED, pursuant to §§ 1, 4(i), 4(j), 207, 208,
    and 209 of the Act, 47 U.S.C. §§ 151, 154(i), 154(j), 207, 208, and
    209, and section 20.11 of the Commission's rules, 47 C.F.R. § 20.11,
    that the formal complaint filed by AirTouch Cellular against Pacific
    Bell is GRANTED to the extent indicated herein.

20. IT IS FURTHER ORDERED that AirTouch Cellular, pursuant to section
    1.722 of the Commission's rules, 47 C.F.R. § 1.722, MAY FILE a
    supplemental complaint concerning damages relating to our findings
    in this Order within 60 days of the date of this decision.

    FEDERAL COMMUNICATIONS COMMISSION

    Magalie Roman Salas

    Secretary

[^1]: Subsequent to the filing of this complaint, SBC Communications
    acquired Pacific Bell.

[^2]: 47 U.S.C. § 208 (1991 & West Supp. 1999).

[^3]: 47 C.F.R. § 20.11.

[^4]: AirTouch Complaint, filed September 19, 1997, at ¶¶ 4, 5
    ("Complaint").

[^5]: Joint Stipulations of Disputed and Undisputed Facts, filed
    February 25, 1998, Undisputed Fact No. 2 ("Joint Stipulations").

[^6]: Opening Brief of Pacific Bell, filed April 27, 1998 at 13
    ("Pacific Bell Brief"); Joint Stipulations, Undisputed Fact Nos. 9,
    12, 13, 20.

[^7]: AirTouch Cellular's Opening Brief, filed April 27, 1998 ("AirTouch
    Brief") at Exhibit A (Interconnection Agreement).

[^8]: Joint Stipulations, Undisputed Fact No. 8.

[^9]: *In the Matter of Implementation of Sections 3(n) and 332 of the
    Communications Act, Regulatory Treatment of Mobile Services*, Second
    Report and Order, 9 FCC Rcd 1411, 1498 at ¶ 232 (1994).

[^10]: *See Implementation of Sections 3(n) and 332 of the
    Communications Act, Regulatory Treatment of Mobile Services*, 59 FR
    18493 (April 19, 1994).

[^11]: *See* Joint Stipulations, Undisputed Fact No. 9.

[^12]: Complaint at ¶ 6. The Commission stated in 1996 that "\[w\]e use
    the term 'reciprocal compensation' and 'mutual compensation'
    synonymously." *In the Matter of Implementation of the Local
    Competition Provisions in the Telecommunications Act of 1996;
    Interconnection between Local Exchange Carriers and Commercial
    Mobile Radio Service Providers*, Report and Order, 11 FCC Rcd 15499,
    16045 at ¶ 1095, n. 2634 (1996) ("*Local Competition First Report
    and Order*") (subseq. history omitted).

[^13]: Complaint at ¶ 12.

[^14]: Complaint at ¶ 9.

[^15]: Complaint at ¶ 6; Reply of AirTouch Cellular, filed November 19,
    1997, at ¶ 28.

[^16]: Complaint at ¶ 9.

[^17]: 47 U.S.C. § 415(b).

[^18]: *AT&T Corp. v. Bell Atlantic -- Pennsylvania*, Memorandum Opinion
    and Order, 14 FCC Rcd 556, ¶ 12 (1998).

[^19]: *See Former Frigidaire Employees Association v. International
    Union of Electrical Radio and Machine Workers, Local 801*, 573
    F.Supp. 59 (S.D. Ohio 1983). In *Frigidaire*, the plaintiff
    employees alleged that the defendant union violated § 301 of the
    Labor-Management Relations Act and the duty of fair representation
    when the union ratified an agreement that failed to include an
    extension of recall rights. The Court found that the cause of action
    accrued when the agreement was ratified, and that "once the original
    damage is lodged, the mere fact that the Defendants are 'continuing'
    to implement allegedly improper collective bargaining agreements
    does not convert Plaintiffs' loss of jobs into a 'continuing
    violation.'" *Frigidaire*, 573 F.Supp. at 62, citing *Adkins v.
    General Motors Corp.*, 573 F.Supp. 1188, 1193 (S.D. Ohio 1982).

[^20]: AirTouch Brief at 11, n.30.

[^21]: We note that Pacific Bell argues that this cause of action
    accrued on April 28, 1994, the date the parties entered into the
    Interconnection Agreement. *See, e.g.,* Pacific Bell Brief at 8. We
    disagree that the cause of action accrued on this date. AirTouch's
    claim is that the Interconnection Agreement was not in compliance
    with section 20.11 of the Commission's rules, which did not become
    effective until July 18, 1994, after the Interconnection Agreement
    was signed.

[^22]: AirTouch Brief at 7.

[^23]: Pacific Bell Brief at 22.

[^24]: This claim is not barred by the statute of limitations in section
    415(b). We agree with AirTouch that Pacific Bell's failure to pay
    mutual compensation should be considered a continuing violation of
    rule section 20.11, such that the statute of limitations would begin
    with each day that the rule was violated. We also agree with
    AirTouch that, although it cannot recover damages dating back to the
    1994 inception of the Interconnection Agreement, it can recover
    damages for alleged violations during the two year period from
    September 20, 1995 (two years back from the filing date of the
    complaint) to March 25, 1997 (the effective date of the new
    interconnection agreement that included reciprocal compensation
    provisions). Complaint at ¶ 6; AirTouch Brief at 6-7.

[^25]: Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66,
    Title VI, § 6002(b)(2)(A), 6002(b)(2)(B), 107 Stat. 312, 392 (1993)
    ("Budget Act").

[^26]: *Implementation of Sections 3(n) and 332 of the Communications
    Act; Regulatory Treatment of Mobile Services*, Second Report and
    Order, 9 FCC Rcd 1411, 1417 at ¶¶ 11-12 (1994) ("*CMRS Second Report
    and Order*").

[^27]: 47 C.F.R. § 20.11(b).

[^28]: *CMRS Second Report and Order*, 9 FCC Rcd at 1498, ¶ 22.

[^29]: *Id*. (citing *The Need to Promote Competition and Efficient Use
    of Spectrum for Radio Common Carrier Services*, Declaratory Ruling,
    2 FCC Rcd 2910, 2915 at ¶¶ 44-45 (1987) ("*Declaratory Ruling*")).

[^30]: Pacific Bell Brief at 21-22.

[^31]: 47 C.F.R. § 20.11(b)(1) (emphasis added).

[^32]: *CMRS Second Report and Order*, 9 FCC Rcd at 1498, ¶ 232.

[^33]: *Id*. at ¶ 233 (emphasis added).

[^34]: *Local Competition First Report and Order*, 11 FCC Rcd 15499
    (1996).

[^35]: *Id*. at ¶ 1094.

[^36]: *CMRS Second Report and Order*, 9 FCC Rcd at 1498, ¶ 231.

[^37]: Pacific Bell Brief at 19.

[^38]: Pacific Bell Brief at 19, citing *The Need to Promote Competition
    and Efficient Use of Spectrum for Radio Common Carrier Services
    (Cellular Interconnection Proceeding)*, Memorandum Opinion and Order
    and Order on Reconsideration, 4 FCC Rcd 2369, 2372 at ¶ 20 (1989).

[^39]: *See* AirTouch Brief at 15.

[^40]: *CMRS Second Report and Order*, 9 FCC Rcd at 1498, ¶ 232.

[^41]: Pacific Bell Brief at 5, 12. Reverse Toll Billing permitted
    Pacific Bell's subscribers to call CMRS providers' mobile
    subscribers throughout the LATA without incurring toll charges.
    *Id*. at 12-13.

[^42]: *See, e.g., Wright v. Universal Maritime Service Corp.*, 525 U.S.
    70 (1998) (stating that waiver of a statutorily protected right must
    be clear and unmistakable). *See also* *Evans v. Jeff. D.*, 475 U.S.
    717 (1986) (stating that statutory rights are not waivable if the
    waiver contravenes public policy).

[^43]: *See, e.g.*, Joint Stipulations, Undisputed Fact No. 8; AirTouch
    Brief at 8.

[^44]: *See, e.g.,* AirTouch Brief at 19 (emphasis in original);
    AirTouch Reply Brief at 5; Proffitt Declaration at 2.

[^45]: Pacific Bell Brief at 7.

[^46]: Letter from David A. Gross, attorney for AirTouch to Magalie
    Roman Salas, Secretary of the Federal Communications Commission,
    dated Jan. 19, 1999, at 1.

[^47]: We note that the parties dispute the validity of the unsigned
    Declaration of Peter Geiler, which was Exhibit I to AirTouch's Reply
    Brief. *See* Letter from David A. Gross, attorney for AirTouch to
    Magalie Roman Salas, Secretary of the Federal Communications
    Commission, dated May 29, 1998; Letter from Jeffrey B. Thomas,
    Senior Counsel for Pacific Bell to Magalie Roman Salas, Secretary of
    the Federal Communications Commission, dated June 3, 1998; Letter
    from David A. Gross, attorney for AirTouch to Magalie Roman Salas,
    Secretary of the Federal Communications Commission, dated June 24,
    1998. We need not address these disputes because the substantive
    issues in this complaint were decided without reference to this
    particular document.

    We also note that the Reply Brief of Pacific Bell contained two
    requests to strike certain assertions made in AirTouch's Brief.
    *See* Reply Brief of Pacific Bell, filed May 18, 1998, at n.1, n.13.
    We need not address these motions to strike because the substantive
    issues in this complaint were decided without reference to those
    particular assertions.