Before the

Federal Communications Commission

**Washington, D.C. 20554**

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| In the Matter of                 | * | WT Docket No. 99-263         |
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| Wireless Consumers Alliance,     | ) |                              |
| Inc.                             | * |                              |
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| Petition for a Declaratory       |   |                              |
| Ruling Concerning Preemption of  | * |                              |
| State Court Awards of Monetary   | * |                              |
| Relief Against Commercial Mobile | ) |                              |
| Radio Service Providers.         | * |                              |
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**ORDER ON RECONSIDERATION**

**Adopted:** January 31, 2001 **Released:** February 5, 2001

By the Commission:

# introduction

+-----------------------------------------------------------------------+
| 1.  This Order on Reconsideration responds to a Petition for          |
|     Reconsideration filed on September 13, 2000 by the Cellular       |
|     Telecommunications Industry Association ("CTIA Petition").[^1]    |
|     This petition challenges our Memorandum Opinion and Order[^2]     |
|     deciding matters raised by the Wireless Consumers Alliance,       |
|     Inc.[^3] in a petition for declaratory ruling on whether the      |
|     provisions of the Communications Act serve to preempt state       |
|     courts from awarding monetary relief against Commercial Mobile    |
|     Radio Service ("CMRS") providers for violations of state          |
|     contract, tort or consumer protection law.[^4]                    |
|                                                                       |
| 2.  In this order, we deny CTIA's petition for reconsideration        |
|     because CTIA has not presented any new arguments that were not    |
|     considered at the time we adopted the *WCA Order*. We reaffirm    |
|     our earlier holding that Section 332 does not generally preempt   |
|     the award of monetary damages by state courts and again note that |
|     whether a specific damage calculation is prohibited by Section    |
|     332 will depend on the specific details of the award and the      |
|     facts and circumstances of a particular case.[^5]                 |
+-----------------------------------------------------------------------+

# Background

3.  CTIA admits in its petition that it agrees with the Commission's
    holding that Section 332 does not *per se* preempt damage awards in
    state actions based on contract, tort or consumer protection law and
    that the question of whether Section 332 preempts a specific damage
    calculation must be made by on a case-by-case basis with reference
    to the details of the damage award and the facts of the particular
    controversy.[^6] CTIA, however, maintains that in reaching this
    conclusion, the Commission improperly centered its analysis on the
    question of whether awarding monetary damages for consumer
    protection, breach of contract or tort claims constitutes state
    regulation of rates.[^7] CTIA argues that the Commission should have
    provided more guidance to the courts in its decision by focusing on
    interpreting the statutory language of Section 332 regarding the
    terms "regulate" and "rates charged by."[^8] CTIA also argues that
    the Commission should have found that previous filed rate cases were
    relevant to the issue of whether the award of monetary damages is
    equivalent to rate regulation under Section 332 and thus are
    preempted by Section 332.[^9]

# discussion

4.  The arguments that CTIA presents in its petition for reconsideration
    are not new and provide no basis for us to reconsider our
    determinations in the *WCA Order*. We address these arguments in
    turn.

5.  First, we believe we have properly framed the issues presented to us
    in our analysis in the *WCA Order*. As CTIA asserts, and as we
    recognized in the *WCA Order*, Section 332 preempts state regulation
    of CMRS rates.[^10] Section 332 does, however, permit states to
    regulate the terms and conditions of CMRS service, which according
    to legislative history includes consumer protection matters.[^11]
    Because all parties were in agreement that state regulation of CMRS
    rates is forbidden by Section 332, the issue presented to us was
    whether the award of damages was equivalent to rate regulation and
    thus prohibited or whether awarding damages generally fell under
    allowable state action on terms and conditions.[^12] We do not agree
    that our framing and analysis of the issue in this manner were
    incorrect. The *WCA Order* appropriately addressed the questions
    presented in the WCA Petition and should provide sufficient guidance
    to courts regarding the meaning of the statutory language of Section
    332.

6.  Second, in explaining its dissatisfaction with the Commission's
    original decision, CTIA refers to issues that were previously raised
    by commenters to the WCA Petition. For example, CTIA argues that
    state court damage awards require a court to evaluate the
    reasonableness of the rates charged by CMRS providers and thus
    constitute rate regulation preempted by Section 332.[^13] In the
    *WCA Order*, we specifically determined that a damages award or
    calculation is not necessarily a ruling on the reasonableness of the
    price charged for a CMRS service.[^14] CTIA also maintains that
    damages awards are in fact retroactive rate adjustments.[^15]
    However, we also rejected arguments that a damage award, including a
    refund or rebate, necessarily was equivalent to a retroactive rate
    adjustment.[^16] These issues were raised and fully discussed in the
    *WCA Order*.[^17]

7.  Third, CTIA argues that the Commission should have looked to filed
    rate cases in order to interpret Section 332.[^18] While CTIA admits
    that the filed rate doctrine itself does not apply in the CMRS
    context, it again argues that the logic or analysis of the filed
    rate cases should apply.[^19] As it did in its comments on the WCA
    Petition**,** CTIA cites non-CMRS cases premised on the filed rate
    doctrine, including *Central* *Office*,[^20] *Day,*[^21] and
    *Marcus,*[^22] whereby monetary damages are considered to be
    modifications to the lawful tariff rate and thus equivalent to
    ratemaking. CTIA again argues that in the CMRS context damages
    awards should be similarly barred by Section 332.[^23] This question
    of the applicability of the filed rate doctrine in CMRS cases,
    however, was fully analyzed in the *WCA Order* and all of the cases
    cited by the parties were considered by the Commission in reaching
    its determinations.[^24] In that order we found that since there are
    no filed rates for CMRS services, the filed rate doctrine does not
    apply.[^25] We further determined that the logic and analysis of the
    filed rate cases do not apply to the specific statutory preemption
    established by Section 332, and found that it would not serve the
    public interest to apply a filed rate doctrine rationale in CMRS
    cases.[^26]

8.  As stated above, the issues raised in the CTIA Petition were fully
    considered in the *WCA Order*. CTIA has provided us no new facts or
    legal analysis that would cause us to reach a different result. We
    therefore deny the CTIA Petition.

# ORDERING CLAUSE

9.  Accordingly, pursuant to Sections 1, 2, 4(i) and (j), 201, 303(f)
    and (r), and 332 of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 151, 152, 154(i) and (j), 201, 229, 303(f) and (r) and
    332, and Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106,
    IT IS ORDERED, that the Petition for Reconsideration of the WCA
    Memorandum Opinion and Order filed by the Cellular
    Telecommunications Industry Association IS DENIED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Magalie Roman Salas
>
> Secretary

[^1]: No oppositions or replies were received in response to the CTIA
    Petition.

[^2]: Wireless Consumers Alliance, Inc. Petition For a Declaratory
    Ruling Concerning Preemption of State Court Awards of Monetary
    Relief Against Commercial Mobile Radio Service Providers, WT Docket
    No. 99-263, *Memorandum Opinion and Order*, FCC 00-292 (rel. August
    14, 2000) (*WCA Order*).

[^3]: Wireless Consumers Alliance, Inc. Petition for a Declaratory
    Ruling Concerning Whether the Provisions of the Communications Act
    of 1934, as Amended, or the Jurisdiction of the Federal
    Communications Commission Thereunder, Serve to Preempt State Courts
    from Awarding Monetary Relief Against Commercial Mobile Radio
    Service (CMRS) Providers (a) for Violating State Consumer Protection
    Laws Prohibiting False Advertising and Other Fraudulent Business
    Practices, and/or (b) in the Context of Contractual Disputes and
    Tort Actions Adjudicated Under State Contract and Tort Laws, filed
    July 15, 1999 (WCA Petition).

[^4]: In addition, the *WCA Order* incorporated a remaining issue from a
    Petition for a Declaratory Ruling filed by Southwestern Bell Mobile
    Systems. Southwestern Bell Mobile Systems Inc. Petition for a
    Declaratory Ruling Regarding the Just and Reasonable Nature of, and
    State Challenges to, Rates Charged by CMRS Providers when Charging
    for Incoming Calls and Charging for Calls in Whole-Minute
    Increments, FCC 99-356, *Memorandum Opinion and Order*, 14 FCC Rcd
    19898, 19908-09 (para 24) (1999). This outstanding issue, whether
    the Communications Act preempts the award of damages by state courts
    against CMRS providers, was so closely linked to the more specific
    issue of monetary damages raised by WCA, that the Commission chose
    to address them in the same order.

[^5]: *WCA Order* at para. 2.

[^6]: CTIA Petition at 4, 5, summary (unpaginated).

[^7]: CTIA Petition at 2-3.

[^8]: CTIA Petition at 3, 5.

[^9]: CTIA Petition at 10-13.

[^10]: 47 U.S.C. 332(c)(3)

[^11]: H.R. Rep. No. 111, 103^rd^ Cong., 1^st^ Sess. 550-551 (1993).

[^12]: *WCA Order* at para. 13.

[^13]: CTIA Petition at 3, 6, 12-13.

[^14]: *WCA Order* at paras. 25-27.

[^15]: CTIA Petition at 8-10

[^16]: *WCA Order* at para. 27.

[^17]: *See* *WCA Order* at paras. 25-36.

[^18]: CTIA Petition at 10-13.

[^19]: *Compare* CTIA Petition at 10-13 *with* CTIA Comments on the WCA
    Petition at 15-19.

[^20]: *American Telephone and Telegraph Co. v. Central Office
    Telephone, Inc.,* 524 U.S. 214 (1998) (*Central Office*)*.*

[^21]: *Day v. AT&T Corp.* 74 Cal. Rptr. 2d 55, Cal. Dist. Ct. App.
    (1998) (*Day*).

[^22]: *Marcus v. AT&T Corp.,* 938 F. Supp. 1158 (S.D.N.Y. 1996) *aff'd*
    138 F3d 46 (2^nd^ Cir. 1998*)* (*Marcus*)*.*

[^23]: We note that the cases cited in the CTIA Petition were previously
    cited by CTIA and others in the underlying record. *Compare* CTIA
    Petition at 10-13 (and accompanying notes) *with* CTIA Comments on
    the WCA Petition at 15-19 (and accompanying notes). *See also*, for
    example, AT&T Comments on the WCA Petition at 11-13 citing *Marcus*
    and *Day* and at 15 citing *Central Office*; AT&T Reply Comments on
    the WCA Petition at 6 n.18 citing *Day* and *Marcus* and at 12
    citing *Central Office*; BAM Comments on the WCA Petition at 12-15
    citing *Central Office* *Day* and *Marcus*; SBC Reply Comments on
    the WCA Petition at 2 n.6 citing *Central Office* and *Day*; Sprint
    Comments on the WCA Petition at 6 citing *Da**y*****.**

[^24]: *See* *WCA Order* at paras. 15-22.

[^25]: *WCA Order* at paras. 15-18.

[^26]: *WCA Order* at paras. 19-22.