**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. EB-00-MD-022[^1]    |
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| Nova Cellular West, Inc.,        | ** |                              |
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| AirTouch Cellular,               | *  |                              |
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**MEMORANDUM OPINON AND ORDER**

**Adopted: July 18, 2002 Released: July 25, 2002**

By the Commission:

# INTRODUCTION

1.  In this Memorandum Opinion and Order, we deny a Petition for
    Declaratory Ruling filed by Nova Cellular West, Inc. ("Nova").[^2]
    The Petition alleges that, by failing to provide electronic billing
    tape to Nova in connection with numerous cellular telephone service
    rate plans, AirTouch Cellular ("AirTouch") unreasonably restricted
    Nova's ability to resell the service, in violation of section 20.12
    of the Commission's rules[^3] and sections 201(a), 201(b), and
    202(a) of the Communications Act of 1934, as amended ("Act").[^4]
    The Petition further contends that AirTouch unreasonably
    discriminated against Nova by failing to change rate plans for Nova
    in the same timely manner that AirTouch did for other customers, in
    violation of section 202(a) of the Act. We deny Nova's claims
    regarding the provision of electronic billing tape for resale
    purposes, because a settlement and release agreement previously
    executed by Nova and AirTouch waives these claims and limits Nova's
    remedy to seeking enforcement of the settlement agreement itself
    under California law. We also deny Nova's claims about changing rate
    plans, because Nova failed to demonstrate that AirTouch treated Nova
    differently in this regard than any other similarly-situated
    AirTouch customer.

# BACKGROUND

## The Parties 

2.  Nova is a corporation with its principal place of business in
    Encinitas, California.[^5] Under the name "San Diego Wireless," Nova
    provides cellular and other commercial mobile radio service ("CMRS")
    in the San Diego, California area as a reseller of the services of
    facilities-based CMRS providers.[^6] Nova was a reseller of AirTouch
    services in the San Diego area from 1986 until May 1999.[^7]

3.  AirTouch is a corporation with its headquarters in San Francisco,
    California.[^8] AirTouch provides cellular service in the San Diego,
    California Standard Metropolitan Statistical Area ("SMSA")[^9] as a
    common carrier, pursuant to a license issued by the Commission.[^10]

4.  AirTouch offers cellular service pursuant to wholesale rate plans
    (designed for resellers) and retail rate plans (designed for
    AirTouch's own retail customers).[^11] Unlike its retail rate plans,
    AirTouch's wholesale rate plans generally are equipped to provide
    resellers with electronic billing tapes that sets forth the usage of
    the phones assigned to the plans.[^12] According to the Petition,
    such tapes enable larger resellers, like Nova, to bill their
    numerous customers in a timely and efficient manner.[^13]

## California Public Utilities Commission Proceeding

5.  In 1996, Nova sought to purchase from AirTouch access and airtime
    pursuant to certain promotional retail rate plans that Nova believed
    offered more favorable rates than the wholesale rate plans then
    available.[^14] AirTouch informed Nova that Nova could purchase
    under any retail plan for resale, but that electronic billing tapes
    to facilitate Nova's billing of its customers were not available in
    connection with retail plans.[^15]

6.  Dissatisfied with AirTouch's response, Nova filed a complaint
    against AirTouch with the California Public Utilities Commission
    ("CPUC") on December 13, 1996.[^16] The 1996 CPUC Complaint alleged
    that AirTouch unlawfully refused Nova's request to purchase access
    and airtime under AirTouch's "Easy 21 Plan" (and, later, a modified
    version of that plan) "by characterizing it as a retail plan under
    which Nova would not receive a magnetic tape containing call records
    along with a summary hard copy bill."[^17] The 1996 CPUC Complaint
    sought an injunction preventing "AirTouch from continuing to bill
    and collect from Nova for charges under a rate plan other than the
    Easy 21 Plan, as modified, ***or such other favorable plan*** that
    \[Nova\] and \[AirTouch\] agree upon."[^18]

7.  The parties resolved the litigation before the CPUC ("CPUC
    Proceeding") by entering into a Compromise Agreement and General
    Release dated April 30, 1997 ("Settlement and Release"), which
    provides in relevant part:

> In consideration of the mutual covenants contained herein ***and upon
> satisfaction of the conditions set forth at Paragraph 4 below***, the
> parties agree as follows:
>
> 1\. Nova and AirTouch hereby release and forever discharge each other
> \... separately and collectively from ***any and all claims***, liens,
> demands, causes of action, obligations, damages and liabilities, known
> or unknown, that each party has had in the past, or ***now has, or may
> have in the future*** against each other, ***arising out of the
> matters involved in the formal complaint proceeding*** commonly known
> as Nova Cellular West v. AirTouch Cellular, Public Utilities
> Commission of the State of California \....
>
> \* \* \*

4.  As a condition to and on the condition of Nova's actions as required
    > in Paragraph 5 below \[Nova's agreement to dismiss the suit with
    > prejudice\], AirTouch \... (b) ***hereby agrees to make retail
    > pricing plans which are offered by AirTouch in San Diego available
    > to Nova in a wholesale billing tape format whenever AirTouch's
    > currently existing billing system is capable of doing so.***

> \* \* \*

14. This \[Settlement and Release\] shall be construed and enforced
    > pursuant to the domestic laws of the State of California.[^19]

```{=html}
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```
8.  Nova construes the Settlement and Release as an agreement by
    AirTouch that it "would eventually be able to provide \[Nova\] with
    the appropriate bills in electronic format."[^20] Nova further
    maintains that, despite the passage of years, AirTouch failed to
    fulfill this commitment and continued to profess an inability to
    provide electronic billing tapes in connection with retail rate
    plans.[^21]

9.  Nova compared the retail rates for the plans it sought versus the
    wholesale rates for the plans it was receiving, and concluded that
    AirTouch had "overcharged" it by \$221,000.[^22] Accordingly, Nova
    deducted \$221,000 from the amount AirTouch billed.[^23] In
    response, AirTouch demanded full payment, and, on May 11, 1999,
    terminated service to Nova for non-payment.[^24]

## United States District Court Proceeding

10. On May 25, 1999, Nova sued AirTouch in the United States District
    Court for the Northern District of California.[^25] The District
    Court Complaint alleges that AirTouch unlawfully denied Nova access
    to certain rate plans that AirTouch had made available to other
    customers: plans, promotions, and special offers that were not
    available to Nova "because an electronic billing format for these
    offerings has not been developed for resellers."[^26] The District
    Court Complaint asserts violations of sections 201(a), 201(b), and
    202(a) of the Act, as well as the Resale Rule.[^27]

11. Like the 1996 CPUC Complaint, the District Court Complaint stems
    from Nova's inability to obtain from AirTouch electronic billing
    tapes for desired rate plans, and challenges the validity of
    AirTouch's assertion that it lacks the capability to provide such
    tapes.[^28] Specifically, the District Court Complaint avers that,
    "\[a\]s early as May 1997" (just after the parties entered the
    Settlement and Release), AirTouch offered its retail customers
    various plans, discounts, and promotions, but that AirTouch
    effectively denied Nova access to these plans, discounts, and
    promotions by failing to provide an electronic billing format.[^29]
    According to Nova, detailed electronic billing would provide:

> the call detail necessary for NOVA to bill its own customers.
> AIRTOUCH'S unwillingness to provide an electronic bill for any service
> offering thus insulates any such service offering from resale, thereby
> discriminating against NOVA and similarly-situated resale
> customers.[^30]

12. AirTouch moved to dismiss the complaint in its entirety or,
    alternatively, to refer to the Commission the claims arising under
    the Communications Act.[^31] On October 8, 1999, the district court
    dismissed the Communications Act claims, without prejudice, pursuant
    to the doctrine of primary jurisdiction, and stayed the remaining
    state law claims.[^32] The court further ordered Nova to "submit its
    First, Second, Third and Fourth Causes of Action to the FCC."[^33]

## The Instant Proceeding 

13. Based on the district court's ruling, Nova submitted its
    Communications Act claims to this Commission in a Petition for
    Declaratory Ruling, alleging violations of sections 201(a), 201(b),
    and 202(a) of the Act, and the Resale Rule.[^34] In particular, the
    Petition asserts that AirTouch violated the Act by: (1) denying Nova
    favorable rate plans that were offered to other AirTouch
    customers; (2) denying Nova electronic billing made available to
    other customers and not offering Nova electronic billing that
    required little or no modification to AirTouch's existing billing
    system; (3) refusing to provide Nova manual credits, as an
    alternative to electronic billing; and (4) unreasonably
    discriminating against Nova in responding to requests for rate plan
    changes.[^35] Like the District Court Complaint, the Petition
    challenges as invalid AirTouch's justification for not offering Nova
    favorable rate plans that were available to AirTouch's other
    customers -- *i.e.*, that AirTouch's "electronic billing system is
    incapable of providing a billing format that would allow a customer
    to resell the service."[^36]

# DISCUSSION

## The Settlement and Release Bars Nova's Claims Relating to Electronic Billing. 

14. AirTouch asserts as one of its threshold defenses that the
    Settlement and Release, which resolved the CPUC Proceeding,
    constitutes a waiver of Nova's claims in the pending Petition.[^37]
    To a significant extent, we agree. Specifically, as discussed below,
    we find that the Settlement and Release applies and bars the claims
    in the Petition that hinge on the electronic billing tape dispute
    that is the subject of the Settlement and Release. Nova's sole
    remedy regarding these claims, as stipulated in the Settlement and
    Release itself, is to seek enforcement of that agreement under
    California law.

15. The Petition is a continuation of the long-running dispute between
    Nova and AirTouch regarding the provision of electronic billing
    tapes for resale purposes. The 1996 CPUC Complaint challenged
    AirTouch's unwillingness to provide Nova with electronic billing
    tape in connection with AirTouch retail plans.[^38] In order to
    resolve the CPUC Proceeding, the parties, both represented by
    counsel, entered into the Settlement and Release. The Settlement and
    Release obligated AirTouch to provide in the future electronic
    billing tapes for any rate plan − retail or otherwise − whenever it
    was "capable" of doing so.[^39] Based explicitly on that promise
    going forward, Nova released all claims, existing and in the future,
    "arising out of the matters involved" in the CPUC Proceeding −
    *i.e.*, the electronic billing tape dispute.[^40] In other words,
    the release (Paragraph 1) expressly is conditioned upon AirTouch's
    compliance with its agreement to provide billing tape in connection
    with any future rate plan when it was "capable of doing so"
    (Paragraph 4).[^41]

16. In our view, the broad release language contained in Paragraph 1 of
    the Settlement and Release, coupled with the future obligation
    regarding AirTouch's provision of electronic billing tapes contained
    in Paragraph 4 of the Settlement and Release, means that Nova has
    released any future claims regarding AirTouch's obligation to
    provide electronic billing tapes, except a claim seeking enforcement
    under California law of the provisioning obligation contained in the
    Settlement and Release itself. Although releases typically do not
    cover claims based on post-release conduct, the unique combination
    of Paragraphs 1 and 4 leads us to conclude that that is precisely
    what the parties intended here. Reading these Paragraphs in tandem,
    Nova obtained a promise from AirTouch regarding the provision of
    electronic billing tapes for future retail rate plans in exchange
    for Nova relinquishing its right to seek redress regarding such
    provision by means other than enforcement of the Settlement and
    Release. In other words, Nova expressly and deliberately waived its
    right to assert that AirTouch's conduct regarding the provisioning
    of electronic billing tapes violates the Act.

17. Nova disagrees that the release (contained in Paragraph 1 of the
    Settlement and Release) applies to all claims under the Act arising
    from AirTouch's going-forward obligation (contained in Paragraph 4
    of the Settlement and Release) to provide electronic billing
    tape.[^42] In particular, Nova suggests that the release relates
    solely to claims concerning the Easy 21 Plan that was specified in
    the CPUC Complaint, while the billing tape condition pertains to all
    present and future retail plans.[^43]

18. We do not read the release so narrowly. Its language is not limited
    to the Easy 21 Plan, or to rate plans enumerated in the CPUC
    Complaint. Rather, the release, by its terms, applies to all claims
    "arising out of the matters involved in" the CPUC Complaint.[^44] In
    the CPUC Proceeding, Nova sought to enjoin AirTouch from billing
    Nova under a "rate plan other than the Easy 21 Plan \... ***or such
    other favorable plan*** that the complainant and defendant agree
    upon."[^45] The matters arising out of the CPUC Proceeding thus
    transcend the Easy 21 Plan. Paragraph 4 of the Settlement and
    Release, which expressly applies to future AirTouch rate plans,
    without limitation, further illustrates the breadth of the relief
    sought by Nova in the CPUC Proceeding.[^46]

19. Nova's strained construction of the Settlement and Release thus
    ignores the inclusive wording of the release and the scope of the
    CPUC Complaint. Moreover, Nova's interpretation overlooks the fact
    that the release specifically was conditioned on AirTouch's
    agreement with respect to all future rate plans.[^47] Consequently,
    we think that the Settlement and Release, fairly read as a whole,
    releases all claims in the Petition pending before us that relate to
    the electronic billing tape dispute.[^48] Nova's sole remedy for a
    breach of AirTouch's obligation in Paragraph 4 to provide electronic
    billing tape is to seek enforcement of that Paragraph pursuant to
    California law.[^49] Therefore, we must determine whether Nova's
    claims under the Act in this proceeding hinge on the scope of
    AirTouch's obligation under the Settlement and Release to provide
    electronic billing tapes. Such claims, to the extent they exist,
    must be dismissed as waived.

20. The gist of Nova's Petition pertains to precisely the same dispute
    about AirTouch's provision (or lack thereof) of electronic billing
    tapes that Nova asserted was at issue in the CPUC Proceeding. In
    particular, Nova's Petition acknowledges that, in order to establish
    the violations of the Act alleged, Nova must demonstrate "AirTouch's
    ***capability*** to provide an electronic billing format."[^50] In
    fact, in the district court case, Nova unequivocally stated that all
    of its Communications Act claims hinge on the billing tape dispute:

> This lawsuit arises from the incredulity of AirTouch's claim that
> their "currently existing billing system" was incapable of providing
> Nova with retail rates in an electronic format \.... \[Nova\] alleges
> that AirTouch's continuing claim that they lacked the capability to
> bill plaintiff accordingly was without merit.
>
> \* \* \*
>
> \[T\]his is a straightforward dispute over AirTouch's refusal to
> provide \[Nova\] with a billing tape.[^51]

Indeed, Nova admits that the Settlement and Release covers the conduct
at issue here. Specifically, in support of its claim that AirTouch acted
unreasonably, Nova affirmatively contends that AirTouch's conduct
***breaches the Settlement and Release*** because, according to Nova,
AirTouch is capable of providing electronic billing tape to Nova by one
method or another.[^52] Therefore, with only a couple of exceptions
addressed below,[^53] Nova's purported claims under the Act here fall
within the scope of the Settlement and Release, and hence must be
dismissed as waived.

21. A closer examination of the particulars of Nova's claims buttresses
    this conclusion, because each of these claims hinges on AirTouch's
    conduct regarding the provision of electronic billing tapes. As set
    forth above, the Petition specifies four ways in which AirTouch
    allegedly violated the Act. First, the Petition alleges that
    AirTouch denied Nova 20 retail (and five wholesale) rate plans that
    were offered to other customers.[^54] Nova alleges that it could not
    take advantage of those retail plans "because AirTouch did not offer
    or make available to Nova any form of electronic billing with those
    plans."[^55] Therefore, to the extent that Nova bases its claim on
    these retail plans, the claim is barred by the Settlement and
    Release. We note that the five ***wholesale*** plans cited by Nova,
    however, do not appear to relate to the electronic billing issue.
    Consequently, Nova has not relinquished its rights to have us decide
    claims under the Act regarding those plans, and we address them
    below.[^56]

22. Second, the Petition alleges that AirTouch failed to afford Nova a
    form of electronic billing with its rate plans, thereby denying Nova
    the ability to resell cellular services on the same terms and
    conditions provided to other AirTouch customers.[^57] This claim
    explicitly rests upon the electronic billing dispute and,
    accordingly, the Settlement and Release bars the claim.

23. Third, the Petition alleges that, if AirTouch proves that it could
    not provide electronic billing to Nova, then AirTouch failed
    manually to adjust its monthly bills to Nova and calculate
    appropriate credits so that Nova would receive the same rates as
    AirTouch's other customers.[^58] In other words, Nova contends that
    AirTouch could have compensated for its failure to provide
    electronic billing by manually adjusting Nova's bills each
    month.[^59] We view this alternative argument as part and parcel of
    the underlying dispute regarding electronic billing covered by the
    Settlement and Release, in which AirTouch committed to supply
    electronic billing tape to Nova whenever AirTouch was capable of
    doing so. Nova's contention that AirTouch has breached this
    commitment -- by failing to provide manual credits or otherwise --
    falls within the scope of the Settlement and Release.[^60]

24. Fourth, the Petition claims that AirTouch failed to change rate
    plans offered to Nova in the same timely manner that AirTouch
    changed rate plans for other customers.[^61] This claim does not
    concern AirTouch's conduct regarding the provision of electronic
    billing tapes. Thus, the Settlement and Release does not appear to
    bar this claim. Accordingly, we will analyze it on the merits
    below.[^62]

25. In sum, because the parties have entered into the Settlement and
    Release agreement, we do not need to determine if the actions of
    AirTouch with regards to the electronic billing tape in the instant
    proceeding are in violation of the Act. If Nova wishes to pursue
    those claims, it must do so through enforcement of the Settlement
    and Release under California law. Accordingly, we deny Nova's
    Petition with respect to those claims. Consequently, only two of
    Nova's claims remain − whether AirTouch unlawfully denied Nova
    access to five wholesale rate plans that AirTouch offered to other
    customers, and whether AirTouch unreasonably discriminated against
    Nova by not timely responding to Nova's rate plan change requests.

## Nova Failed to Submit Adequate Proof of Its Remaining Claims.

**1. Access to Wholesale Plans**

26. According to the Petition, AirTouch denied Nova access to rate plans
    that AirTouch offered to other customers, in violation of sections
    201(a), 201(b), and 202(a) of the Act, as well as the Resale
    Rule.[^63] Specifically, the Wheatland Declaration identifies five
    wholesale plans in AirTouch's discovery responses that "AirTouch
    never made available to Nova and that Nova did not even know existed
    until AirTouch" served its discovery responses.[^64] Mr. Wheatland
    notes that these five plans would have been more favorable to Nova
    than the wholesale plans that AirTouch actually offered to Nova
    during the dispute period.[^65]

27. The AirTouch discovery response referenced in the Wheatland
    Declaration is Table 3, which lists AirTouch rate plans and the
    dates they were available.[^66] In the cover letter accompanying
    Table 3, counsel for AirTouch indicated that AirTouch compiled the
    information contained in the table by searching numerous databases,
    and that plans could have been listed that never were actually made
    available to any customer.[^67] AirTouch later corrected Table 3,
    stating that the five wholesale plans in question were "never
    actually 'rolled out' commercially and made available to any
    customer."[^68] In response, Nova submitted no contrary evidence.
    Consequently, Nova has not established that AirTouch ever made
    available to any of its customers the five wholesale plans
    identified by Mr. Wheatland. Therefore, Nova has failed to submit
    sufficient proof of its claim that it was denied access to those
    plans.

    **2. Rate Plan Changes**

28. The Petition alleges that AirTouch unreasonably discriminated
    against Nova, in violation of section 202(a), by failing "to change
    rate plans for \[Nova\] in the same timely \... manner that it
    changed rate plans for its other customers."[^69] In resolving
    discrimination claims under section 202(a), the Commission employs a
    three-step inquiry: (1) whether the services at issue are
    "like"; (2) if so, whether there are differences in the terms and
    conditions pursuant to which the services are provided; and (3) if
    there are such differences, whether they are reasonable.[^70] When a
    complainant establishes the first two components, the burden of
    persuasion shifts to the defendant carrier to justify the
    discrimination as reasonable.[^71] As discussed below, we find that
    Nova has failed to demonstrate that there were differences in the
    terms and conditions under which AirTouch provided like
    communication service; we further find that, in any event, any
    discrimination was reasonable.

29. Nova bases its allegation of discriminatory treatment primarily on
    the fact that, as a general rule, AirTouch changes cellular rate
    plans more quickly for retail customers than for resellers.
    Specifically, Nova contends that (1) AirTouch changes rate plans for
    a retail customer within one business day, while AirTouch takes 20
    business days or more to change rate plans for a reseller, and (2)
    AirTouch requires less change documentation from retail customers
    than resellers.[^72]

30. In support of this claim, Nova again relies on the Wheatland
    Declaration, which states that, as an AirTouch retail customer, Mr.
    Wheatland is able to effectuate a rate plan change by telephone in
    one day.[^73] In addition, Nova relies on AirTouch's interrogatory
    response indicating that retail customers typically request such a
    change by telephone, and that "\[t\]he rate plan change becomes
    effective as agreed upon with the customer but no sooner than the
    next business day."[^74] According to that interrogatory response,
    AirTouch representatives provide retail customers the option of
    changing rate plans at the end of the current billing cycle (which
    AirTouch prefers).[^75]

31. With regard to resellers, AirTouch's discovery responses reveal that
    AirTouch requires some documentation to effectuate a plan change.
    Prior to November 1998, resellers had to submit rate plan change
    requests to AirTouch either on a prepared form or by letter listing
    each mobile phone number for which the change was requested.[^76]
    This process purportedly took longer for reseller rate plan changes
    than for retail rate plan changes, because AirTouch needed to alter
    the service record of each individual customer served by the
    reseller.[^77] After November 1998, AirTouch still required
    resellers to submit the rate plan change requests via faxed forms;
    however, AirTouch's computer system then was able to process the
    changes in batches, rather than individually.[^78] Nevertheless, the
    change request form states that "AirTouch will make reasonable
    efforts to process the rate plan changes requested within twenty
    days" after AirTouch accepts the request in writing.[^79]

32. This record falls short of establishing a violation of section
    202(a). Beyond Mr. Wheatland's anecdotal recollection that, as a
    retail customer, he could change rate plans in a single day, there
    is no evidence of how quickly AirTouch actually effectuates retail
    rate plan changes. Rather, the record only indicates that AirTouch
    and the customer agree on the effective date of any retail plan
    change, and that AirTouch preferred to make such changes effective
    as of the end of a billing cycle.[^80] Thus, the record does not
    permit us to conclude that AirTouch does, in fact, treat resellers
    differently than retail customers regarding change requests.
    Moreover, AirTouch's practice, based on this record, appears to be
    reasonable. Nova does not dispute that making rate plan changes for
    a reseller that has numerous individual mobile phone subscribers
    could be more time consuming than making such a change for a single
    retail customer. Nor is there any basis for disputing that requiring
    resellers to submit a written request on a standardized form is
    reasonable.

33. Nova alleges further examples of "damaging, unreasonably
    discriminatory treatment."[^81] First, Nova asserts that it
    requested a credit for AirTouch's 11-day delay in changing a
    wholesale rate plan as requested in May 1997, and that AirTouch did
    not approve the credit for almost nine months.[^82] Nova provides no
    information about the timing of a comparable credit for a
    similarly-situated retail customer. Thus, Nova has failed to
    establish a *prima facie* case of discrimination under section
    202(a).

34. Second, Nova argues that, in November 1998, AirTouch discontinued
    two of its wholesale rate plans with only one day notice, and that
    AirTouch forced Nova to choose new wholesale rate plans that were
    less favorable, "without according Nova the benefits of the AirTouch
    policy that allowed customers to receive plans beyond the stated
    expiration date."[^83] Correspondence attached to the Wheatland
    Declaration confirms that Nova was unhappy with the one-day notice,
    but it also confirms that AirTouch sent all resellers, including
    Nova, the same notification at the same time.[^84] Again, therefore,
    Nova has not established a violation of section 202(a), based on
    this record.[^85]

35. Finally, Nova complains that in February 1999, it requested a
    wholesale rate plan change and that, despite ultimately submitting
    the requisite standard form on March 24, 1999, AirTouch never
    complied with the request.[^86] Nova makes no suggestion that
    AirTouch did not require other similarly-situated customers to
    submit such wholesale rate plan change requests in writing.
    Moreover, as indicated above, Nova has not demonstrated that
    AirTouch's process for changing wholesale rate plans is
    unreasonable. Furthermore, Nova overlooks the fact that, after
    demanding payment, AirTouch terminated service to Nova on May
    1, 1999. We cannot conclude that AirTouch acted unreasonably in not
    changing Nova's wholesale rate plan when Nova apparently had not
    paid for service. Yet again, therefore, Nova has not established a
    violation of section 202(a), based on this record.

# conclusion

36. In sum, we conclude that Nova's claims relating to AirTouch's
    failure to provide electronic billing tape are the subject of the
    Settlement and Release. Thus, Nova cannot assert those claims in
    this proceeding, and we deny this aspect of its Petition. Nova's
    proper recourse is to seek enforcement of the Settlement and Release
    under California law, as provided in that agreement. In addition,
    because Nova failed to submit sufficient evidence, we also deny its
    remaining claims relating to (1) denial of access to five wholesale
    plans, and (2) discrimination in the time it takes AirTouch to
    respond to rate plan change requests.[^87]

# ordering clauses

37. ACCORDINGLY, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j), 201,
    and 202(a) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 151, 154(i), 154(j), 201, and 202(a), and section 20.12 of the
    Commission's rules, 47 C.F.R. § 20.12, that the Petition filed by
    Nova against AirTouch IS DENIED in its entirety.

38. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), and 4(j) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i),
    and 154(j), that the Motion to Dismiss, filed on April 3, 2000; the
    Application for Review, filed on September 11, 2000; the Motion to
    Strike or Exclude AirTouch Cellular Proposed Exhibits from the
    Evidentiary Record, filed on May 4, 2001; and the Further Motion to
    Strike or Exclude AirTouch Cellular Proposed Reply Exhibits from the
    Evidentiary Record, filed on May 23, 2001, ARE DISMISSED as moot.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch Secretary

[^1]: The file number previously assigned to this matter was ENF-00-002.
    When citing to the parties' pleadings, this Order refers to the
    prior file number.

[^2]: Petition for Declaratory Ruling, File No. ENF-00-002 (filed Feb.
    21, 2000) ("Petition").

[^3]: 47 C.F.R § 20.12, effective September 23, 1996, 61 Fed. Reg. 38388
    (July 24, 1996), *modified*, effective January 10, 2000, 64 Fed.
    Reg. 61022 (Nov. 9, 1999) ("Resale Rule").

[^4]: 47 U.S.C. §§ 201(a), 201(b), and 202(a).

[^5]: Petition, Exhibit 1 (First Amended Complaint for Damages and
    Injunctive Relief, *Nova Cellular West, Inc. v. AirTouch Cellular,
    Inc.*, No. C 99-2142 \[CAL\], United States District Court, Northern
    District of California (filed May 25, 1999)) ("District Court
    Complaint") at 2, ¶ 4.

[^6]: *Id.*; Joint Stipulation of Stipulated Facts and Disputes
    Remaining, File No. ENF-00-002 (filed Apr. 14, 2000) ("Joint
    Stipulation") at 2, ¶¶ 2-3.

[^7]: Petition, Exhibit 8 (Wheatland District Court Declaration) at 2, ¶
    4.

[^8]: Petition, Exhibit 1 (District Court Complaint) at 2, ¶ 5.

[^9]: The Commission uses SMSAs, which the Office of Management and
    Budget defines based on population statistics, to allocate cellular
    radio licenses.

[^10]: Response to Petition for Declaratory Ruling, File No. ENF-00-002
    (filed Apr. 3, 2000) ("Response to Petition") at 5-6, ¶ 13;
    Petition, Exhibit 1 (District Court Complaint) at 2, ¶ 5. At the
    time Nova filed the Petition, the licensee of record for the San
    Diego B-block cellular license was Vodafone AirTouch Licensees, LLC.
    As of April 3, 2000, the license was transferred to Cellco
    Partnership, a subsidiary of Verizon Wireless. *See* Reply of
    AirTouch Cellular, File No. ENF-00-002 (filed Apr. 18, 2000)
    ("Reply") at 1 n.1.

[^11]: *See* Nova Cellular West, Inc. d/b/a \[sic\] Consolidated Reply
    to AirTouch Cellular's Response to Petition for Declaratory Ruling &
    Motion to Dismiss, File No. ENF-00-002 (filed Apr. 11, 2000) ("Nova
    Consolidated Reply") at 2; Response to Petition, Exhibit 7
    (Declaration of Monica Chang) ("Chang Declaration") at 1, ¶¶ 2-3.

[^12]: Response to Petition, Exhibit 7 (Chang Declaration) at 1, ¶¶ 2-3;
    Petition, Exhibit 8 (Declaration of Paul Wheatland in Opposition to
    Defendant's Motion to Refer to the FCC, dated August 6, 1999)
    ("Wheatland District Court Declaration") at 2-3, ¶ 6.

[^13]: Petition, Exhibit 1 (District Court Complaint) at 5-6, ¶ 19.

[^14]: *Id.* at 2, ¶¶ 4-5.

[^15]: *Id.*

[^16]: Nova Consolidated Reply, Exhibit 16 (Amended Complaint & Request
    for Immediate Cease & Desist Order, *Nova Cellular West, Inc. d/b/a
    San Diego Cellular v. AirTouch Cellular of San Diego*, C 96-12-027,
    Before the Public Utilities Commission of the State of California
    (filed Apr. 10, 1997) ("1996 CPUC Complaint")).

[^17]: *Id.* at 2.

[^18]: *Id.* at 3-4 (emphasis added).

[^19]: Petition, Exhibit 11 (Settlement and Release) at 1-2, 5, ¶¶ 1, 4,
    14 (emphasis added); *see* Joint Stipulation at 3, ¶ 11.

[^20]: Petition, Exhibit 8 (Wheatland District Court Declaration) at 2,
    ¶ 5.

[^21]: *Id.* at 2-3, ¶¶ 6-7.

[^22]: Petition, Exhibit 1 (District Court Complaint) at 4-6, ¶¶ 15-20.

[^23]: *Id.* at 6-7, ¶¶ 20-23; *see* Joint Stipulation at 3, ¶ 7.

[^24]: Petition, Exhibit 1 (District Court Complaint) at 6-7, ¶¶ 23-25;
    *see* Joint Stipulation at 3, ¶ 8.

[^25]: *Id.*; *see* Joint Stipulation at 4, ¶ 13*.*

[^26]: *Id.* at 5-6, ¶ 19.

[^27]: Petition, Exhibit 1 (District Court Complaint) at 7-10, ¶¶ 27-46.
    In addition, the District Court Complaint asserts six state law
    claims, including intentional interference with prospective economic
    opportunity, intentional misrepresentation, unfair business
    practices, intentional interference with contractual relations,
    conversion, and trespass, as well as a cause of action seeking
    injunctive relief. *Id.* at 10-17, ¶¶ 47-87.

[^28]: Petition, Exhibit 8 (Wheatland District Court Declaration) at
    1-3, ¶¶ 2, 5-7.

[^29]: Petition, Exhibit 1 (District Court Complaint) at 4-6, ¶¶ 15-19.

[^30]: *Id.* at 5-6, ¶ 19.

[^31]: Nova Consolidated Reply, Exhibit 13 (Defendant AirTouch
    Cellular's Notice of Motion to Dismiss the First Amended Complaint,
    *Nova Cellular West, Inc. dba San Diego Wireless v. AirTouch
    Cellular, Inc.*, No. C 99-2142 \[CAL\], United States District
    Court, Northern District of California (filed June 29, 1999)) at
    1-2.

[^32]: Petition, Exhibit 2 (Order Granting in Part and Denying in Part
    AirTouch Cellular's Motion to Dismiss the First Amended Complaint,
    *Nova Cellular West, Inc. dba San Diego Wireless v. AirTouch
    Cellular, Inc.*, No. C 99-2142 \[CAL\], United States District
    Court, Northern District of California (dated Oct. 8, 1999)) at 2.

[^33]: *Id.*

[^34]: *Id.* at 1, 6-10.

[^35]: *Id.* at 2. *See also* Nova Consolidated Reply at 1-3; Opening
    Brief of Nova Cellular West, Inc. d/b/a San Diego Wireless
    Communications, File No. ENF-00-002 (filed Apr. 13, 2001) ("Nova
    Opening Brief") (Summary) at 1; Reply Brief of Nova Cellular West,
    Inc. d/b/a San Diego Wireless Communications, File No. ENF-00-002
    (filed May 4, 2001) ("Nova Reply Brief") at i, 1-8.

[^36]: Petition at 5-6. *See* Nova Opening Brief at 5-6; Nova
    Consolidated Reply at 16-17; Nova Reply Brief at 8. AirTouch filed a
    Motion to Dismiss, and later an Application for Review, asserting
    that the manner in which Commission staff structured this proceeding
    deprived AirTouch of a fair opportunity to respond to Nova's
    allegations. Motion to Dismiss, File No. ENF-00-02 (filed Apr. 3,
    2000) ("Motion to Dismiss"); Application for Review, File No.
    ENF-00-002 (filed Sept. 11, 2000) ("Application for Review").
    AirTouch's assertions are meritless. The Commission has broad
    discretion in managing its proceedings. *See* 47 U.S.C. §§ 154(i)
    and 154(j); *see also Global Crossing Telecommunications, Inc. v.
    FCC*, 259 F.3d 740, 748 (D.C. Cir. 2001) (the Commission "'enjoys
    wide discretion in fashioning its own procedures,'" and is
    authorized by section 208 "to investigate a complaint 'in such a
    manner and by such means as it shall deem proper'") (quoting *City
    of Angels Broad., Inc. v. FCC*, 745 F.2d 656, 664 (D.C. Cir. 1984);
    47 U.S.C. § 208). In doing so here, Commission staff afforded
    AirTouch ample opportunity to respond to Nova's allegations. In
    particular, Commission staff permitted AirTouch to conduct
    significant discovery and file several briefs responding to Nova's
    claims. *See, e.g.*, Reply of Airtouch Cellular, File No. ENF-00-002
    (filed Apr. 18, 2000) ("Reply"); Initial Brief of AirTouch Cellular,
    File No. ENF-00-002 (filed Apr. 13, 2001) ("AirTouch Initial
    Brief"); Reply Brief of AirTouch Cellular, File No. ENF-00-002
    (filed May 4, 2001) ("AirTouch Reply Brief"). Indeed, the record in
    this proceeding is quite voluminous − the parties took four
    depositions and submitted a total of more than 100 exhibits.
    Further, contrary to AirTouch's assertion, Commission staff
    expressly ruled that Nova bears the burden of proof. Letter from
    Roderick A. Mette, Attorney, Market Disputes Resolution Division,
    Enforcement Bureau, to Peter A. Casciato, counsel for Nova, and
    Kenneth D. Patrich, counsel for AirTouch, File No. ENF-00-02 (dated
    Apr. 21, 2000). In any event, because we are denying the Petition,
    we dismiss as moot both the Motion to Dismiss and the Application
    for Review.

[^37]: Response to Petition at 30, ¶¶ 72-73; AirTouch Initial Brief at
    ii, 22-23.

[^38]: Nova Consolidated Reply, Exhibit 16 (CPUC Complaint) at 2.

[^39]: Petition, Exhibit 11 (Settlement and Release) at 2, ¶ 4. The
    Resale Rule requires CMRS carriers to provide electronic billing
    only if it can be made available "without significant alterations"
    to the carrier's system. *See Interconnection and Resale Obligations
    Pertaining to Commercial Mobile Radio Services*, Memorandum Opinion
    and Order on Reconsideration, FCC 99-250, 17 Comm. Reg. (Pike &
    Fisher) 518, ¶ 54 (rel. Sept. 27, 1999) ("*CMRS Resale
    Reconsideration Order*"). Nova construes the affirmative obligation
    contained in Paragraph 4 of the Settlement and Release as holding
    AirTouch to a stricter standard, contending that AirTouch must
    provide electronic billing tapes whenever it is capable of doing so,
    regardless of the scope of alterations necessary. *See* Nova
    Consolidated Reply at 16-17.

[^40]: Petition, Exhibit 11 (Settlement and Release) at 1, ¶ 1.

[^41]: *Id.* at 1 ("\[U\]pon satisfaction of the conditions set forth at
    Paragraph 4 below, the parties agree as follows \....").

[^42]: Nova Consolidated Reply at 16-17.

[^43]: *See* Nova Consolidated Reply at 17; Nova Reply Brief at 8.

[^44]: Petition, Exhibit 11 (Settlement and Release) at 1, ¶ 1.

[^45]: Nova Consolidated Reply, Exhibit 16 (CPUC Complaint) at 3-4
    (emphasis added).

[^46]: Petition, Exhibit 11 (Settlement and Release) at 2, ¶ 4; *see
    also* Petition, Exhibit 8 (Wheatland District Court Declaration) at
    2, ¶ 5.

[^47]: Nova further suggests that the Commission somehow can avoid
    deciding the waiver issue, because its claim that AirTouch breached
    the Settlement and Release is covered by the state causes of action
    for intentional misrepresentation and unfair business practices,
    which the federal district court stayed. Nova Consolidated Reply at
    17-18. Regardless of the substance of any state law claim, however,
    the Settlement and Release between Nova and AirTouch released all
    claims under the Act relating to the billing dispute and thus bars
    such claims here.

[^48]: *See, e.g.*, *In re: Crystal Properties, Ltd.*, 268 F.3d 743, 748
    (9^th^ Cir. 2001) (quoting *Kennewick Irrigation Dist. v. United
    States*, 880 F.2d 1018, 1032 (9^th^ Cir. 1989)) (under California
    law, a "written contract must be read as a whole and every part
    interpreted with reference to the whole.").

[^49]: Petition, Exhibit 11 (Settlement and Release) at 5, ¶ 4.

[^50]: Petition at 5-6 (emphasis added). This is consistent with the
    District Court Complaint, which alleges that AirTouch refused to
    provide various rate plans and promotions to Nova "because an
    electronic billing format for these offerings has not been developed
    for resellers." Petition, Exhibit 1 (District Court Complaint) at
    5-6, ¶ 19. According to Nova, "\[t\]he detailed electronic bill NOVA
    receives from AIRTOUCH provides the call detail necessary for NOVA
    to bill its own customers. AIRTOUCH'S unwillingness to provide an
    electronic bill for any service offering thus insulates any such
    service offering from resale, thereby discriminating against NOVA
    and similarly-situated resale customers." *Id*.

[^51]: Response to Petition, Exhibit 6 (Plaintiff's Opposition to
    Defendant's Motion to Dismiss the First Amended Complaint) at 1.

[^52]: Petition at 5; Nova Opening Brief at 15-16.

[^53]: *See* Section III(B), *infra*.

[^54]: Petition at 2-6, 8; *see* Nova Consolidated Reply at 3, 14-18;
    Nova Opening Brief at 1-2 (Summary), 2-5; Nova Reply Brief at 6-7;
    Further Evidentiary Submission of Nova Cellular West, Inc. dba San
    Diego Wireless, File No. ENF-00-002 (filed Dec. 5, 2000) ("Nova
    Further Submission"), Exhibit 22 (Declaration of Paul Wheatland)
    ("Wheatland Declaration") at 1, ¶ 2.

[^55]: *Id*. at 4, ¶ 8.

[^56]: *See* Section III (B), *infra*.

[^57]: Petition at 2-6, 8-9; *see* Nova Opening Brief at 1-4 (Summary),
    5-14; Nova Reply Brief at 2-3.

[^58]: Petition at 2, 9-10; *see* Nova Opening Brief at 1, 4 (Summary),
    14-15; Nova Reply Brief at 2-3.

[^59]: Nova Opening Brief at 15.

[^60]: Petition, Exhibit 11 (Settlement and Release) at 5, ¶ 14.

[^61]: Petition at 2.

[^62]: *See* Section III (B), *infra*.

[^63]: Petition at 2, 6-8*.* *See* Nova Consolidated Reply at 1-3,
    13-21; Nova Opening Brief at 2-5, 22-25.

[^64]: Nova Further Submission, Exhibit 22 (Wheatland Declaration) at 1,
    ¶ 3. *See* Nova Opening Brief at 2-3; Nova Reply Brief at 6-7.

[^65]: Nova Further Submission, Exhibit 22 (Wheatland Declaration) at 1,
    ¶ 3.

[^66]: Nova Further Submission, Exhibit 23.

[^67]: *Id.*, Letter dated November 9, 2000 to Peter Casciato, counsel
    for Nova, from Timothy J. Cooney, counsel for AirTouch, at 1 n.1.

[^68]: AirTouch Exhibits, Vol. II, File No. ENF-00-02 (filed Apr. 4,
    2001), Exhibit 65 (Letter dated January 3, 2001 from Timothy J.
    Cooney, counsel for AirTouch, to Peter Casciato, counsel for Nova)
    at 1-2.

[^69]: Petition at 2. *See id.* at 10; Nova Opening Brief at 16-18. Nova
    suggests that the alleged discriminatory treatment also violates
    section 201. *Id.* Because the conduct at issue is discrimination,
    we view these claims to be the same. Therefore, we analyze the claim
    under section 202(a), which, as discussed below, entails a
    burden-shifting analysis that is more favorable to the Complainant.

[^70]: *See, e.g.*, *MCI Telecommunications Corp. v. FCC*, 917 F.2d 30,
    39 (D.C. Cir. 1990).

[^71]: *See id.* *See also National Communication Ass'n, Inc. v. AT&T
    Corp.*, 238 F.3d 124, 129-30 (2d Cir. 2001).

[^72]: Nova Opening Brief at 16-17.

[^73]: Nova Further Submission, Exhibit 22 (Wheatland Declaration) at
    9-10, ¶ 15.

[^74]: Nova Further Submission, Exhibit 18 (Response to Interrogatory
    No. 9) at 11-12.

[^75]: *Id.*

[^76]: *Id.*, Exhibit 18 (Response to Interrogatory No. 10) at 12.

[^77]: *Id*.

[^78]: *Id.*

[^79]: *Id.* at 12-13.

[^80]: *Id.*, Exhibit 18 (Response to Interrogatory No. 9) at 11-12.

[^81]: Nova Opening Brief at 17.

[^82]: Nova Further Submission, Exhibit 22 (Wheatland Declaration) at 8,
    ¶ 12 and Attachment G; Nova Opening Brief at 17.

[^83]: Nova Opening Brief at 17; Nova Further Submission, Exhibit 22
    (Wheatland Declaration) at 8-9, ¶ 13.

[^84]: Nova Further Submission, Exhibit 22 (Wheatland Declaration),
    Attachment H.

[^85]: Nova further alleges that, in November 1998, it sought the
    equipment discounts and expanded local coverage available in
    AirTouch retail plans. Nova Opening Brief at 18; Nova Further
    Submission, Exhibit 22 (Wheatland Declaration) at 9, ¶ 14. This
    dispute, too, involves AirTouch's failure to provide electronic
    billing tapes to resellers in connection with retail plans and thus
    is barred by the Settlement and Release, for all of the reasons
    explained in Section III (A), *supra*.

[^86]: Nova Opening Brief at 18; Nova Further Submission, Exhibit 22
    (Wheatland Declaration) at 9-10, ¶ 15 and Attachment I.

[^87]: Two Nova motions to strike AirTouch exhibits remain pending.
    Motion to Strike or Exclude AirTouch Cellular Proposed Exhibits from
    the Evidentiary Record, File No. ENF-00-002 (filed May 4, 2001);
    Further Motion to Strike or Exclude AirTouch Cellular Proposed Reply
    Brief Exhibits from the Evidentiary Record, File No. ENF-00-002
    (filed May 23, 2001). Because both motions pertain to exhibits on
    which this Order does not rely, we dismiss both motions as moot. In
    addition, on December 5, 2000, Nova filed a motion for the public
    release of AirTouch Table 3, which lists AirTouch rate plans and the
    dates they were available during the dispute period. Motion of Nova
    Cellular West, Inc. for Public Release of AirTouch Table 3, File No.
    ENF-00-002 (filed Dec. 5, 2000). Given the disposition of this
    Petition, we also dismiss this motion as moot.