Before the

[Federal Communications Commission]{.smallcaps}

Washington, D.C. 20554

In the Matter of )

)

**RADIOFONE, INC.,** )

#  Complainant, )

)

v\. ) File No. WB/ENF-F-96-008

)

**BELLSOUTH MOBILITY, INC.,** )

Defendant. )

## MEMORANDUM OPINION AND ORDER

**Adopted**: October 28, 1999 **Released:** October 29, 1999

By the Chief, Enforcement and Consumer Information Division, Wireless
Telecommunications Bureau:

######### 

#########  1. In this action, the Chief, Enforcement and Consumer Information Division, Wireless Telecommunications Bureau, pursuant to delegated authority, denies a petition for reconsideration, filed by Radiofone, Inc. (hereinafter, "Radiofone") on May 10, 1999, of a Memorandum Opinion and Order (hereinafter, "*Order"*) denying the above-captioned formal complaint.[^1] An opposition to Radiofone's petition was filed by BellSouth Mobility, Inc. (hereinafter, "BMI") on May 21, 1999, and Radiofone filed its Reply on June 3, 1999. For the reasons set forth below, we conclude that Radiofone has not stated a basis for reconsidering the referenced *Order*.

2\. In the *Order,* we denied a formal complaint, pursuant to Section
208 of the Act,[^2] filed by Radiofone against BMI. Radiofone's
complaint and our reasons for denying it are fully described in the
*Order*. In brief summary, Radiofone contended that BMI, prior to May
20, 1990, unlawfully discriminated against Radiofone's subscribers in
the application of charges for cellular roaming services, in violation
of Section 202(a) of the Communications Act of 1934, as amended,[^3] and
that BMI, during the period between 1988 and 1993, engaged in a pattern
of anti-competitive conduct, in violation of Section 314 of the Act.[^4]
In the *Order*, we concluded that Radiofone's claim that BMI had
unlawfully discriminated against Radiofone's subscribers with respect to
roaming charges should not be relitigated before the Commission because
the claim had previously been resolved by a settlement agreement under
the aegis of the Louisiana Public Service Commission, which then had
jurisdiction over the matter.[^5] We further concluded that Radiofone's
Section 314 claim should be denied because that section of the Act is
not applicable to domestic cellular radiotelephone services and, in any
event, Radiofone had not made a factual showing that BMI had engaged in
a pattern of anti-competitive conduct violative of the Act.[^6]

3\. Radiofone seeks reconsideration of the *Order* in only one respect.
Radiofone states it has filed its petition "to bring to the Bureau's
attention the Commission's August 15, 1996. *Second Report and Order and
Third Notice of Proposed Rulemaking* in CC Docket No. 94-54 (*"Second
Report")* [^7] which was issued after the close of the briefing cycle in
this proceeding."[^8] In the *Second Report* the Commission, among other
things, revised Section 20.12 of its Rules[^9] to require other classes
of Commercial Mobile Radio Service (hereinafter, "CMRS") providers, in
addition to cellular carriers, to provide manual roamer services to
subscribers of other service providers. It also sought public comments
on whether the obligations of CMRS providers, with respect to roamer
services, should be expanded to require the provision of automatic
roamer services.[^10] In reaching its decision to prescribe rule
revisions requiring additional CMRS providers to offer roamer service,
the Commission rejected an argument in the rulemaking proceeding by
BMI's corporate parent, BellSouth Corporation, that roaming is merely a
billing service and not a common carrier service.[^11] Radiofone notes
in its petition that BMI made a similar argument in this complaint
proceeding.[^12] Radiofone argues that the Commission's determination in
the *Second Report,* that roaming is a communications common carrier
service, is inconsistent with our decision in the *Order* to dismiss
Radiofone's rate discrimination claim because of the prior disposition
of the matter under the aegis of the Louisiana Public Service
Commission.[^13]

4\. We did not defer to the prior disposition by the Louisiana PSC
because we considered roaming to be a non-common carrier billing and
collection service. Rather, the entire discussion of this issue in the
*Order* was based on the premise that roaming is a common carrier
service.[^14] We determined that we should defer to the disposition by
the state PSC of Radiofone's claim of discriminatory roaming rates
because such alleged unreasonable discrimination occurred prior to the
1993 amendments[^15] to Section 332 of the Act,[^16] when BMI's cellular
roaming service rates were subject to regulation by the Louisiana
PSC.[^17] In light of the prior disposition of Radiofone's
discrimination claim by the PSC, we concluded that we should not
"re-litigate a matter that has been already satisfactorily resolved
under the aegis of a state agency that had jurisdiction at the time that
the acts complained of occurred."[^18]

5\. In view of the forgoing, we have determined that Radiofone has not
stated a basis for reconsidering the *Order*. We conclude, therefore,
that Radiofone's petition for reconsideration should be denied.

6\. Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 4(j) and 405
of the Communications Act of 1934, as amended,[^19] and Sections 0.321
and 1.106 of the Commission' Rules,[^20] that the petition for
reconsideration filed by Radiofone on May 10, 1999, IS DENIED..

FEDERAL COMMUNICATIONS COMMISSION

Catherine W. Seidel

Chief, Enforcement and Consumer Information Division

Wireless Telecommunications Bureau

[^1]: *Radiofone, Inc. v. BellSouth Mobility, Inc.**, ***14 FCC Rcd 6088
    (Enf. Div. Wireless Bur. 1999).

[^2]: ? 47 U.S.C. § 208.

[^3]: ? 47 U.S.C. § 202(a). See *Order,* 14 FCC Rcd at 6090-6093.

[^4]: ? 47 U.S.C. § 314. See *Order,* 14 FCC Rcd at 6097-6101.

[^5]: ? *Order,* 14 FCC Rcd at 6094-6097, 6104-6105.

[^6]: ? *Order,* 14 FCC Rcd at 6101-6105.

[^7]: ? *Interconnection and Resale Obligations Pertaining to Commercial
    Mobile Radio Service, Second Report and Order and Third Notice of
    Proposed Rulemaking,* 11 FCC Rcd. 9462 (1996).

[^8]: ? Petition, p. 2. Although, as Radiofone states, the text of the
    *Second Report* was not released until after the close of the
    pleading cycle in this proceeding, a public notice of the
    Commission's action was released prior to the close of briefing, and
    the public notice was referred to by the parties in their briefs.
    (BMI's Opposition To Petition For Reconsideration, p. 4). The
    *Second Report* is also referenced in the *Order*. See 14 FCC Rcd at
    6095, fn. 41.

[^9]: ? 47 U.S.C. § 20.12(c).

[^10]: ? *Second Report,* 11 FCC Rcd at 9464.

[^11]: ? *Id., at 9469.*

[^12]: ? Petition, p. 3. The argument, that roaming is not a common
    carrier service, was only made in passing by BMI. The entire
    argument is contained in just one footnote in its brief. (BMI's
    Brief, p. 19, fn. 15.). This argument was not expressly addressed in
    the *Order.*

[^13]: ? *Id.*

[^14]: ? *Order,* 14 FCC Rcd at 6094-6097.

[^15]: ? Omnibus Budget Reconciliation Act of 1993, Pub. L. 103-66, 107
    Stat. 312, effective August 10, 1993.

[^16]: ? Section 332(c)(3) of the Act, 47 U.S.C. § 332(c), in pertinent
    part provides:

    > Notwithstanding section 2(b) and 221(b), no State or local
    > government shall have any authority to regulate the entry of or
    > the rates charged by any commercial mobile service or private
    > mobile service, except that this paragraph shall not prohibit a
    > State from regulating the other terms and conditions of commercial
    > mobile service.

[^17]: ? *Order*, 14 FCC Rcd at 6096.

[^18]: ? *Id.*

[^19]: ? 47 U.S.C. §§ 154(I), 154(j), and 405.

[^20]: ? 47 C.F.R. §§ 0.321 and 1.106.