$//500.200 I.D., 47 USC 208 Complaint, CC Doc. 94-89//$
$/ 500.2290, 47 USC 705, Unauthorized Interception/$
$/ 500.2125, Misrepresentation and Lack of Candor/$
$/ 500.2295, Burdens of Proceeding and Proof/$
                                Before the
                     FEDERAL COMMUNICATIONS COMMISSION
                          Washington, D.C.  20554
                                                              FCC 95D-01
                            CC Docket No. 94-89
In the Matter of
Elehue Kawika Freemon and
Lucille K. Freemon,
Complainants,
v.                                                                      FILE NO. E-90-393
American Telephone and Telegraph Company
Defendant
                                APPEARANCES
  Elehue K. Freemon Pro Se; Peter H. Jacoby and Clifford K. Williams on
behalf of AT&T; and Keith Nichols on behalf of the Federal Communication
Commission's Common Carrier Bureau.
               INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE
                             WALTER C. MILLER
         Issued: February 17, 1995 ;  Released: February 24, 1995
  1.    On August 16, 1990, Elehue Kawika Freemon and ostensibly his
mother, Lucille K. Freemon, filed a formal complaint against AT&T.
They asked:
        ". . .for a formal investigations (sic) by the Federal
        Communications Commission (FCC) to redress and to
        assist in remedies for the act of divulgence and
        interception/electronic eavesdropping, alteration of
        [Lucille Freemon's] monthly telephone bill/toll and
        false/arbitrary accusations by an AT&T long-distance
        operator and AT&T under AT&T company directives
        causing great harm and injury to complainants on May
        30, 1988. . ."
  2.    Based on allegations contained in the formal complaint, the
Freemons posited the following damage claims:
        "For the loss of his Business and retirement funds
        the sum of one point two million dollars ($1.2 million
        dollars) is requested.
        "for the extreme trauma caused a sum of two million
        dollars ($2.0 million dollars) is requested."
  3.    AT&T answered the Freemons' complaint on September 24, 1990.  They
contended that AT&T and their operator (Nancy Zolnikov) hadn't violated any
statute or other law; that Mrs. Zolnikov did not monitor complainants'
telephone conversation of May 30, 1988; and that complainants have not shown
that AT&T caused them any injury.
  4.    The Freemons replied to AT&T's answer on October 18, 1990.
There they argued in part as follows:
        ". . .
        In the foregoing reply the foreword (c) will assist
        the commission (sic) in guiding through the varies
        (sic) AT&T Answers (AT&T Ans.) due to the numberous
        (sic) violations of 47 CFR 1.724(b), (c) and
        controdictions (sic) in which complaintants (sic) have
        substain (sic) stronger allegations against AT&T.
        "It, (C), will consolidate. . .other statues (sic)
        which intern (sic) complaintants (sic) have suffered.
        References to the U.S., Constittution (sic). . ."
  5.    Four years after the official complaint was filed, the Commission
designated the matter for hearing.  See FCC 94-192 released August 14, 1994.
They set down the following six issues:
        (1)   To determine the facts and circumstances surrounding AT&T's
              handling of Elehue Freemon's operator-assisted telephone
              call to his mother, Lucille Freemon, on May 30, 1988.
        (2)   To determine whether a telephone conversation ensued between
              Elehue Freemon and Lucille Freemon on May 30, 1988, at the
              time an AT&T operator handled the operator-assisted call at
              issue.
        (3)   To determine whether, AT&T, through its operator or
              otherwise, intercepted and disclosed the contents or meaning
              of any telephone conversation that may have taken place
              between Elehue Freemon on May 30, 1988, within the meaning
              of Section 705 of the Communications Act.
        (4)   To determine, in light of the evidence adduced under issues
              1 through 3 above, whether AT&T's actions in handling Elehue
              Freemon's May 30, 1988 operator-assisted call violated
              Section 705 of the Communications Act.
        (5)   To determine, in view of the evidence adduced on the
              foregoing issues, whether and if so, in what amounts, AT&T
              should be required to pay monetary damages to complaints.
        (6)   To determine, in view of the evidence adduced on the
              foregoing issues, whether complainants are entitled to an
              award of prejudgment interest on any damages recovered in
              this proceeding.
  6.    The Commission placed both the burden of proceeding and the burden
of proof on all six issues on Elehue Kawika Freemon and Lucille K. Freemon,
complainants.  See FCC 94-192 supra. at para.12.
  7.    The Commission further indicated ". . .that the designated parties
may avail themselves of an opportunity to be heard by filing with the
Commission a Notice of Appearance in accordance with Section 1.221 of the
Rules, 47 CFR  1.221, within twenty (20) days of the mailing of this Order."
See FCC 94-192 supra. at para.13.
  8.    AT&T and Elehue K. Freemon filed timely Notices of Appearance on
September 1, 1994.  Complainant Lucille K. Freemon purportedly filed a Notice
of Appearance the same day.  That Notice will be discussed under "Threshold
Rulings" infra.  The Common Carrier Bureau filed a "Limited Notice of
Appearance."  There they indicated that they would not actively participate in
this case, but would limit their efforts to monitoring the case.
  9.    We held the Prehearing Conference on November 10, 1994, the
Evidentiary Admission Session on November 28, 1994, and the Hearing on
December 12, 1994.  The evidentiary record was closed December 12, 1994.  See
Tr.411 and FCC 94M-644 released December 15, 1994.
  10.   Elehue K. Freemon and AT&T filed their Proposed Findings of Fact
and Conclusions of Law on January 30, 1995.  AT&T also filed a Memorandum in
support of Proposed Conclusions of Law.  AT&T by letter dated February 8,
1995, indicated that they did not intend to file Reply Findings and
Conclusions.  But see FCC 95M-46 released February 10, 1995.  Elehue Freemon
filed Reply findings on February 15, 1995.  The Common Carrier Bureau filed
nothing.  See Finding 8 supra.
                             Threshold Rulings
  11.   The case will turn on two pivotal rulings infra.  The basic
documentation on which the proceeding is based; i.e., the August 16, 1990,
formal complaint (See Finding 1 supra.) has been falsely filed.  Elehue
Freemon, the filer, has attempted to hoodwink the Commission into issuing a
damage award under false pretenses.  Since the basic complaint is counterfeit,
it cannot and should not be given serious consideration.  So it will be
dismissed.
                      Lucille K. Freemon's Complaint
  12.   First, those portions of the August 16, 1990 complaint that can be
attributed to Lucille Freemon will be dismissed.  This record shows that she
did not bring and has never intended to bring a complaint against AT&T.  Back
in 1988 she was aware that her son, Elehue K. Freemon had a dispute with
several different entities (including AT&T)that stemmed from an incident
that occurred on the evening of May 30, 1988.  But she believed that his
dispute with AT&T had ended long ago.  See Judges Ex.1, pp.33, 35, 54-55, 65-
66, and 74.
  13.   She never entered an appearance in this case.  Rather her son
Elehue forged her signature on a Notice of Appearance and filed it with the
Commission (See Tr.5-6; FCC 94M-529 released September 16, 1994; and Judges
Ex.3, p.281).
  14.   When that forgery was exposed, Elehue Freemon then tried to file a
power of attorney with the Commission that would permit him to represent his
mother in this case.  That also failed.  FCC 94M-584, released October 21,
1994.
  15.   AT&T then took Lucille Freemon's deposition in Long Beach,
California on October 4, 1994.  There she indicated that she wasn't and never
had been a party to her son's dispute against AT&T.  In fact, her version of
what happened on the night of May 30, 1988, more nearly coincides with AT&T's
(Nancy Zolnikov's) version, and differs substantially from what her son Elehue
K. Freemon claims happened.  Compare Judges Ex.1, pp.67-75 with AT&T Exhibit
8, paras.26-31 and attached verification.
  16.   Since Lucille Freemon is not now and never has been a party to
this case, any allegations attributable to her or any damage claims traceable
to her will be dismissed.
                        Elehue Freemon's Complaint
  17.   Secondly, those portions of the August 16, 1990 formal complaint
that can be attributed to Elehue Freemon will also be dismissed.  Elehue
Freemon has filed a sham suit against AT&T.  From the very outset he has
held out his mother as a co-complainant, knowing all along she was not
involved in the least.
  18. Elehue Freemon obviously believed that his chances of receiving a
favorable cash damage award from the FCC would be enhanced if a Black female
were one of the complainants.  He also wanted to obtain all the tactical and
procedural advantages that would accrue from having his mother join in the
suit.  So he deliberately and dishonestly included her in his complaint that
he filed with the Commission.
  19.   Moreover, during the four years the formal complaint was being
processed Elehue Freemon never admitted, never even hinted that his mother was
not really a co-complainant or that she didn't even know her son had a damage
claim against AT&T.  In fact, he continued to represent to the authorities
(the Common Carrier Bureau) that his mother had been damaged by the acts of
the AT&T operator, Nancy Zolnikov, on the evening of May 30, 1988.
  20.   Later Elehue  Freemon realized that using his mother as a front
was not going to produce the lucrative dollar amounts he had asked for (See
para.2 supra.).  So, on May 12, 1991, Freemon sent AT&T a threatening
letter.  See Judges Ex.2, sub-exhibit 1; Tr.209, 215, and 217-218.  That
letter reads in part:
        ". . .
              Due to the problems this has caused to my family and your
        eagerness to continue this case I've decided to go public with
        this issue!
        . . .
              As the 'Roney (sic) King' Civil Rights case in California
        has brought out the publics (sic) opinion must be included since
        it will affect all Americans.
              The PUBLIC NEEDS TO KNOW, what ever (sic) the outcome may
        be, what kind of company AT&T is really about. . . .
              Trust AT&T?"
  21.   Elehue Freemon followed through on his threat.  On May 16, 1991,
Elehue and Lucille Freemon filed for "Discovery Through the Use of Public
Opinion."  See AT&T Ex.10, and Tr.135-138.  The Commission ultimately denied
that motion.  See FCC 94-192, released August 12, 1994 at para.15.
  22.   After it was discovered that Elehue Freemon had forged his
mother's signature on her purported Notice of Appearance (Finding 13 supra.),
he realized that his mother wasn't going to give him the tactical and
procedural leverage he thought she would.  And when AT&T announced that it was
going to depose Lucille Freemon (Finding 15 supra.), Elehue Freemon recognized
that his mother would end up being a litigation liability, not an asset.  It
was then he brought up the idea that his mother had Alzheimer's disease (Tr.6-
7), and that therefore her testimony couldn't be trusted.  Mr. Freemon's
belated effort to impeach his mother and fellow co-complainant was rejected
(Tr.314-341).
  23.   Since both Lucille K. Freemon's and Elehue Kawika Freemon's basic
allegations are subject to dismissal (Findings 12-22 supra.), the sham suit
(File No. E-90-393) they have brought against AT&T will be dismissed.
              The Burdens of Proceeding and Burdens of Proof
  24.   Assuming that the complaint was not a sham, it would still have to
be denied.  As previously noted (Finding 6 supra.), the Commission placed both
the burden of proceeding and the burden of proof on all six issues on the
Freemons.  Not only have they failed to meet their burdens, they have not
seriously tried to meet those burdens.
  25.   During the predesignation phase of this case; i.e., between August
16, 1990 and August 12, 1994, Elehue Freemon filed at least 20 pleadings with
the Commission.  Yet when he was called upon to meet his burdens, he only
introduced four documents: (1) Freemon Exhibit 1: the official August 16, 1990
formal complaint; (2) Freemon Exhibit 2: "Complainants Motion to Accept
Paragraph 21(b) and supporting discussions and paragraph 24 correction to
'Late Pleading Reply'"; (3) Freemon Exhibit 3: "Complainants Motion to
Accept Evidence supporting complainants telephone conversation on May 30, 1991
at 22:30:00"; and Freemon Ex.4: Medical patient records of Elehue K. Freemon
for the period 5-31-88 through 6-3-88.
  26.   Moreover, the Trial Judge was forced to reject three of those four
exhibits; i.e., Freemon Exs.2, 3, and 4.  See Tr.91, 106, and 112.  So Elehue
Freemon fell woefully short of meeting any of his burdens on the six issues he
faced.  So even if the Freemons' complaint couldn't be dismissed (but see
Findings 12-23 supra.), it would have to be summarily denied.
                       Findings of Fact: Issues 1-4
  27.   Based on the foregoing (Findings 1-26 supra.), no substantive
findings of fact are needed.  But AT&T has taken the position that this matter
should be decided on the merits; i.e., that a merits judgment is the best way
of disposing of this lengthy litigation (Tr.14-19).
  28.   Given the six year length of the predesignation phase (both formal
and informal) and the cost and labor associated with that phase, one can
engender sympathy for the telephone company's position.  After six years of
jousting something probably should be said about the merits of the proceeding.
So assuming the case had to be tried on the substantive merits, the following
facts on Issues 1-4 would be appropriate.
  29.   On May 30, 1988 at about 10:30 p.m. Elehue Freemon tried to place
a long distance collect call from his home in Gresham, Oregon, to his mother
in Long Beach, California.  Before he tried to place that call, Mr. Freemon
had consumed at least three glasses of wine and an indeterminate number of
sleeping pills.  See Judge's Exhibit 1, pp.4-125, 174-175, 183, 189, 194 and
197.
  30.   Elehue Freemon was connected to an AT&T long distance operator,
Nancy Zolnikov.  When he was so connected and began speaking to her, he was
breathing heavily, and his speech was confused and disoriented.  See AT&T Ex.7
(Complaint, p.2); AT&T Exhibit 8, p.7; Judges Ex.1, pp.179, 202; and Judges
Ex.3, p.23.
  31.   Initially Mr. Freemon couldn't state what service or assistance he
needed from Ms. Zolnikov, stating only that he wanted to talk to "Mom."  Ms.
Zolnikov then asked Mr. Freemon for the telephone number that he wished to
call; he gave her the 7-digit number 427-2438, but he couldn't give her the
area code.  Ms. Zolnikov than asked Freemon where his mother lived, thereby
allowing her to determine that the call should be routed to Long Beach,
California.  See Judge's Ex.1, pp.191-192; and AT&T Ex.8, p.7.
  32.   Ms. Zolnikov then connected the call to complainant Lucille
Freemon, and announced that Mr. Freemon was trying to place a collect call.
Mr. Freemon never heard Ms. Zolnikov say anything after Ms. Zolnikov announced
the call.  When Zolnikov indicated to Lucille Freemon that Mr. Freemon
appeared to need medical help, Mrs. Freemon gave Ms. Zolnikov Mr. Freemon's
full name and expressly authorized Ms. Zolnikov to seek assistance for her
son.  See Judge's Ex.1, pp.199-200, 210; Ex.2, pp.71-73; Ex.3, p.23; AT&T
Ex.7, p.2, and Ex.8, pp.7-8.
  33.   Mrs. Freemon then dropped off, and Ms. Zolnikov routed the phone
call to the Oregon Emergency Services (OES) in Portland, Oregon.  She told
them Mr. Freemon needed assistance.  After they received the call, OES
personnel independently determined to send police to Mr. Freemon's residence.
See Judge's Ex.3, p.24, 41.
  34.   Intermediate Findings.  Nancy Zolnikov did not violate 47 USC 705
on the night of May 30, 1988.  She acted properly.  When she forwarded the
call to the OES, she was acting at the direction of, and with the permission
of, Mrs. Lucille Freemon.  Mrs. Lucille Freemon confirmed that fact at her
October 4, 1994 deposition.  See Judges Ex.1, pp.72-73.  Operator Zelnikov did
not surreptitiously monitor any telephone conversation between Elehue Freemon
and his mother.  She forwarded the call to the emergency agency as a necessary
incident to the rendition of AT&T's service.  There was no interception; there
was no improper divulgence.
  35.   Designated issue 2 asks whether a telephone conversation ensued
between Elehue Freemon and Lucille Freemon on May 30, 1988, at the time an
AT&T operator handled the operator-assisted call.  The answer is that there
was no such conversation during the operator assisted call described in
paras.29-33 supra.
  36.   This does not mean there were no telephone conversations between
Elehue Freemon and Lucille Freemon on May 30, 1988.  The evidentiary record
shows that Elehue Freemon made at least two (2) other operator-assisted
collect calls to his mother on May 30, 1988.  He made his first collect call
at 8:37 a.m., and the second at 6:40 p.m.  Moreover, between May 23, 1988 and
June 21, 1988, Elehue Freemon made at least 19 operator-assisted collect calls
to his mother.  See Tr.194-209, 225, and 275-282; also see Freemon Ex.3,
rejected.
  37.   So even if we were to assume that Elehue Freemon were honest
(which he isn't), and if we were to assume that he has tried to present an
accurate version of a 10:30 p.m. May 30, 1988 telephone call between he and
his mother (which he hasn't), there is still the distinct possibility that he
has been describing the wrong telephone call.
        38.   Remember too, that on May 30, 1988, Elehue Freemon was drinking
wine and taking sleeping pills.  See Tr.202, and AT&T Ex.8 at subexhibit B
(Police Report).  So if it came to accepting Elehue Freemon's version of the
10:30 p.m. telephone call or accepting Nancy Zolnikov's version as
corroborated by Lucille Freemon, the choice is clear.  Elehue Freemon was
simply not in the physical or mental condition to retain and later recall
accurate first-hand testimony.
  39.   One further observation is worthwhile.  When Nancy Zolnikov first
received the 10:30 p.m. operator-assisted call from Elehue Freemon on the
night of May 30, 1988, she came to believe that a medical emergency existed:
Elehue Freemon didn't know his mother's area code, he was incoherent, and he
was having trouble breathing.  See Findings 29-33 supra.
  40.   Now it isn't necessary to a decision in this case that Mrs.
Zolnikov's judgment be accurate.  As long as she honestly believed that a
medical emergency existed and as long as she acted in good faith, forwarding
the call to the Oregon Emergency Agency was neither illegal nor improper.  But
the hard cold fact of life is that Mrs. Zolnikov's judgment was accurate.  A
medical emergency did exist.  Elehue Freemon was contemplating suicide, and he
did indeed need help.  So when Nancy Zolnikov, with Lucille Freemon's
permission, forwarded the call to the Gresham emergency medical authorities,
she was not only doing the right thing, she was doing the best thing.
                      Findings of Facts: Issues 5 -6
  41.   Since AT&T has not violated 47 USC 705, they are not required to
pay any monetary damages to the complainants.  And even assuming that a 705
violation had occurred, AT&T would not be required to pay any damages to
complainants.  Complainants have failed to meet their burden of proceeding and
burden of proof under Issue 5.  Indeed they have not even attempted to
seriously address those burdens.  See Findings 24-26 supra.
  42.   Similarly, under designated issue 6, and since complainants are
not entitled to damages (See Finding 41 supra.), they are not entitled to any
prejudgment interest.
                            Conclusions of Law
  1.    This is the unpleasant saga of a dishonest son attempting to use
his mother to extort a large damage claim from a telephone company with deep
pockets.  The formal complaint (File No. E-90-393) that Elehue Kawika Freemon
and his mother, Lucille Freemon filed on August 16, 1990 against AT&T Corp.
will be dismissed.  That complaint is a fake and a sham.
  2.    Lucille K. Freemon has never intended to bring an action against
AT&T.  She is not now and never has been a complainant in this case.  For the
four years that the Common Carrier Bureau was processing the complaint (August
16, 1990 to August 12, 1994), she had no idea that her son was processing a
$3.2 million damage claim in her name.
  3.    When the formal complaint was set for hearing, the parties were
required to file written notices of appearance.  Elehue Freemon forged his
mother's signature on a Notice of Appearance, and filed it with the
Commission.
  4.    When that forgery was exposed, Elehue Freemon then tried to file a
power of attorney that would permit him to represent his mother in this case.
That ruse also failed.  See FCC 94M-584 released October 21, 1994.
  5.    When AT&T announced that they would depose Lucille Freemon on
October 4, 1994, Elehue Freemon realized that the truth was about to come out;
i.e., that his mother had nothing to do with the suit.  So he tried to head
off her deposition by introducing the idea that Lucille Freemon was suffering
from Alzheimer's disease and that therefore any testimony she would give
couldn't be credited.  This ploy also failed.
  6.    At her October 4, 1994 deposition Lucille Freemon clearly
indicated that she was not and never had been a party to her son's deception.
She disowned her February 9, 1989 affidavit that Elehue Freemon had attached
to the August 16, 1990 formal complaint.  In describing that affidavit, she
said: "What's written on here is not the truth." (See Tr.70-72).
  7.    Moreover, her version of what happened on the night of May 30,
1988 at 10:30 p.m. more nearly coincides with AT&T's (Nancy Zolnikov's)
version and differs substantially from what her son, Elehue Freemon, says
happened.
  8.    Even at the December 12, 1994 hearing, Elehue Freemon
unsuccessfully continued to try to impeach the co-complainant he had relied on
for four years, his own mother.
                            Ultimate Conclusion
  9.    Elehue Freemon has tried to induce the Commission to act favorably
on a $3.2 million damage claim against AT&T via a falsely captioned and
falsely written complaint.  From the outset and over a period of four years he
has conducted himself dishonestly and deceitfully.  Neither his complaint nor
his subsequent verbal and written meanderings warrant any further
consideration.
  So unless an appeal is taken from this Initial Decision or the
Commission reviews it on their own motion, Elehue Kawika Freemon's and Lucille
K. Freemon's formal complaint (File No. E-90-393) IS DISMISSED; and this
proceeding IS TERMINATED.
                                            FEDERAL COMMUNICATIONS COMMISSION
                                                  Walter C. Miller
                                              Administrative Law Judge
                                                #2 para 10 choice
        10.   Elehue K. Freemon and AT&T filed their Proposed Findings of Fact
and Conclusions of Law on January 30, 1995.  AT&T also filed a Memorandum in
support of Proposed Conclusions of Law.  AT&T by letter dated February 8,
1995, indicated that they did not intend to file Reply Findings and
Conclusions.  But see FCC 95M-46 released February 10, 1995.  Elehue Freemon
filed Reply findings on February 15, 1995.  The Common Carrier Bureau filed
nothing.  See Finding 8 supra.
        10.   Elehue K. Freemon and AT&T filed their Proposed Findings of Fact
and Conclusions of Law on January 30, 1995.  AT&T also filed a Memorandum in
support of Proposed Conclusions of Law.  Reply Findings (if any) were due on
February 15, 1995.  By letter dated February 8, 1995, AT&T indicated that they
did not intend to file Reply Findings and Conclusions.  But see FCC 95M-46
released February 10, 1995.  Elehue Freemon filed no Reply findings, and did
not indicate that he was waiving such a filing.  The Common Carrier Bureau
filed nothing.  See Finding 8 supra.