Federal Communications Commission



Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of )

)

DAVID S. POOLE and MICHIGAN )

MULTIMEDIA & TELECOMMUNICATIONS, )

INC. )

Complainants )

)

v. ) File No. WB/ENF-F-96-017

)

MICHIANA METRONET, INC. and )

LUCAS J. CARUSO )

Defendants )

MEMORANDUM OPINION AND ORDER

Adopted: September 30, 1999 Released: October 4, 1999

By the Deputy Chief, Wireless Telecommunications Bureau:

I. INTRODUCTION

1. In this Memorandum Opinion and Order, the Deputy Chief, Wireless Telecommunications Bureau, pursuant to delegated authority, rules on the above-captioned formal complaint, jointly filed on February 29, 1996, by David S. Poole (hereinafter, "Poole") and Michigan Multimedia & Telecommunications, Inc. (hereinafter, "Michigan Multimedia") against Michiana Metronet, Inc. (hereinafter "Michiana") and Lucas J. Caruso (hereinafter "Caruso").[1] Complainants allege that Michiana, a cellular carrier, and Caruso, an employee of Michiana, violated Sections 201(b)[2] and 202(a)[3] of the Communications Act of 1934, as amended, by refusing to provide service in accordance with Michiana's "Major Account Plan” to a group of otherwise unaffiliated users which the complainants had organized to take advantage of the quantity discounts offered by Michiana under this rate plan to multi-phone customers. For the reasons discussed below, we dismiss the complaint with respect to Caruso and we deny the complaint with respect to Michiana.

II. BACKGROUND

2. Poole is the president and owner of Michigan Multimedia,[4] a corporation engaged in the business of selling telecommunications services and products in Kalamazoo, Michigan.[5] Michiana is a Commission licensee that provides cellular radiophone services in the Battle Creek and Kalamazoo, Michigan Metropolitan Statistical Areas.[6] Lucas J. Caruso, at the time of the events alleged in the formal complaint, was employed as the general manager of Michiana's Kalamazoo office.[7] Pursuant to a contract entered into between Michigan Multimedia and Michiana on July 14, 1992, Michigan Multimedia acted as a sales agent or dealer in Kalamazoo for Michiana's cellular services.[8]

3. Michiana offers a discount rate plan to businesses and other entities with requirements for multiple cellular phones.[9] This rate plan has been variously called by the parties herein, "Corporate Account Plan" and "Major Account Plan."[10] Michiana's stated criteria for the plan are: (1) the customer must have three or more phones in one account; (2) each phone of the customer is at least under a one year contract; (3) each phone of the customer is on a current rate plan; (4) and, although individual users, such as the individual agents in a real estate firm, may agree to share in the payment of charges, the service must be paid for by the customer with one check to Michiana and, if the total bill is not paid in

full, the service to all users may be suspended.[11] Under the plan, Michiana's regular, single-phone user rates for both monthly service and local air time are discounted as follows:[12]

# Phones Discount

3 - 4 5%

5 - 9 8%

10 - 24 15%

25+ 21%

4. In early 1993, Poole organized the Multimedia Group as an unincorporated association consisting of himself and other persons desiring cellular services. The members of the group had no affiliation with each other beyond that of being existing or prospective single-phone customers of Michiana solicited by Michigan Multimedia. It appears that the sole purpose for the formation of the Multimedia Group was to enable Poole and the other group members to obtain the lower rates offered by Michiana under its "Major Account Plan."[13] In February 1993, Michigan Multimedia placed an order on behalf of Multimedia Group for service under the "Major Account Plan." The order was initially accepted by Michiana, and members of the Multimedia Group thereafter began receiving service.[14]

5. Several months later, however, in July 1993, Michiana's general manager, Caruso, informed Poole that the Multimedia Group did not qualify for service under the "Major Account Plan."[15] According to Michiana, the "Multimedia Group was not qualified to receive a discount under Michiana's corporate account plan because it was neither a company nor a single account."[16] As a consequence, Michiana terminated service under the Major Account Plan to the Multimedia Group in August 1993.[17] At the same time, Michiana also terminated its agency agreement with Michigan Multimedia,[18] claiming that Michigan Multimedia had breached its agency agreement with Michiana by misrepresenting to customers the requirements for Michiana's "Major Account Plan."[19]

6. In July 1995, Poole filed an informal complaint with the Commission (File No. WB/ENF-I-97-0537). Therein, Poole alleged that Michiana had violated Section 203 of the Act[20] by offering its "Major Account Plan" without a filed tariff with the Commission and by refusing to provide the service to the Multimedia Group. In response, defendants argued that the complaint was "both legally and factually without support."[21] After reviewing the informal complaint and the response thereto, the Commission's staff concluded that there was an insufficient basis to warrant further investigation, and the informal complaint proceeding was closed. Poole was notified of this disposition on September 7, 1995.[22]

7. On February 29, 1996, Poole filed the instant formal complaint, accompanied by a request for a waiver of the applicable filing fee.[23] Because of the waiver request, the formal complaint was not immediately served on the defendants. The request for waiver was subsequently denied by the Associate Managing Director on August 20, 1996,[24] and, on October 15, 1996, Poole submitted the applicable filing fee.[25] Service of the complaint on the defendants was further delayed because the complaint failed to specify the correct addresses for the defendants. Service was completed on December 11, 1996, and defendants interposed an answer on February 7, 1997. A status conference was held on April 20, 1998. In addition, a number of further pleadings and other submissions have been filed by the parties, which are described in paragraphs 9 and 10, below.

III. DISCUSSION

A. Procedural Issues

8. Poole, who is not an attorney, has represented himself and Michigan Multimedia (of which he is president) in this proceeding. Because Poole is prosecuting the formal complaint pro se, we have afforded all of the parties considerable flexibility with respect to the procedural rules governing formal complaint proceedings.[26]

9. In this regard, on May 6, 1997, complainants filed a "Motion for Summary Decision" with a supporting brief and affidavit. Defendants filed an opposition thereto on May 21, 1997. Although the submission of a motion for summary decision is not specifically contemplated in the Commission's procedural rules governing formal complaints,[27] we will accept this pleading and defendants' opposition thereto as in the nature of "other written submissions" permitted by Section 1.732 of the Commission's Rules.[28] On March 10, 1997, pursuant to Section 1.729 of the Commission's Rules,[29] defendants served interrogatories on complainants. Complainants did not submit their responses or objections thereto in a timely manner, and on April 18, 1997 defendants filed a "Motion to Dismiss for Failure to Prosecute, or in the Alternative, to Compel a Response to Interrogatories." Complainants also did not file a timely response to this motion. At the April 20, 1998 status conference the Bureau staff effectively granted defendant's alternative request by directing complainants to respond to defendants' interrogatories and motion. Complainants did so on April 23, 1998. Given complainants' compliance with the staff directive, defendants' motion for summary dismissal of the complaint is denied.

10. We have also determined that it would be in the public interest to accept the additional pleadings and submissions of the parities.[30] Although some of these pleadings are not necessarily contemplated by the Commission's rules, we will accept them because they serve to provide a full record upon which to base a decision. Moreover, the acceptance of these pleadings will not result in unfairness to any party because each party has been afforded an opportunity to respond to the factual assertions and legal arguments of the other parties.

11. In their answer, defendants urge, among other things, that the formal complaint be dismissed as to Caruso. In support, defendants assert that Caruso is neither a Commission licensee nor a common carrier.[31] Defendants also maintain that Caruso was, at all relevant times, merely an employee of Michiana acting on Michiana's behalf in all his dealings with Poole and Michigan Multimedia.[32] We agree that the Commission's formal complaint processes do not provide a forum for actions against Caruso. Under Section 208 of the Act,[33] the Commission has jurisdiction over formal complaints "of anything done or omitted to be done by any common carrier subject to this Act . . . ."[34] Mr. Caruso is, as defendants assert, not a common carrier against whom a formal complaint may be entertained. Accordingly, we dismiss the above-captioned complaint insofar as it is directed against Caruso as a defendant.

B. Substantive Issues

1. Section 201(b)

12. Section 201(b) of the Act provides, in part, that:

All charges, practices, classifications, and regulations for and in connection with such communication service [i.e., interstate or foreign communication by wire or radio], shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is hereby declared to be unlawful . . . . [35]

13. Poole alleges, in support of his contention that defendants violated Section 201(b) of

the Act,[36] that "Michiana utterly fails to demonstrate any economic or legal justification to offer one class of persons lower rates for cellular service than others."[37] Poole's contention is not supported by the record. Michiana has provided a rationale for its discount rate classification for users with requirements for multiple phones. Michiana states that lower rates for users with multiple phones are justified because the provision of service to users with multiple-phone customers requires fewer administrative expenses than that required for the provision of service to an equivalent number of individual-phone customers or "even a group of the same number of individuals."[38] For example, Michiana states that it is required to perform only one credit check for a prospective corporate customer with multiple phones, while multiple credit checks are required for an equivalent number of single-phone customers.[39] Michiana states further that in the case of corporate accounts, the customer is assigned and pays for a block of sequential numbers and is responsible for the assignment and reassignment of numbers among its employee users. By contrast, in the case of individual single-phone customers, Michiana must assign, add, and delete numbers.[40]

14. Michiana’s refusal to permit Michigan Multimedia to resell or share the "Major Account Plan” would constitute a violation of Section 201(b) of the Act if Michiana did not have a reasonable basis for such refusal.[41] We conclude, however, for the reasons set forth in paragraphs 25-26 hereinbelow, that it was reasonable for Michiana to prohibit complainants from reselling or sharing service pursuant to the "Major Account Plan," given complainants’ obligations as sales agents of Michiana.

2. Section 202(a)

15. Complainants also fail to demonstrate that Michiana has violated Section 202(a) of the Act. Section 202(a) of the Act provides:

It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communications services, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any unreasonable prejudice or disadvantage.[42]

16. The Commission has stated that "volume discounts are not per se a violation of Section 202."[43] In addition, the Commission has granted carriers considerable flexibility in structuring volume discount offerings, particularly in situations, such as is the case for the CMRS industry,[44] where sufficiently competitive conditions exist such that unlawful discrimination will not likely result.[45]

17. Michiana contends that it was justified in refusing to provide service under the "Major Account Plan" to the Multimedia Group because the Multimedia Group did not qualify for the service.[46] Michiana asserts that it has never offered its "Major Account Plan" to any group of customers which, like the Multimedia Group, consists of otherwise unrelated single-phone users.[47] Michiana maintains that the "Multimedia Group was established by Mr. Poole solely as a means through which he could act as an unauthorized reseller of cellular telephone service to individuals who had separately signed up to purchase service from Michiana."[48]

18. The users taking service through Poole as the Multimedia Group did not meet the qualifications as customers for "Major Account Plan," which had been established by Michiana for the service classification. The "Major Account Plan" was made available by Michiana only to customers with requirements for multiple phones. The Multimedia Group users, on the other hand, were single-phone users. They had no relationship to each other, except than that they each had ordered single-phone service from Poole. Poole has not refuted Michiana's assertion that it has never provided service under its "Major Account Plan" to any other group of otherwise unrelated single-phone users.[49]

19. Complainants, however, argue that this distinction is not a valid basis to deny service to Multimedia Group.[50] They state that "even if [Multimedia Group's] business is only saving cellular telephone expenses for its members . . . " the refusal to offer "Major Account Plan" rate discounts to it "is not justified by Michiana's statements."[51] The issue presented by the complaint, accordingly, is not, as Michiana argues, whether it treated Multimedia Group differently from other groups of unrelated single-phone users. The issue before us is whether Michiana engaged in "unjust or unreasonable discrimination," in violation of Section 202(a) of the Communications Act, by denying the "Major Account Plan" to the Multimedia Group because it is a group of unrelated single-phone users which was organized by its sales agent to consolidate their requirements to obtain on a sharing or resale basis the multi-phone discounts offered by Michiana to multi-phone users. We will address this issue utilizing the three-step inquiry prescribed by Court of Appeals in MCI Telecommunications Corp. v Federal Communications Commission[52] and subsequent cases: "(1) whether the services are 'like'; (2) if they are, whether there is a price difference between them; and (3) if there is, whether that difference is reasonable."[53]

20. Whether the services are "like". As the Court of Appeals has stated, "Likeness . . . depends upon 'functional equivalence' . . . [and a] . . . likeness inquiry 'focuses on whether the services in question are different in any material functional aspect.'"[54] In this regard, the service provided to Michiana Group participants appears to have been functionally equivalent to Michiana's "Major Account Plan" service which it provided to corporate customers and affiliated groups, such as real estate agents. Like its provision of "Major Account Plan's service to other customers, in providing service to Multimedia Group, Michiana dealt with only one person, i.e. Poole, who was responsible for the payment of bills and for communicating with the other users receiving service through the Multimedia Group service.[55] Accordingly in providing service to the Multimedia Group, Michiana would appear to have obtained similar cost benefits to those which it attributes to the provision of the "Major Account Plan:” that is, in providing service to Multimedia Group, Michiana was required to conduct only one credit check, rather than multiple credit checks; Michiana sent only one bill, rather than multiple bills;[56] Michiana received and processed payment from one customer, rather than multiple customers;[57] and Michiana provided a block of numbers to one customer who was responsible for assignment to individual users, rather than assigning individual numbers to multiple users.[58] The Commission, moreover, has previously held that the fact that one service is provided directly to end users and the other service is shared or resold does not make those services "unlike" within the meaning of Section 202(a).[59]

21. Whether there is a price difference between the services. There is no dispute that Michiana provides service under the "Major Account Plan" at rates which are substantially lower than its standard rates to single-phone users. As set forth in paragraph 3 above, Michiana offers "Major Account Plan" users discounts from its single-phone rates ranging from 5% to 25%, depending upon the number of phones in service.

22. Whether the discrimination is justified. Section 202(a) of the Act prohibits only "discrimination in charges, practices, classifications, regulations, facilities, or services" that is "unjust or unreasonable." The Commission has held that restrictions on resale and sharing "are discriminatory, and thereby unlawful if it is determined that the discrimination is unjust and unreasonable under Section 202(a) of the Act."[60] The Commission recognized, however, that restrictions on sharing and resale may be justified as "just or reasonable" by general market conditions or by specific circumstances of service.[61] The Commission has applied these principals, based on the requirements of Sections 201(b) and 202(a) of the Communications Act, specifically with respect to mobile radio services in adopting its CMRS resale policy, which is now incorporated in Section 20.12 of the Commission's Rules[62] The Commission's CMRS resale policy requires that "no provider may offer like communications services to resellers at less favorable prices, terms, or conditions than are available to other similarly situated customers, absent reasonable justification," and that "no provider may directly or indirectly restrict resale in a manner that is unreasonable . . . ."[63]

23. Michiana presents two justifications for its refusal to provide the "Major Account Plan" to the Multimedia Group. First, it argues that it was not required to permit anyone to resell its "Major Account Plan" because it has met its resale obligations under Section 20.12 of the Commission’s Rules by offering a service especially designed for resellers, and it is therefore not required to permit the resale or sharing of the "Major Account Plan."[64] Second, it asserts that it was justified in refusing to permit Poole/Multimedia to resell[65] its services in light of their conflicting contractual obligations to Michiana as a sales agent or dealer of Michiana's services.[66]

24. We disagree that Michiana may generally prohibit the resale or sharing of the "Major Account Plan.” The Commission's Rules and Section 202(a) prohibit all "unreasonable" restrictions on resale. That Michiana offers a service classification that may be more attractive than the "Major Account Plan" for most large resellers, does not permit it, without good cause, to refuse to allow others, who wish to do so, to resell service under the "Major Account Plan."[67]

25. We find, on the other hand, that it was reasonable under the circumstances for Michiana to refuse to allow complainants to resell or share its service, in light of their status as its sales agent. Agents under common law owe a duty of loyalty to their principals, including a duty not to compete with their principals concerning the subject matter of the agency.[68] "The Commission's resale policy is not intended to preclude CMRS providers from distributing their services through exclusive agents, which have voluntarily agreed to sell their principals' services exclusively and not to compete with their principals."[69] The Commission's resale policy does not require CMRS providers to permit resale of their service by their agents or former agents in violation of the agent's contractual obligations to them.[70]

26. In this case the complainants without Michiana's permission solicited existing and potential single-phone customers of Michiana to take service through Multimedia Group at lower rates than those that would be applicable if they took service directly from Michiana. It was reasonable, we find, for Michiana to act to prevent its exclusive sales agent from engaging in these activities, which it believed would result in a loss of revenues to it and were contrary to its interests. Michiana interprets its contract with Michigan Multimedia as prohibiting Michigan Multimedia from reselling its services.[71] The Commission does not have jurisdiction to resolve private contract disputes,[72] and we do not decide whether, as Michiana claims, Poole and Michigan Multimedia breached their agency contract with Michiana by forming Multimedia Group as a means to resell or share service under the “Major Account Plan” at discounted rates. We do find that Michiana acted reasonably in refusing to allow Michigan Multimedia and Poole to resell or share its service. Accordingly, we find that Michiana did not violate Section 202(a) of Communications Act.

IV. CONCLUSIONS

27. We conclude, as set forth in paragraph 11 above, that Caruso is not a communications common carrier, which is subject to Section 208[73] of the Communications Act. Consequently, the formal complaint will be dismissed with prejudice insofar as it is directed against Caruso.

28. We further conclude, as set forth in paragraphs 12 through 14 above, that the complainants have failed to show that Michiana's "charges, practices, classifications, [or] regulations for and in connection its "Major Account Plan" or "Corporate Account Plan" are or were "unjust or unreasonable" in violation of Section 201(b) of the Communications Act.[74]

29. We further conclude, as set forth in paragraphs 15 through 26 above, that complainants have not shown that Michiana, by refusing to continue to provide "Corporate Account" or "Major Account Plan" to participants in the Multimedia Group, have made or are making "any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communications services, directly or indirectly, by any means or device," or that Michiana made or gave "any undue or unreasonable preference to any particular person, class of persons, or locality," or that Michiana subjected "any particular person, class of persons, or locality to any unreasonable prejudice or disadvantage," in violation of Section 202(a) of the Communications Act.[75]

30. We therefore conclude that the complaint should be denied with respect to Michiana and that this proceeding should be terminated.

V. ORDERING CLAUSES

31.. Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 4(j) and 208 of the Communications Act of 1934, as amended,[76] and Section 0.321 of the Commissions Rules,[77] that the formal complaint of David S. Poole and Michigan Multimedia & Telecommunications, Inc. with respect to co-defendant, Lucas J. Caruso, IS DISMISSED WITH PREJUDICE.

32. IT IS FURTHER ORDERED, pursuant to Sections 4(i), 4(j) and 208 of the Communications Act of 1934, as amended,[78] and Section 0.321 of the Commissions Rules,[79] that the formal complaint with respect to co-defendant, Michiana Metronet, Inc., IS DENIED.

33. IT IS FURTHER ORDER that this proceeding IS TERMINATED.

FEDERAL COMMUNICATIONS COMMISSION

Kathleen O’Brien Ham

Deputy Chief, Wireless Telecommunications Bureau

-----------------------

[1] The formal complaint has been filed in accordance with the provisions of Section 1.718 of the Commission's Rules, 47 C.F.R. § 1.718. It is based on the same allegations as were set forth in an informal complaint by Poole, WB/ENF-I-95-0537, which was closed on September 7, 1995. On February 29, 1996, Poole filed the instant formal complaint with the Commission's Managing Director without a filing fee and accompanied by a request for waiver of the fee requirement. After their request for waiver was denied by the Associate Managing Director on August 6, 1996, complainants submitted the applicable fee on October 15, 1996 with a completed FCC Form 159.

[2] 47 U.S.C. § 201(b).

[3] 47 U.S.C. § 202(a).

[4] Complaint, ¶ 2

[5] Complainants' Answers to Defendants' Interrogatories, ¶¶ 5 and 6.

[6] Answer, ¶ 5.

[7] Complaint, ¶ 8; Answer, ¶ 8.

[8] Complaint, ¶ 10; Answer, ¶ 10; and Michiana and Caruso's Reply to Poole's April 27, 1998 letter and May 8, 1998 Response Regarding Corporate Account Plan, Exhibit 1.

[9] Complaint, ¶¶ 11-12.

[10] Michiana and Caruso's Reply to Poole's April 27, 1998 letter and May 8, 1998 Response Regarding Corporate Account Plan, p. 3.

[11] Defendants' "Statement Regarding Corporate Account Plan," Exhibit 3, pp. 1-2.

[12] Id, p. 2.

[13] Complainants' Response To Michiana Metronet Inc.'s Letter Dated May 15, 1998, pp. 4-5.

[14] Complaint, ¶¶ 11 and 13.

[15] Complaint, ¶ 15 and Answer, ¶ 15.

[16] Defendants' "Statement Regarding Corporate Account Plan," p. 3.

[17] Michiana and Caruso's Reply To Poole's April 27 Letter and May 8, 1998 Response Regarding Corporate Account Plan, Exhibit 6.

[18] Complaint, ¶ 17; and Answer, ¶ 17.

[19] Attachment to Complainant Opposition To Defendants' Motion To Dismiss and Complainant's Amended Motion For Summary Decision.

[20] 47 U.S.C. § 203.

[21] Letter of August 31, 1995 from Century Communications Corp., Michiana Metronet, Inc. and Lucas J. Caruso, in response to informal complaint, WB/ENF-I-97-0537.

[22] Letter from Chief, Enforcement Division to Poole, dated September 7, 1995.

[23] Letter from Poole to the Managing Director, dated February 29, 1996.

[24] Letter from Associate Managing Director to Poole, dated August 20, 1996.

[25] Defendants, herein, have not asserted the provisions of Section 415 of the Act, "Limitations As To Actions," as an affirmative defense. In view of this and, in light of our determination that the formal complaint should be dismissed or denied on other grounds, it is not necessary to rule on whether the formal complaint under the circumstances should be considered to have been "filed within 6 months from the date of the carrier's report," and therefore "be deemed to relate back to the filing date of the informal complaint" within the meaning of Section 1.721 of the Commission's Rules.

[26] The Commission's rules governing formal complaint proceedings were substantially revised, effective March 18, 1998. Implementation of the Telecommunications Act of 1996, Amendment of Rules Governing Procedures to be Followed When Formal Complaints Are Filed Against Common Carriers, 12 FCC Rcd 22497 (1997), 63 F.R. 990 (1998). The previously effective rules are applicable in the case of this formal complaint, which was filed prior to that date. All references to formal complaint rules are to the rules as they were in effect prior to March 18, 1998.

[27] Sections 1.720 through 1.735 of the Commission's Rules, 47 C.F.R. §§ 1.720 - 1.735. Complainants argue, at paragraph II of their "Opposition To Defendants' Motion To Dismiss and Amended Motion For Summary Decision," that their motion for summary decision is permitted by Section 1.251(a)(1) of the Rules, 47 C.F.R. § 1.251(a)(1). However, that section is applicable only to hearing proceedings.

[28] 47 C.F.R. § 1.732.

[29] 47 C.F.R. § 1.729.

[30] The following pleadings are accepted as part of the record herein: defendants' "Statement Regarding Corporate Account Plan," filed on April 24, 1998 in response to the Commission's staff's directive in the April 20, 1998 status conference; defendant's letter to the Commission staff, dated April 22, 1998 objecting to the alleged failure to comply with the Commission's Rules; complainants' letter to the Commission's staff, dated April 27, 1998 in response thereto; complainant's "Response To Michiana Metronet, Inc. and Lucas J. Caruso's Statement Regarding 'Corporate' Account Plan, filed on May 8, 1098; defendants' "Reply to David S. Poole's April 27, 1998 Letter and May 8, 1998 Response Regarding Corporate Account Plan;" filed on May 15, 1998; complainants' "Response to Michiana Metronet Inc.'s Letter Dated May 15, 1998," filed on June 1, 1998; defendants' "Reply To Complainants' June 1, 1998 Response," filed on June 8, 1998; complainants' "Response to Defendants' June 8th, 1998 Reply," filed on June 22, 1998 and defendants' "Motion To Close The Record And Notice That Case Is Ripe For Decision," filed on July 1, 1998.

[31] Answer, p. 4.

[32] Answer, ¶ 8.

[33] 47 U.S.C. § 208.

[34] Section 208(a) of the Communications Act, 47 U.S.C. § 208. See International Settlement Rates, 12 FCC Rcd 19806, 19894, n. 332 (1997); Western States Telephone Co. v. American Telephone and Telegraph Co., 66 FCC 2d 370 (1977).

[35] 47 U.S.C. § 201(b).

[36] 47 U.S.C. § 201.

[37] Complainants' "Response To Michiana Metronet, Inc. and Lucas J. Caruso's Statement Regarding 'Corporate' Account Plan," p. 4.

[38] Michiana’s and Caruso's Reply to Poole's April 27, 1998 letter and May 8, 1998 Response Regarding Corporate Account Plan, p. 3.

[39] Id.

[40] Id., pp. 3-4.

[41] See Regulatory Policies Concerning Resale and Shared Use of Common Carrier Services and Facilities, 60 FCC 2d 261, 282-283 (1976).

[42] 47 U.S.C. § 202(a).

[43] Inquiry Into the Existence of Discrimination in the Provision of Superstation and Network Station Programming, 5 FCC Rcd 523, 528 (1989).

[44] The Commission has found that the cellular market, even prior to the entry of additional PCS provider competitors, was “more competitive than many telecommunications markets have traditionally been.” Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Service, First Report, 10 FCC Rcd 8844, 8866 (1995).

[45] AT&T Corp., MCI Telecommunications, Petitions for Waiver of International Settlements Policy, Order on Review, 13 FCC Rcd 23924 (1998).

[46] Defendant's "Response to David S. Poole’s April 27, 1998 Letter and May 8, 1998 Response Regarding Corporate Account Plan," pp. 3 - 4.

[47] Michiana has also affirmatively denied "that any group similar to Multimedia Group is charged a lower rate than Multimedia Group." Michiana Metronet, Inc. and Lucas J. Caruso's Statement Regarding Corporate Rate Plan, pp. 4-5.

[48] Id., p. 4; see also footnote 65, infra.

[49] Id.

[50] Complainants' Response To Michiana Metronet Inc.'s Letter Dated May 15, 1998, pp. 4-7.

[51] Id., pp. 4-5.

[52] 842 F.2d 1296, 1803 (DC Cir. 1988) ; Also see MCI Telecommunications Corp v Federal Communications Commission, 917 F.2d 30, 39 (DC Cir 1990) and Competitive Telecommunications Association v. Federal Communications Commission et al., 998 F.2d 1058, 1061 (DC Cir. 1993).

[53] Competitive Telecommunications Association, supra at 1061.

[54] Id.

[55] Defendants' "Statement Regarding Corporate Account Plan," Exhibit 1.

[56] Defendants' "Statement Regarding Corporate Account Plan," Exhibit 1.

[57] Id.

[58] Id.

[59] Regulatory Policies Concerning Resale and Shard Use of Common Carrier Services and Facilities, supra., 60 FCC 2d at 281.

[60] Id., 60 FCC 2d at 263.

[61] Id.; see also Petitions for Rule Making Concerning Proposed Changes to the Commission's Cellular Resale Policies, 7 FCC Rcd 4006, 4008-4009 (1992); and Interconnection and Resale Obligations Pertaining to Commercial Mobile Radio Services, First Report and Order, 11 FCC Rcd 18455, 18463 (1996).

[62] 47 C.F.R. § 20.12. This section provides in part that, "Each carrier subject to this section must permit unrestricted resale of its services."

[63] Interconnection and Resale Obligations Pertaining to Commercial Mobile Radio Service, First Report and Order, supra., 11 FCC Rcd at 18462-18463.

[64] Michiana Metronet, Inc. and Lucas J. Caruso's Reply To David S. Poole's April 27, 1998 Letter and May 8, 1998 Response Regarding Corporate Account Plan, p. 5.

[65] The parties dispute whether the service to Multimedia Group was a "resale" or a "sharing" of "Major Account Plan" service. In this regard, Michiana maintains that the service was resold by complainants because the service was ordered by Poole from Michiana for the entire group; each month a single invoice for service to all members was sent to Poole who was responsible for its payment; the members of Multimedia Group ordered service from Poole; they paid a deposit for the service to Poole; Poole billed the group members individually for services provided to them; Poole collected the amounts owing from each; and the members were charged for the service at rates set by Poole, and which resulted in profit for Poole. (Michiana Metronet, Inc. and Lucas J. Caruso's Reply to David S. Poole's April 27, 1998 Letter and May 8, 1998 Response Regarding Corporate Account Plan, pp. 3-4). Complainants, on the other hand, deny that they made a profit and characterize the service as being provided to Multimedia Group for the benefit of the participants rather than as a vehicle for resale. (Michigan Multimedia & Telecommunications, Inc. and David S. Poole's Response to Michiana Metronet, Inc. and Lucas J. Caruso's Statement Regarding "Corporate" Account Plan, pp 2-3) We need not determine whether the service to Multimedia Group should most appropriately be characterized as a resale by Poole/Multimedia to the Multimedia Group participants or a sharing by the Multimedia Group participants of "Major Account Plan" service, which was initiated and organized by the complainants. In either case, we find, as set forth in paragraphs 25-26, infra., that this activity was inconsistent with the responsibilities normally expected by a carrier from its sales agent and that it was reasonable for Michiana to refuse to allow it.

[66] Defendants' "Statement Regarding Corporate Account Plan," p. 1; Defendants' "Reply to David S. Poole's April 27, 1898 Letter and May 8, 1998 Response Regarding Corporate Account Plan," pp. 4-5.

[67] Interconnection and Resale Obligations Pertaining to Commercial Mobile Radio Service, First Report and Order, supra., 11 FCC Rcd at 18462-18463.

[68] Restatement (Second) of Agency § 393.

[69] Metro Communications, Inc. v. Ameritech Mobile Communications, Inc, et al., 12 FCC Rcd. 13083, 13092 (Enforcement Div. WTB 1996).

[70] Id.

[71] The agreement between Michiana and Michigan Multimedia requires the agent, Michigan Multimedia, "to refer all potential Subscribers only to the Company [that is, Michiana] and not to offer or sell or influence an potential Subscriber to purchase a competitive service." Michigan Multimedia was further prohibited "during the Term and for two years following the termination of this Agreement:" (a) from acquiring an interest in or assuming any capacity "in any other business engaged in offering or selling Cellular Telephones or Cellular Telephone Service "(Agreement, Part IX, A, pp. 6 -7) (b) from providing "customer, prospective customer, or other sales leads to any Competitive Service;" or (c) "from altering or attempting to alter any third party's relationship with . . . . [Michiana]." (Agreement between Michiana and Michigan Multimedia, dated July 14, 1992.

[72] See In re Pueblo MSA Limited Partnership, et. al., 13 FCC Rcd 131 (1997); In re Communications Satellite Corp., 7 FCC Rcd 4587 (1992); and Detroit Cellular Telephone Co., 2 FCC Rcd 4420 (1987).

[73] 47 U.S.C. § 208.

[74] 47 U.S.C. § 201(b).

[75] 47 U.S.C. § 202(a).

[76] 47 U.S.C. §§ 154(i), 154(j), & 208.

[77] 47 C.F.R. § 0.321.

[78] 47 U.S.C. §§ 154(i), 154(j), & 208.

[79] 47 C.F.R. § 0.321.

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