[Federal Register: April 30, 2004 (Volume 69, Number 84)]
[Notices]
[Page 23756-23757]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ap04-61]
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FEDERAL COMMUNICATIONS COMMISSION
[CCB/CPD File No. 98-30; DA 04-943]
Parties Asked To Update Record Regarding Petition for Declaratory
Ruling on Interexchange Carrier ``Rounding-Up'' Practices
AGENCY: Federal Communications Commission.
ACTION: Notice; solicitation of comments.
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SUMMARY: In this document, the Commission invites interested parties to
update the record pertaining to the petition for declaratory ruling
filed by Connie L. Smith (Petitioner) on March 30, 1998. Because the
district court has dismissed the underlying litigation, it appears that
there no longer is any need for the Commission to respond to the
primary jurisdiction referral. The Commission's Wireline Competition
Bureau requests, therefore, that interested parties now file a
supplemental notice indicating if there are issues that they still wish
to be considered. To the extent parties do not indicate an intent to
pursue the issues delineated in the petition for declaratory ruling,
the Commission will deem the petition withdrawn and will dismiss it.
DATES: Comments are due on or before June 1, 2004, and reply comments
are due on or before June 14, 2004.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554. See SUPPLEMENTARY INFORMATION for filing
instructions.
FOR FURTHER INFORMATION CONTACT: David Hu, Attorney-Advisor, Wireline
Competition Bureau, Pricing Policy Division, (202) 418-1520 or via the
Internet at david.hu@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Public
Notice, CCB/CPD File No. 98-30, released on April 2, 2004. This is a
non-docketed proceeding. Therefore, interested parties must file
pleadings by paper because electronic filing on the Commission's
Electronic Comment Filing System (ECFS) is not available in non-
docketed proceedings. When filing comments and reply comments, parties
should reference CCB/CPD File No. 98-30, and conform to the filing
procedures contained in the Notice. Parties must file an original and
four copies of each filing. Filings can be sent by hand or messenger
delivery, by commercial overnight courier, or by first-class or
overnight U.S. Postal Service mail (although we continue to experience
delays in receiving U.S. Postal Service mail). The Commission's
contractor, Natek, Inc., will receive hand-delivered or messenger-
delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be
held together with rubber bands or fasteners. Any envelopes must be
disposed of before entering the building. Commercial overnight mail
(other than U.S. Postal Service Express Mail and Priority Mail) must be
sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal
Service first-class mail, Express Mail, and Priority Mail should be
addressed to 445 12th Street, SW., Washington, DC 20554. All filings
must be addressed to Marlene H. Dortch, Office of the Secretary,
Federal Communications Commission, 445 12th Street, SW., Suite TW-A325,
Washington, DC 20554. Two (2) copies of the comments and reply comments
should also be sent to Steve Morris, Deputy Division Chief, Pricing
Policy Division, Wireline Competition Bureau, Federal Communications
Commission, 445 12th Street, SW., Room 5-A121, Washington, DC 20554.
Parties shall also serve one copy with Qualex International, Portals
II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, (202)
863-2893, or via e-mail to qualexint@aol.com. The original petition for
declaratory ruling filed in CCB/CPD File No. 98-30 is available for
public inspection and copying during business hours at the FCC
Reference Information Center, Portals II, 445 12th Street, SW., Room
CY-A257, Washington, DC 20554. The document may also be purchased from
Qualex International, telephone (202) 863-2893, facsimile (202) 863-
2898.
Synopsis
1. The Petitioner asked for a declaratory ruling that Sprint
Communications Company, L.P. (Sprint) violated the Communications Act
by failing to expressly disclose its alleged ``rounding-up'' practices
in its tariff filed with this Commission and/or that Sprint has
otherwise failed to adequately disclose its billing practices. The
petition stems from a federal district court class action brought by
Petitioner against Sprint on June 5, 1996 in the United States District
Court for the Northern District of California. Petitioner's complaint
in the court proceeding accused Sprint of rounding-up the length of
telephone calls to the next full minute, thus billing its customers for
an entire minute even when only a fraction of a minute is actually
used, without disclosing this practice in its marketing materials,
advertisements, phone bills or general business correspondence. The
Petitioner asserted that the alleged practice constitutes a cause of
action under common law and California law.
2. In its September 13, 1996 decision, the district court dismissed
all of the claims presented by the Petitioner except for the claims for
injunctive relief under the Consumers Legal Remedies Act and California
Civil Code with respect to interstate long-distance service.
Specifically, the Petitioner claimed that Sprint engaged in false
advertising and unlawful business practices under state law by filing a
tariff with the Commission for its interstate residential long-distance
service without expressly disclosing that it rounds up to the next full
minute. The court found that the Communications Act requires disclosure
of carrier billing practices in filed tariffs but was unable to
determine whether Sprint's tariff adequately disclosed its billing
practices. The court concluded that whether Sprint should have
expressly stated in its tariff that it rounds up is a question the
Commission would need to address in light of its regulations under the
Communications Act. Therefore, relying on the doctrine of primary
jurisdiction, the court stayed a decision on Petitioner's claims with
respect to interstate residential long-distance service pending
referral of the disclosure issue to the Commission. Petitioner
subsequently filed the petition for declaratory ruling with the
[[Page 23757]]
Commission on March 30, 1998 and on May 18, 1998, the Bureau issued a
public notice seeking comment on the petition.
3. In a decision issued on December 27, 1999, the district court
dismissed Petitioner's case in its entirety for lack of subject matter
jurisdiction. The court found that Petitioner's claims arose under
state law, not federal law, and that the case should have been brought
in state court. Based on this finding, the court stated that there was
no longer any point in staying the case.
4. Because the court has dismissed the underlying litigation, it
appears that there no longer is any need for the Commission to respond
to the primary jurisdiction referral. Similarly, the question raised by
the petition for declaratory ruling, i.e., what constitutes proper
disclosure under section 203 of the Communications Act, may have become
moot or irrelevant. Because the Petitioner does not appear to have
pursued the matter further before the Commission since the court
dismissed the litigation, it is not clear if there are any outstanding
issues for the Commission to address.
5. For these reasons, the Bureau requests that interested parties
now file a supplemental notice indicating those issues that they still
wish to be considered. In addition, parties may refresh the record with
any new information or arguments that they believe to be relevant to
deciding such issues. To the extent parties do not indicate an intent
to pursue the issues delineated in the petition for declaratory ruling,
the Commission will deem the petition withdrawn and will dismiss it.
Federal Communications Commission.
Steve Morris,
Deputy Division Chief, Pricing Policy Division, Wireline Competition
Bureau.
[FR Doc. 04-9883 Filed 4-29-04; 8:45 am]
BILLING CODE 6712-01-P