[Federal Register Volume 69, Number 84 (Friday, April 30, 2004)]
[Notices]
[Pages 23756-23757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9883]


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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the Commission will deem the petition withdrawn and will dismiss it.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 [email protected].

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 [email protected]. 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