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PUBLIC NOTICE

Federal Communications Commission

News Media Information 202 / 418-0500

445 12th St., S.W.

Internet: http://www.fcc.gov

Washington, D.C. 20554

TTY: 1-888-835-5322

DA 10-264
February 19, 2010

WIRELESS TELECOMMUNICATIONS BUREAU SEEKS COMMENT ON

PETITION FOR DECLARATORY RULING REGARDING INTERPRETATION OF

SECTION 332(c)(3)(A) OF THE COMMUNICATIONS ACT OF 1934, AS AMENDED,

AS APPLIED TO FEES CHARGED FOR LATE PAYMENTS

WTB Docket No. 10-42

Comments Due: April 7, 2010
Reply Comments Due: May 7, 2010

On January 14, 2010, five California consumers (Petitioners) filed a Petition for
Expedited Declaratory Ruling asking the Federal Communications Commission (Commission) to
interpret Section 332(c)(3)(A) of the Communications Act of 1934, as amended,1 in response to a
referral from the Federal District Court in which Petitioners had filed class action litigation.2
Specifically, Petitioners ask the Commission to find that penalty fees imposed on consumers by
commercial mobile radio service providers for late payment of their bills are not “rates” under
Section 332(c)(3)(A). In addition to this referral, the courts have stayed proceedings in two
similar class actions pending the Commission’s resolution of this question.3
Section 332(c)(3)(A) provides that no state or local government shall have authority to
regulate the entry of or the rates charged by any commercial mobile service, but it does not
prohibit a state from regulating the other terms and conditions of commercial mobile services.
Petitioners argue that the late payment fees charged by AT&T Mobility, LLC, Cellco
Partnership, d/b/a/ Verizon Wireless (Verizon Wireless), Sprint Solutions, and T-Mobile USA
(T-Mobile) are “other terms and conditions” of service, and therefore may be regulated under


1 47 U.S.C. § 332(c)(3)(A).
2 Barahona v. T-Mobile USA, Inc., Case No. C08-1631RSM, Order on Motion to Dismiss or Stay This
Action (W.D. Wash., May 15, 2009).
3 Gellis v. Verizon Communications, Inc., Case No. C 07-3679 JSW (N.D. Cal.); Thomas v. Sprint Nextel
Corp., Case No. CV 08-4119 THE (N.D. Cal.).

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state consumer protection laws. In their pleadings in the pending court cases, Verizon Wireless
and T-Mobile have argued that these fees are rates under Section 332(c)(3)(A) and therefore
cannot be regulated by the states.
The Wireless Telecommunications Bureau seeks comment on the Petition.

Procedural Matters

Interested parties may file comments on or before

April 7, 2010

, and reply comments on
or before

May 7, 2010

. All filings should refer to Docket

No. 10-42

. Comments may be filed
using (1) the Commission’s Electronic Comment Filing System (ECFS), (2) the Federal
Government’s eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of
Documents in Rulemaking Proceedings, 63 Fed. Reg. 24121 (1998).
§
Electronic Filers: Comments may be filed electronically using the Internet by accessing
the ECFS: http://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal:
http://www.regulations.gov.
§
Paper Filers: Parties who choose to file by paper 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. All filings must be
addressed to the Commission’s Secretary, Office of the Secretary, Federal
Communications Commission.
§
Effective December 28, 2009, all hand-delivered or messenger-delivered paper
filings for the Commission’s Secretary must be delivered to FCC Headquarters at
445 12th St., SW, Room TW-A325, Washington, DC 20554. All hand deliveries
must be held together with rubber bands or fasteners. Any envelopes must be
disposed of before entering the building. The filing hours are 8:00 a.m. to 7:00
p.m.
§
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, Express, and Priority mail must be addressed to
445 12th Street, SW, Washington DC 20554.
§
People with Disabilities: To request materials in accessible formats for people
with disabilities (braille, large print, electronic files, audio format), send an e-mail
to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-
418-0530 (Voice), 202-418-0432 (TTY).
All filings must be addressed to the Commission’s Secretary, Marlene H. Dortch, Office of the
Secretary, Federal Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554. Documents in

Docket No. 10-42,

including a copy of the petition, are available for
public inspection and copying during business hours at the FCC Reference Information Center,
Portals II, 445 12th Street, S.W., Room CY-A257, Washington, D.C. 20554. The documents
may also be purchased from BCPI, telephone (202) 488-5300, facsimile (202) 488-5563, TTY
(202) 488-5562, e-mail fcc@bcpiweb.com.

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This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the
Commission’s ex parte rules. See 47 C.F.R. §§ 1.1200, 1.1206. Persons making oral ex parte
presentations are reminded that memoranda summarizing the presentations must contain
summaries of the substance of the presentations and not merely a listing of the subjects
discussed. More than a one- or two-sentence description of the views and arguments presented
generally is required. See 47 C.F.R. § 1.1206(b). Other rules pertaining to oral and written ex
parte presentations in permit-but-disclose proceedings are set forth in section 1.1206(b) of the
Commission's rules, 47 C.F.R. § 1.1206(b).
For further information about this Public Notice, please contact Suzan Friedman at 202-
418-1310 or Suzan.Friedman@fcc.gov.

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