Federal Communications Commission FCC 97-369

Before the Federal Communications Commission Washington, D.C. 20554

In the Matter of

Bell Atlantic Mobile Systems, Inc. and File Nos. 00762-CL-AL-1-95 NYNEX Mobile Communications Company through 00803-CL-AL-1-95; 00804- CL-TC-1-95 through 00816-CL-TC- 1-95; 00817-CL-AL-1-95 through 00824-CL-AL-1-95; and 00825-CL- TC-1-95 through 00843-CL-TC-1-95

MEMORANDUM OPINION AND ORDER

Adopted: October 8, 1997 Released: October 9, 1997

By the Commission:

TABLE OF CONTENTS

Paragraph No.

I. INTRODUCTION 1

H. CELLCO©S OWNERSHIP OF A-SIDE AND B-SIDE MARKETS AND THE POSSIBILITIES OF ANTICOMPETITIVE CONDUCT CONCERNING ROAMING ...... 4 m. OMISSION OF CERTAIN ORDERING CLAUSES IN THE ORDER ...... 17

IV. REGIONAL OR NATIONAL GEOGRAPHIC MARKET ...... 20

V. BELL ATLANTIC©S ALLEGEDLY ANTICOMPETITIVE ACTS ...... 23

VL CONCLUSION ...... 29

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. ORDERING CLAUSE ...... 30

I. INTRODUCTION

1. The Commission has before it an Application for Review ("Application") filed on June 19, 1995, by Comcast Cellular Communications, Inc. ("Comcast") seeking review of an Order1 by the Bureau (the "Bureau"), granting the applications of NYNEX Mobile Communications Company ("NYNEX Mobile") and Bell Atlantic Mobile Systems, Inc. ("BAMS") to transfer control of eighty-two cellular radio licenses to Cellco Partnership ("Cellco").2 Cellco is a partnership consisting of subsidiaries of both NYNEX Coiporation ("NYNEX") and Bell Atlantic Corporation ("Bell Atlantic"). Comcast©s Application requests that the Commission set aside the Bureau©s grant of BAMS and NYNEX Mobile©s transfer of control of their cellular licenses to Cellco or, in the alternative, condition the grant on "firm rules of behavior" to prevent discrimination against Cellco©s competitors.3 An Opposition to Application for Review ("Opposition") was filed by Cellco; and a Reply to Opposition ("Reply") was filed by Comcast.4

2. The Bureau©s Order found that the transfers of control and assignments of cellular radio licenses from affiliates of Bell Atlantic and NYNEX to Cellco (collectively, "the transfer") would have no anticompetitive effects and would have a significant pro-competitive impact.5 Therefore, the Order found, the transfer met the public interest standard of Section 310(d) of the Communications Act of 1934, as amended ("the Act").6

3. Comcast does not challenge the Bureau©s finding that the transfer will have pro-competitive effects. Instead, its Application focuses on two technical errors in the Order and reiterates its argument that the Order underestimated the anticompetitive effects of the transfer concerning roaming. Comcast also repeats allegations of past anticompetitive conduct by Bell Atlantic and possible future

1 Bell Atlantic Mobile Systems, Inc. and NYNEX Mobile Communications Co., Order, 10 FCC Red 13368 1995 ("Order"), and Order, 10 FCC Red 13262 (Wireless Tel. Bur. 1995).

2 Cellco has become either the licensee of the cellular system or has acquired control of the licensee of the cellular system.

3 Application at ii.

4 Cellco©s Opposition to Application for Review was filed on July 5, 1995. Comcast©s Reply to Opposition was filed on July 19, 1995.

5 Order, 10 FCC Red at 13384, ffl 44-46.

6 47 U.S.C. § 310(d) ("No construction permit, or station license, or any rights thereunder, shall be transferred, assigned . . . directly or indirectly ... to any person except upon application to the Commission and upon finding by the Commission that the public interest, convenience, and necessity will be served thereby.")

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anticompetitive conduct by Cellco. For the reasons discussed below, we deny the Application.7

II. CELLCO©S OWNERSHIP OF A-SIDE AND B-SIDE MARKETS AND THE POSSIBILITIES OF ANTICOMPETITIVE CONDUCT CONCERNING ROAMING

4. Contentions of the Parties. Comcast©s first argument is that the Bureau©s Order erroneously states that BAMS and NYNEX Mobile©s divestiture plan contemplated that the post-transfer entity, Cellco, would have no A-side and B-side licenses in adjacent markets.8 Comcast alleges that this error has substantive significance for the Order©s competitive analysis because it led the Bureau to discount the anticompetitive threat posed by Cellco having licenses in adjacent markets on both "sides" of the cellular market. Comcast states that Cellco, whose licenses are mainly on the B-side, now has a direct incentive to discriminate against non-affiliated A-side reamers and otherwise to interfere with the "development of technological interfaces that could benefit the competitors of Cellco©s B-side market."9 Comcast maintains Cellco has an incentive to provide favorable rates and terms to its more extensive B-side markets, to the detriment of A-side competitors, and to disrupt non- affiliated A-side roaming.10 Comcast also claims that the pendency of a rulemaking involving roaming shows that the Commission recognized the possibilities of anticompetitive conduct concerning roaming.11 Comcast argues that the Bureau had sufficient evidence in the record to conclude that BAMS and NYNEX Mobile©s transfer of control of their cellular licenses is inconsistent with the Commission©s cellular roaming rules and that it was arbitrary and capricious for the Bureau to

7 We also dismiss the June 6, 1995 letter from Charlene Marsh and Viola Surgick, two customers of an affiliate of NYNEX Mobile, the , complaining that the latter company terminated their conventional, "wireline" telephone service. The concerns of Mss. Marsh and Surgick are not material to the transfer that created Cellco, which is the only matter under review in this proceeding.

8 The spectrum allocated for Cellular Service is divided into two "blocks" or "sides" of 25 MHz each, which are sometimes referred to as the A-side and the B-side. See 47 CFR § 22.905. Originally, "wireline common carriers" (47 CFR § 22.99) were only granted licenses for the B-side. Later, however, we permitted wireline common carriers to acquire A-side licenses in areas where they did not hold the B-side license. See Implementation of Section 6002(B) of the Omnibus Budget Reconciliation Act of 1993, Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services, First Report, 10 FCC Red 8844, 8848-49 & n.20,1 14 (1995) ("First CMRS Competition Report").

9 Application at 5.

10 Roaming is a practice by which a cellular customer may use his or her cellular telephone in a market other than his or her "home" market. First CMRS Competition Report, 10 FCC Red at 8850 & n.27,1 17.

11 Id. at 4.

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disregard Comcast©s concerns. Comcast states it had met the standard under Section 30912 and raised a substantial material question of fact by proving that there is the potential for discrimination and leveraging with respect to roaming and the A-side markets that Cellco will retain.13

5. In its Opposition, Cellco states that its retention of A-side and B-side cellular properties in different markets does not create any new anticompetitive risk.14 Cellco observes that Bell Atlantic has held a mixture of A-side and B-side systems for years and that Comcast fails to mention how this arrangement has led to impaired competition.15 Cellco also states that Comcast©s allegation of potential anticompetitive effects flowing from Cellco©s ownership of A-side and B-side systems in different markets is an unpersuasive argument that has been considered and rejected by the Commission in other proceedings."5 Cellco also avers there is no nexus between the grant of the applications and Comcast©s allegation that Cellco©s ownership of both A-side and B-side systems would competitively disadvantage Comcast.17 Cellco maintains it presented evidence in its applications, including affidavits from an industry expert and an economist, concerning why the ownership of A- side and B-side systems in different markets does not raise competitive concerns. Cellco further states that competitive concerns regarding cellular carriers owning interests in both A-side and B-side properties in the same or adjacent markets should be addressed through the rulemaking process because this situation is not unique to BAMS and NYNEX Mobile.18

6. In its Reply, Comcast states that Cellco©s post-transfer A-side and B-side licenses are distinguishable from Bell Atlantic©s mixture of A-side and B-side systems because Cellco will hold A- side licenses in markets that are either directly adjacent to, or, in the same marketing or financial

n 47 U.S.C. § 309(d)(l) ("Any party in interest may file with the Commission a petition to deny any application.... The petition shall contain specific allegations of fact sufficient to show that the petitioner is a party in interest and that a grant of the application would be prima facie inconsistent with [the public interest, convenience, and necessity]). 47 U.S.C. § 309(d)(2) ("If a substantial and material question of fact is presented . . . [the Commission] shall proceed as provided in subsection (e)").

13 Application at 8-9.

14 Opposition at 9. 15 Id.

16 Id., citing Mobile Communications of America, 1 FCC Red 1260 (1986) and Metromedia Co., 1 FCC Red 1227 (1986).

17 Opposition at 8-9.

18 Application of Bell Atlantic Mobile Systems, Exh. 2 (Description of Transaction & Public Interest Statement) at 12-15, Att. D (Affidavit of Mark Lowenstein) at 2-4,10-13; Reply Comments of Bell Atlantic Corp. & NYNEX Corp., Exhibit B (Affidavit of Robert Harris) at 6-10; Reply Comments of Bell Atlantic Corp. & NYNEX Corp. ("Reply Comments"), dated Jan. 9, 1995, at 11-15.

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corridor as their B-side licenses.19 Comcast also alleges that although it has raised additional roaming issues in the nilemaking proceeding, raising the issues in the rulemaking context does not "moot" the roaming issues already raised regarding the Cellco transfer.20 Comcast points out that the cases Cellco cites are inapposite because both cases involved petitions opposing applications for transfer of cellular licenses on the basis of the Commission©s "wireline fence" policy.21 Comcast also asks that the Commission conduct a detailed investigation of Cellco©s business plans and ascertain whether structural separation and other protections are necessary.22 Comcast argues that, in an attempt to lead customers away from Cellco©s competitors, BAMS and NYNEX Mobile have recently mounted major marketing campaigns to announce deep roaming rate cuts throughout the Cellco region.23

7. Discussion. We note at the outset that Comcast©s pleading before the Bureau was titled "Comments" rather than "Petition to Deny" and, for the most part, requested further investigation rather than denial of the applications by BAMS and NYNEX Mobile. Accordingly, its citation of Section 309 is inapposite. We also note that Comcast©s Application does not purport to comply with the requirements of Section 1.115 of our Rules, which clearly state criteria for Applications for Review.24 Nevertheless, we shall address Comcast©s arguments on the merits.

8. In the text of the Order, the Bureau stated that upon divestiture "BAMS and NYNEX will have no interests in A-side cellular systems.1©25 This statement was in error. A review of the Order©s Ordering Clause and Appendix shows that the Bureau explicitly granted the assignment and transfer

19 Reply at 4-5.

20 Id. at 6.

21 Id. at 5-6. "Wireline fence" refers to the Commission©s original practice of licensing "wireline common carriers" only for the "B-side" of the cellular allocation. See supra note 8.

22 Id. at 7-8.

23 Id. at 8.

24 Section 1.115 of our Rules, 47 CFR 1.115 (b)(2), provides in pertinent part that: the application for review shall specify with particularity, from among the following, the factor(s) which warrant Commission consideration of the questions presented: (i) The action taken pursuant to delegated authority is in conflict with statute, regulation, case precedent, or established Commission policy, (ii) The action involves a question of law or policy which has not previously been resolved by the Commission, (iii) The action involves application of a precedent or policy which should be overturned or revised, (iv) An erroneous rinding as to an important or material question of fact, (v) Prejudicial procedural error.

25 Order, 10 FCC Red at 13376,1 23.

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applications which resulted in A-side and B-side licenses for Cellco.26

9. We do not find, as Comcast suggests, that this misstatement in the text of the Order affects the Bureau©s competitive analysis. The Bureau©s error was not material to the Older. Contrary to Comcast©s claims,27 the Bureau©s Order did not find that the retention of both A-side and B-side interests by Cellco would be anticompetitive. The existence or not of adjacent A-side and B-side interests was one factor in a pro-competitive analysis. The Order stated that if Cellco had no A-side interests, that would be "pro-competitive because it [would] avoid the hypothetical possibility alleged by Comcast of BAMS remaining an A-side carrier in a few areas"28 and that "[ajrguably, such a presence after the proposed merger would enable BAMS to disrupt cooperation among A-side carriers in oider to benefit the applicants© predominant interest on the B-side of the industry."29 That Cellco does have A-side interests does not mean that anticompetitive disruption is either certain or likely to occur. It does not establish that Cellco has any rational incentive to cause disruption or other anticompetitive effects.30 After the Order©s error is corrected, there remains no more than a hypothetical possibility that an anticompetitive effect will result from the transfer. Mere possibilities are not of decisive significance in competitive analysis. "(T]he agency©s responsibility is to deal with probabilities,© not ©ephemeral possibilities.©"31 As discussed below, we find that Comcast has failed to meet this standard.

10. Comcast argues that an A-side presence after the transfer would enable Cellco to engage in "discriminatory conduct,"32 and "discriminatory roaming practices and other similar misconduct."33 Comcast mentions the disruption of cooperation among A-side carriers in order to benefit Cellco©s predominant interest on the B-side of the industry,34 the inflation of roaming charges to A-side

26 Id., 10 FCC Red at 13386,151, 13387-89.

27 See, e.g., Reply at 3-4, 6.

28 Order, 10 FCC Red at 13376,1 23 (footnote omitted). 29 Id.

30 See infra 1 11 & n.38.

31 SBC Communications, Inc. v. FCC, 56 F.3d 1484,1494 (D.C. Cir. 1995) ("SBC"), quoting United States v. FCC, 652 F.2d 72, 99 (D.C. Cir. 1980) (en bane). See also MCI Communications Corp., Memorandum Opinion & Order, 10 FCC Red 1072, 1076,1 21 (Com. Car. Bur. 1994).

32 Application at 2-4.

33 Id. at 4.

34 Id. at 3 n.3, quoting Order, 10 FCC Red at 13376,1 23.

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carriers,35 and "discriminatfion] against non-affiliated A-side roamers and other interfer[ence] with the development of technological interfaces that could benefit the competitors of Cellco©s B-side markets,"36 as examples of such discriminatory conduct. We find these general allegations, without more, to be insufficient to show a significant risk of anticompetitive effects resulting from the transfer. Cellular films for many years have controlled both A-side and B- side licenses with our approval.37 Comcast does not allege that BAMS, NYNEX Mobile, or Cellco has engaged in any misconduct concerning roaming at any place or at any time.

11. Nor has Comcast shown how Cellco, even assuming it now has an unprecedented ability to engage in discriminatory misconduct, would have the incentive to do so. For example, Comcast appears to believe that Cellco, in order to advantage itself on the B-side of the business (where its predominant interests lie), is likely to degrade roaming service purposely in its A-side market in Fairfield County, Connecticut, which is adjacent to a market where Cellco controls the B-side system, in . There is no indication in the record that Cellco would have any incentive to do so. We conclude that our existing rules that require roaming,38 as well as the traditional pro-competitive provisions of the Communications Act,39 are sufficient to prevent any anticompetitive conduct by

35 Reply at 2.

36 Application at 5.

See, e.g., the transactions approved in Mobile Commun. Corp. of America, Memorandum Opinion & Order, 1 FCC Red 1260, 1262,1 12 (Mob. Serv. Div. 1986); Metromedia Co. Memorandum Opinion & Order, 1 FCC Red 1227, 1230-32,1 20-33 (Com. Car. Bur. 1986).

38 47 C.F.R. § 20.12(c) provides that each licensee subject to this section must provide mobile radio service upon request to all subscribers in good standing to the services of any carrier subject to this Section, including roamers, while such subscribers are located within any portion of the licensee©s licensed service area where facilities have been constructed and service to subscribers has commenced, if such subscribers are using mobile equipment that is technically compatible with the licensee©s base station. 47 CJJR. § 22.901 requires cellular system licensees to provide cellular mobile radiotelephone service upon request to all cellular subscribers in good standing, including roamers, while such subscribers are located within any portion of the authorized cellular geographic service area where facilities have been constructed and mobile service to subscribers has commenced. The Commission currently requires manual roaming and is considering whether to require automatic roaming. See Interconnection and Resale Obligations Pertaining to Commercial Mobile Radio Services, Second Report and Order and Third Notice of Proposed Rulemaking, 11 FCC Red 9462, 9470, 9473-9474, fl 13, 17-19 (1996) (Second Report and Order and Third Notice of Proposed Rulemaking).

39 See, e.g., 47 U.S.C. §§ 201 (a) ("It shall be the duty of every common carrier engaged in interstate or foreign communication by wire or radio to furnish such communication service upon reasonable request. . . "); 47 U.S.C. § 201 (b) ("All charges, practices, classifications, and regulations for and in connection with such communication service, shall be just and reasonable . . . "); 47 U.S.C. § 202 (a) ("It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services

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Cellco involving roaming.

12. The only new circumstance that appears to have resulted from the transfer is that now Cellco controls A-side and B-side systems in several immediately adjacent markets. While the ownership of A-side and B-side systems in adjacent markets appears to be unprecedented, individual companies have controlled nearby A-side and B-side systems for years without any findings of anticompetitive abuses. Comcast does not allege, much less show, that anticompetitive misconduct is more likely with adjacent A-side and B-side licenses than was possible with those simply located nearby. We also note that, hi the more than two years since the Order was released, Comcast has not brought to our attention in this proceeding any misconduct by Cellco concerning roaming either in Cellco©s adjacent A-side and B-side markets or elsewhere. Without more, we conclude that Comcast is raising only ephemeral possibilities, not probabilities, of anticompetitive misconduct.

13. Comcast is also mistaken in its claim that it is raising a question of fact concerning roaming.40 The substantial and material facts are not in dispute: Cellco now has interests in A-side and B-side licenses in nearby markets and, in several cases, in adjacent markets. The inferences and conclusions about what Cellco will now do with A-side and B-side licenses in adjacent markets are what is in dispute. In the face of all the countervailing factors we discuss in this Section, Comcast©s speculation about anticompetitive effects does not amount to a showing that the Bureau©s Order was prima facie inconsistent with the public interest.41

14. Comcast©s assertion that a Commission rulemaking concerning roaming indicates that anticompetitive abuses by Cellco are probable is misguided. Rulemakings may be convened to re-visit existing policies in light of changed circumstances. Our rulemaking concerning roaming was begun to consider expanding our pre-existing roaming requirements to account for changed circumstances since adoption of our original roaming rules.42 These changed circumstances include technological developments, the licensing of broadband PCS, and the emergence of interconnected SMR systems as possible competitors to cellular systems.43 The existence of a rulemaking does not indicate that the transfer that created Cellco is likely to lead to increased anticompetitive activity.

15. In light of Comcast©s failure to demonstrate with specificity the likely occurrence of any anticompetitive abuses concerning roaming as a result of the transfer, or even to explain the incentive that Cellco would have to engage hi such abuses, we affirm the Bureau©s finding that the rulemaking

40 See supra notes 12, 24.

41 Id.

42 Second Notice of Proposed Rulemaking, 10FCC Red 10666,1068 8-10694, fl 45-59 (1995); Second Report and Order and Third Notice of Proposed Rulemaking, 11 FCC Red 9462 (1996). Comcast participated actively in this rulemaking. See 11 FCC Red 9462, 9468, 9475-76, "M 9, 23.

43 Id.

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process is the proper forum for Comcast©s general concerns about roaming. Likewise, the complaint process under Section 208 of the Act is the proper forum to raise any future anticompetitive abuses by Cellco.44 Matters affecting the industry as a whole and misdeeds whose occurrence is based upon mere speculation are better considered in rulemakings than in specific licensing proceedings. In the latter, they may serve only to complicate and delay transactions that will benefit the public.45 Likewise, we dismiss as unnecessary and unsupported Comcast©s general requests that the Commission conduct a detailed investigation of Cellco©s business plans to ascertain whether structural separation and other protections are necessary to protect competition.46 Without a showing that specific or anticompetitive abuses will result from the transfer, no investigation is necessary.

16. Finally, Comcast argues that as a result of the Bureau©s Order Cellco has reduced its roaming rates.47 We do not agree that a reduction in roaming rates shows anticompetitive behavior. Generally, lower prices are a product of improved competition that benefits consumers. Our statutory duty is to protect efficient competition, not competitors.48

44 See Order, 10 FCC Red at 13380-83, TI 37, 41; see also, e.g., McCaw, 9 FCC Red at 5880-81 ("The Commission has adequate regulatory authority through our complaint process to address the types of concerns raised by commenters without the need for additional special rules or conditions"), 5885-86, 5907-08, H 83, 133; Contel Corp., Memorandum Opinion & Order, 6 FCC Red 1003,1005, 1 22 (1991) ("We need not address in detail AACD©s comments . . . because the merger will not affect whatever relief it may be entitled to, if any, through the Commission©s complaint processes. ... [R]egardless of whether Contel ASC is found liable or not in any complaint proceeding, our analysis of the anticompetitive implications of the merger would not be impacted").

43 See, e.g., SBC, 56 F.3d at 1491 (Upholding the Commission©s refusal to impose equal access duties on a cellular carrier in a license transfer proceeding in part because "the Commission is currently addressing in a separate rulemaking the question whether it should require all cellular carriers to provide equal access")- See also Hale v. FCC, 425 F2d 556 (D.C. Cir. 1970); Plough Broadcasting, Inc., Memorandum Opinion and Order, 70 FCC 2d 683 (1978).

46 Reply at 8.

47 Id. at 5.

48 SBC, 56 F.3d at 1491-92 and cases cited therein.

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III. OMISSION OF CERTAIN ORDERING CLAUSES IN THE ORDER

17. Contentions of the Parties. Comcast also alleges that the Order improperly allows Cellco to hold interests in two licenses in the same markets, in violation of Section 22.942 of our rules.49 Comcast states that the ordering clauses of the Order erroneously required divestitures of only four of the ten markets in which, before the transfer, BAMS and NYNEX Mobile held both cellular licenses (or interests in them).50 Comcast argues that the Order erroneously omitted requiring either that BAMS divest the A-side licenses it controls or that NYNEX Mobile divest the "minority interests" in the B-side licenses that it holds through an entity named Springwich Cellular in six markets.51

18. In its Opposition, Cellco responds that©the Bureau©s Order noted in paragraphs 5 and 6 both that Bell Atlantic and NYNEX had committed to divest interests in all ten markets in question, and that the Bureau expected that those divestitures would be accomplished.52 Furthermore, Cellco alleges the issue is moot, because when Bell Atlantic and NYNEX transferred their respective interests to Cellco on July 1, 1995, they divested either an A-side or a B-side interest in each of the ten markets.

19. Discussion. The Bureau©s omission of six ordering clauses requiring the divestiture of certain markets was an inadvertent error. The Order did state that Bell Atlantic and NYNEX had committed to divest either the A-side or B-side cellular interests in all ten markets and the Bureau expected that those divestitures would be accomplished.53 Indeed, all the divestitures were accomplished in full, eliminating all overlapping interests. We find that Comcast has, as before, noted a technical error in the Bureau©s Order that is now moot.

IV. REGIONAL OR NATIONAL GEOGRAPHIC MARKET

20. Contentions of the Parties. In the Order, the Bureau declined to find a regional or

49 Section 22.942,47 CJFJl. § 22.942, provides that "no person may have a direct or indirect ownership interest in licensees for both channel blocks [A-side and B-side] in overlapping cellular geographic service areas, unless such interests pose no substantial threat to competition."

50 Application at 7. The four are NYNEX Mobile©s interest in the B-side license in Pittsfield, , and BAMS©s A-side licenses in Providence and Newport, , and New Bedford, Massachusetts.

51 These six markets are Bridgeport, Hartford, New Haven, New London, and Windham, Connecticut, and Springfield, Massachusetts.

52 Opposition at 4.

53 Order, 10 FCC Red at 13369-70,1 5.

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national geographic market as a result of the transfer.54 According to Comcast, the Bureau made little effort to ascertain whether Cellco would be operating on a regional or national basis and ignored Comcast©s evidence of just such types of conduct.55 Specifically, Comcast argues that the overriding goal of the BAMS-NYNEX merger is to (i) sell its product on a regional or national basis; (ii) adopt a national centralized management structure; (iii) set rates on a national basis; (iv) sell a large percentage of portable units as opposed to car-bound units; and (v) offer widespread subscription to regional or national service options. This, according to Comcast, is exactly the type of conduct that the Bureau in the Order stated would demonstrate that Cellco was operating in a regional or nationwide market.56 Comcast also maintains that the Order ignores Cellco©s publicly revealed plans to integrate cellular systems and develop advanced intelligent networks and circuit and packet- switched data transmission services to be deployed "over larger territory.11 Comcast further asserts that these actions are the types of conduct that the Order specified would raise anticompetitive concerns and would have "antitrust consequences."57

21. Discussion. Comcast has misread the Bureau©s Order. The Order noted Comcast©s implication that the relevant geographic market (for purposes of analyzing the competitive effects of the transfer) was regional. Nevertheless, the Bureau concluded that the Commission-licensed areas in which BAMS and NYNEX Mobile provided cellular service were the relevant geographic markets in which to analyze the competitive effects of the transfer.58

22. Further, the Order did not state that evidence demonstrating a regional or national geographic market would show that the transfer would cause anticompetitive effects.59 Instead, the Ordir declined to make any finding regarding regional or national geographic markets on the record before it and indicated that more substantive showings supporting the finding of a regional or geographic market may be presented in future cases.60 Moreover, we find no merit to Comcast©s claim that Cellco©s plans to capture regional economies would raise anticompetitive concerns and have

54 Id. at 13374,1 20.

55 Application at 6 n.7; Reply at 7. 56 Id.

57 Application at 6 n.9; Reply at 1.

58 Order, 10 FCC Red at 13374, fl 18, 20 ("The fact that one or more of the providers operates many systems or has a national brand name may help or hurt its sales, but does not increase the area in which non-roaming service is available to customers, the number of providers vying for any customer©s business in any one place, or the way customers consume service").

59 Order, 10 FCC Red at 13373-13375, U 17-21.

« Order, 10 FCC Red at 13374-13375,1 20.

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antitrust consequences.61 If sufficient evidence were presented, we do not foreclose a finding of anticompetitive conduct in a regional or national market. However, based on the record before us, Comcast has failed to support such a finding.

V. BELL ATLANTIC©S ALLEGEDLY ANTICOMPETITIVE ACTS

23. Contentions of the Parties. Comcast raises before us, as it did before the Bureau, allegations of four anticompetitive acts by both Bell Atlantic (BAMS©s ultimate parent company) and BAMS. The four alleged acts in question consisted of: (1) Bell Atlantic denying Comcast access to a directory database as promptly as it offered access to BAMS; (2) Bell Atlantic foreclosing Comcast from advertising in Veteran©s Stadium in Philadelphia; (3) Bell Atlantic inviting Comcast to participate in a personal numbering trial only on very short notice; and (4) BAMS forcing Comcast to turn off a cellular service tower in the Spectrum Arena in Philadelphia.62 Comcast alleges that the Bureau had sufficient evidence in the record to conclude that these acts demonstrate Bell Atlantic©s ability to leverage its monopoly power improperly to discriminate against non-affiliated cellular operators.63 Comcast maintains that this evidence amounted to a prima facie showing that grant of the transfer was not in the public interest.64

24. Based on these allegations, Comcast argues that the threat of Bell Atlantic leveraging its local landline monopoly power into wireless markets is real.65 Comcast maintains that a complaint filed under Section 20866 of the Communications Act is not the correct remedy for such alleged abuses.67 Comcast also objects to the Order©s implication that any misconduct by BAMS should not be considered because, if it did -jccur, it would occur regardless of the transfer.68

61 Application at 6, n.9.

62 Order, 10 FCC Red at 13377-13378, H 26-29.

0 Application at 10.

" Id. at 12.

65 Id. at 13-14.

66 47 U.S.C. § 208 ("Any person, any body politic or municipal organization... complaining of anything done or omitted to be done by any common carrier subject to this Act. . . may apply to said Commission by petition which shall briefly state the facts, whereupon a statement of the complaint thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint or to answer the same in writing within a reasonable time . . . ").

67 Application at 10-11.

68 Id. at 10.

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25. In its Opposition, Cellco states that the Bureau correctly dismissed these charges, noting that (1) Comcast raised local exchange carrier issues and not cellular issues, and (2) Comcast did not raise any questions as to Cellco©s qualifications.69 Cellco also denies Comcast©s characterization of the facts of all four incidents.70 Cellco maintains that, if Comcast is seeking new rules to prevent such alleged "leveraging" by a landline telephone company, it should ask for a rulemaking. Furthermore, Cellco alleges that, if Comcast wants to charge Bell Atlantic with violating existing rules, it should file a complaint.

26. Discussion. We agree with the Bureau©s analysis of Comcast©s four allegations and with the Bureau©s decision about them. The Bureau found that the conduct alleged does not implicate any specific Commission rule and therefore was to be evaluated under the range of relevant non-FCC misconduct set out in Character Qualifications and Character Qualifications Modification The acts alleged by Comcast are not adjudicated violations of any antitrust or other law protecting competition. Therefore, there is no legal basis upon which to include the alleged acts as weighing against a finding that Cellco is qualified to be a Commission licensee under Section 309. Consequently, the assignments and transfers of control of the BAMS and NYNEX Mobile cellular licenses to Cellco meet the public interest test of Section 310(d) and its competitive component.72 The small number of acts by Bell Atlantic and BAMS, even if they occuned as Comcast alleges, do not rise to the level of a showing that the transfer may harm competition as a whole or frustrate any Commission policy. We also agree with the Bureau that Comcast complains about conduct that may be the kind of vigorous competition in which competitors may engage.73 In addition, as stated by the Bureau, our complaint processes are available to remedy individual acts that violate the Act and our rules.74 We believe the proper fora for adjudicating claims of isolated misconduct are the Section 208 complaint process and the antitrust courts, not a license transfer proceeding.75 We will promptly and appropriately address any complaints of anticompetitive conduct within our prescribed complaint process.

27. Most important, the Bureau properly concluded that Comcast has neither alleged nor

Opposition at 11.

70 Reply Comments at 18-20.

71 Order at 10 FCC Red at 13379,1 33.

72 Id. at 13379-80, 1 34.

73 Id. at 13380 & n.56, 1 36 & n.56.

74 Order, 10 FCC Red at 13382-13383,1 37. See Indianapolis Tel. Co. v. Indiana Bell Tel. Co., Inc., 1 FCC Red 228 I 10 (1986).

75 See Contel, Inc., 6 FCC Red 1003, 1005 (1991); Corp. 65 RR2d 1354, 1356 (1988); General Electric Co., 3 FCC Red 2803 (CCB 1988); Craig O. McCaw, 9 FCC Red 5836 (1994).

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shown that such acts (assuming again that they occurred and were anticompetitive) are either likely to be repeated more often after the transfer than they were before, or that they are likely to be more severe in effect after the transfer than they were before. For the Bureau and the Commission to apply this standard in license transfer proceedings is not "chilling."76 On the contrary, the Order properly limits the scope of the competitive analysis in such proceedings to changes that will occur as a result of the transfer in question.77

28. Finally, Comcast is mistaken hi comparing the present case to our decision hi McCaw, where we imposed conditions to protect against anticompetitive abuses.78 The conditions we imposed there were to minimize the risks of anticompetitive effects that arose for the first time as a result of the transfer.79 Here, on the contrary, Comcast is complaining about alleged conduct that pre-dates the transfer. Even assuming that the conduct in question were anticompetitive, Comcast has neither claimed nor shown that, if it is repeated post-transfer, it will occur more often or be more severe hi effect as a result of the transfer.80

VI. CONCLUSION

29. We find that the Bureau properly evaluated and granted the applications of NYNEX Mobile Communications Company and Bell Atlantic Mobile Systems, Inc., to transfer control of eighty-two cellular radio licenses to Cellco. The central fact remains that, in each cellular market involved, there were and will remain fully independent and competing A-side and B-side carriers. The errors hi the Older caused no substantive harm or confusion, and one was cured at consummation of the transfer. The Bureau properly found, in addition, that the transfer would result in pro-competitive efficiencies and economies that would not be achievable without the transfer.81 We find, as the Bureau did, that these effects will benefit competition, consumers, and the public interest. For the reasons discussed above, we deny Comcast©s Application for Review.

76 Application at iii, 10.

77 See supra, n. 69. In particular, the Order is consistent with the antitrust laws relating to mergers, chiefly Section 7 of the Clayton Act. Order at 13373, n. 9. The Bureau properly exercised its discretion not to invoke its Clayton Act authority in this proceeding.

78 Application at 10-11 at n.19.

79 See, e.g., McCaw, 9 FCC Red at 5871,1 56.

80 Group, 12 FCC Red 2624, 2644 and 2650, tl 42, 57.

81 Order, 10 FCC Red at 13384-85, 1 46. Comcast does not challenge this finding.

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VII. ORDERING CLAUSE

30. ACCORDINGLY, IT IS ORDERED pursuant to Sections 4(i) and 310(d) of the Communications Act, as amended, 47 U.S.C. §§ 154(i) and 310(d) and Section 1.115 of the Commission©s rules, 47 CFR. § 1.115, that the Application for Review of the Wireless Telecommunications Bureau©s May 19, 1995 Order filed by Comcast Cellular Communications, Inc. IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton Acting Secretary

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