Federal Communications Commission __ DA 96-1947
Federal Communications Commission 
Washington, D.C. 20554
In reply refer to: 
DA 96-1947
November 21, 1996
Released: 11/21/96
Mr. David Walker 
Direct Dial Audio Corporation 
5754 Duck Lane 
Whitehall, Michigan 49441
Re: Informal Complaint No. 96-07892. 
Dear Mr. Walker:
The Enforcement Division of the Common Carrier Bureau has completed iis review of 
your complaint filed with the Federal Communications Commission (Commission) on February 
13,1996, the Amendment to the Complaint filed on March 6,1996, and the Supplementary Brief 
to the Complaint filed on June 4,1996. As you were informed in a telephone conversation with 
this Division on June 21, 1996, the complaint will be treated as an Informal Complaint because 
it does not meet the requirements of a Formal Complaint See 47 C.F.R §§ 1.720-1.735.
Regardless of the substance of your claim, your complaint is outside of the limitations 
period established by the Communications Act of 1934, as amended (the Act). Section 415(b) 
of the Act requires that complaints for the recovery of damages be filed within two years from 
the time the cause of action accrues. 47 U.S.C. § 415(b). Your complaint, which requests 
damages, was filed on February 13, 1996; therefore, your cause of action must have accrued on 
or after February 13, 1994. Although your complaint does not state a specific date on which 
Michigan Bell refused to provide service to Direct Dial Audio Corporation (Direct Dial), your 
first complaint that raised this matter against Michigan Bell was filed in October 1990 in the 
Muskegon County Circuit Court. You also filed an action against both Michigan Bell and GTE 
in federal court in October 1991. Your cause of action against these two defendants, therefore, 
accrued well before February 1994. Accordingly, your complaint must be dismissed because it 
falls outside of the limitations period in the Act
Moreover, the Act does not permit Direct Dial to pursue a cause of action both in federal 
court and at the Commission. Section 207 of the Act provides the following:
[a]ny person claiming to be damaged by any common carrier subject to the 
provisions of this Act may either make complaint to the Commission as
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which such common carrier may be liable under the provisions of this Act, in any 
district court of the United States of competent jurisdiction; but such person shall 
not have the right to pursue both such remedies.
47 U.S.C. § 207 (emphasis added). You filed an action against Michigan Bell and GTE in the 
Federal District Court for-the Western District of Michigan in October 1991. Complaint at 9. 
Because Direct Dial has already filed a complaint in federal court regarding essentially the same 
cause of action, Section 207 of the Act precludes it from seeking relief from the Commission.
Even if the Act permitted the Commission to rule formally on your substantive 
allegations, it is unlikely that it could grant your complaint.
For purposes of brevity, we have attempted to summarize the allegations contained in your 
complaint. You allege that Direct Dial was engaged in planning, developing, constructing, and 
operating "a State wide 976 telecommunication information network designed to provide, on a 
common carrier basis, 976 telecommunication services to the public consumers and business." 
Complaint at 3. You further allege that Direct Dial obtained a contract with GTE to become an 
"information provider", and "GTE was to provide and obtain service for the 616 LATA, 517 
LATA, and 313 LATA." Id at 4. You state that Direct Dial was restrained through the system 
established by Michigan Bell and GTE to provide service only to GTE customers in the 616 
LATA, and that this restriction has forced Direct Dial out of business. Id. You claim that 
Michigan Bell has refused to provide, as a tariffed service, exchange access in the 616 LATA. 
Id. at 24-36. With respect to GTE, you claim that it breached its contractual obligations with 
Direct Dial by its failure to require Michigan Bell to furnish access service to Direct Dial. Id 
at 37-42. You also point out errors made by the Michigan Public Service Commission (MPSC) 
and the Department of Justice in complaints by Direct Dial before those agencies. Id at 43-69.
The MPSC and the Department of Justice cannot be defendants with respect to your 
complaint. Pursuant to section 208 of the Act, complaints before this Commission must concern 
acts done or omitted to be done in contravention of the Act or this Commission's rules or orders 
by common carriers. Neither MPSC nor the Department of Justice are common carriers. Our 
review of your complaint will only address those alleged acts done or omitted to be done in 
contravention of the Act or this Commission's rules or orders by Michigan Bell and GTE, which 
are the only common carriers named as defendants. See 47 U.S.C. § 208.
After a thorough review of the materials you provided to the Commission, we have 
concluded that neither GTE nor Michigan Bell has violated section 251 of the Act. Section 251 
of the Act requires telecommunications carriers "to interconnect directly or indirectly with the 
facilities and equipment of other telecommunications carriers...." 47 U.S.C. § 251(a). The Act 
further requires local exchange carriers to "provide, for the facilities and equipment of any 
requesting telecommunications carrier, interconnection with the local exchange carrier's network 
for the transmission and routing of telephone exchange service and exchange access." Id § 
251(cX2XA).
Direct Dial does not provide "telecommunications" service, which is defined as "the
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transmission between or among points specified by the user, of information of the user's choosing 
without change in form or content of the information as sent and received" Id § 153(43). 
Consequently, Direct Dial is not a telecommunications carrier, i.e., "any provider of 
telecommunications services." Id § 153(44). Instead, the service Direct Dial provides, as 
described in your filings with the Commission, is an "information service," which is defined in 
the Act as "the offering of a capability for generating, acquiring, storing, transforming, 
processing, retrieving, utilizing, or making available information via telecommunications, and 
includes electronic publishing, but does not include any use of any such capability for the 
management, control, or operation of a telecommunications system or the management of a 
telecommunications service." Id. § 153(20). Because Direct Dial is not a telecommunications 
carrier, other telecommunication carriers, such as GTE and Michigan Bell, are not required to 
provide interconnection service pursuant to section 251.
Moreover, the Commission, in adopting rules to implement the interconnection provisions 
of the Act, made it clear that an information service provider would not be able to avail itself 
of the interconnection requirements of section 251 of the Act. Implementation of the Local 
Competition Provisions in the Telecommunications Act of 1996, CC Docket No. 96-98, First 
Report and Order, FCC 96-325, released August 6, 1996; see also 47 C.F.R. § 51.00 (1996). 
Pursuant to these rules, information service providers may take advantage of the interconnection 
provisions of the Act only to the extent that they also provide telecommunications services. The 
Report and Order provides the following:
We conclude that, if a company provides both telecommunications and information 
services, it must be classified as a telecommunications carrier for purposes of Section 251, 
and is subject to the obligations under section 251(a), to the extent that it is acting as a 
telecommunications carrier. We also conclude that telecommunications carriers that have 
interconnected or gained access under sections 251(aXl), 251(cX2), or 251(cX3), may 
offer information services through the same arrangement, so long as they are offering 
telecommunications through the same arrangement as -well
FCC 96-325, para, 995 (emphasis added). Your complaint does not show that you are providing 
both information and telecommunications services.
Your complaint would also require a retroactive application of the Commission's rules 
implementing section 251. You seek relief under Section 251 of the Act, which became law 
when the Telecommunications Act of 1996 was signed into law in February 1996. As already 
noted, our implementing rules were adopted in August 1996. Your allegations with respect to 
Michigan Bell and GTE occurred prior to the date on which our implementing rules were 
adopted Administrative rules do not have retroactive effect absent express authority from 
Congress. Bowen v. Georgetown University Hospital, 488 U.S. 204, 208 (1988). The 
Telecommunications Act of 1996 does not contain language that permits retroactive application.
Because we have determined that you are not a telecommunications carrier under section 
251 of the Act, we need not address your request for preemption under sections 252 and 253.
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251 of the Act, we need not address your request for preemption under sections 252 and 253.
This ruling is issued pursuant to sections 4(i) and 208 of the Communications Act of 
1934, as amended, 47 U.S.C. §§ 154(i) and 208, and authority delegated by section 0.291 of the 
Commission's rules, 47 C.F.R. § 0.291.
Sincerely,
John B. Muleta
ief, Enforcement Division 
Common Carrier Bureau
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