The full case caption appears at the
end of this opinion. PER CURIAM: Plaintiff Eagleview Technologies, Inc. appeals a decision by the district court that its claim that the defendants refused its request for common carrier service and discriminated against it in violation of the Communications Act of 1934 (“the Act”), 47 U.S.C. section 207 was invalid because the defendant, MDS Associates, a partnership, was not a “common carrier” within the meaning of the provisions of the act under which Eagleview sought relief. Eagleview also appeals a directed verdict against it on a Florida state law claim of civil theft and the award of costs to the appellees under Federal Rules of Civil Procedure 54, issues treated summarily at the end of this opinion. We affirm. ____________ This case began as a civil suit brought by Eagleview Technologies, Inc., against MDS, a District of Columbia general partnership, and its four general partners, David Anderson, Nancy Davis, James Dwyer, and David Hill. After Eagleview filed its complaint, because of disputes among the partners, Anderson was realigned as a plaintiff in the case. Anderson and Eagleview then jointly filed an amended complaint that contained ten claims, two of which are the subject of this appeal by Eagleview. I. Communications Act Claim A brief review of the facts is sufficient to understand the basis for our decision on this appeal. Anderson, Davis, Dwyer, and Hill formed a partnership, MDS Associates, in 1983, for the purpose of applying for ten different Multichannel Multipoint Distribution Service (“MMDS”) licenses from the Federal Communications Commission. The partnership had no written agreement. MMDS licenses are issued by the FCC in a lottery. Ten years later a license was granted to MDS for the E-Group, a channel of four frequencies for San Diego, subject to the condition that the licensee “provide service as a common carrier.” There followed a complex factual situation in which Anderson was at odds with the other three partners as to whether the partnership should utilize the license for common carrier purposes or whether the group should seek non-common carrier status from the FCC. It is undisputed that Eagleview requested common carrier service over the station for which a license had been granted. Also undisputed is that the partners other than Anderson decided they would rather act on a proposal from Prescient Telecommunications, Inc. offering either to enter into a joint venture with MDS, or to lease the E-Group channels from MDS as a non-common carrier. There were various maneuvers on both sides. Although the FCC denied MDS’s application to change their status from common carrier to non-common carrier in 1994, a second application was filed. A station was built by Anderson and Eagleview without permission or contribution from the other partners. It broadcast a test pattern, but the station has never provided service to any customer. That is the critical fact upon which the district court relied in entering judgment. The case went to trial and at the close of all the evidence, the court granted a Federal Rule of Civil Procedure 50 motion for the defendants on the ground that Eagleview failed to prove that MDS was a common carrier. We review de novo a district court’s grant of judgment as a matter of law. See Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 84 F.3d 1380, 1383 (11th Cir. 1996), cert. denied, 117 S.Ct. 2511 (1997). Eagleview’s case asserts a violation by MDS of sections 201(a) and 202(a) of the Communications Act. Section 201(a) provides that: It shall be the duty of every common carrier engaged in interstate or foreign communication by wire or radio to furnish such communication upon the reasonable request therefore; . . . 47 U.S.C. � 201(a). The key words are ” common carrier engaged in…communication.” The defendants in this case have never been engaged in the communication business. Section 202(A) provides: It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination” for or in connection with like communication services “or to make or give any undue or unreasonable preference or advantage to” any particular person or entity. 47 U.S.C. �202(A) The key words are to discriminate or give an undue preference “in connection with like communications services.” The defendants have never given communication service to any person or entity. Logic dictates that a carrier would have to be giving service to at least one customer to be guilty of discrimination against or exercising a preference against another. Both parties concede that only common carriers are subject to the requirements of the Act. A common carrier is defined by the Act to be:
any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy. . .
47 U.S.C. � 153(10). The FCC’s regulatory interpretation of the Act further defines a common carrier to be, “any person engaged in rendering communication service for hire to the public.” 47 C.F.R. � 21.2 (1992). The key words here are: “any person engaged” in rendering communication service. The defendants have never engaged in rendering any communication service. We affirm the decision of the magistrate judge who tried this case with simply a mention of certain facts which she found not to be in dispute. Neither the time of the request, nor at any time since, for that matter, has MDS held itself out as able to provide service to the public as a common carrier. We note that the Prescient agreement upon which Eagleview relies for the preference prong of the argument was one which apparently would affect the ownership of the license itself or depended upon MDS being able to provide service as a non-common carrier. It did not offer or agree to provide common carrier services to Prescient. The court stated: “In this case, MDS Associates had only four channels to offer and the facts of the case establish that when Eagleview made its request for service, the partners had not made a final decision concerning how the license would be utilized.” The appellant makes the argument that the district court erroneously focused on the date the request was made. The fact is, however, that even if Eagleview’s request for service is regarded as a continuing request, it has never become ripe for determination. There is no evidence that at any time since that request have the partners ever made a decision to operate under the license as a common carrier. It is undisputed that MDS had the option of never building a station and allowing their license to lapse, and, in fact, the group originally awarded the E-Group channels did precisely that. Although FCC provisions might cause a forfeiture of the license if MDS does not meet the conditions of the license and does not, in effect, go into the communications business by certain deadlines, there is neither a case nor a regulation that has been cited to this court that would make a licensee begin operations under a license if it decides not to utilize the license. We note, however, that at the time that the license was applied for, MDS Associates had no choice but to operate as a common carrier. The district court noted that, “In 1987 the FCC amended the rules to allow licensees to elect whether they would operate as a common or non-common carrier. Since that time common carrier licensees have had the option of converting to a non-common carrier status.” An application to convert the status of the license to one for a no-common carrier has been filed with the FCC and has been held in abeyance pending the resolution of this case. The able lawyers for the appellant have failed to cite any case which would indicate that a third party such as Eagleview could require a licensee of the kind we have here to start a communications business as a common carrier, especially when it had an option to attempt to convert to non-common carrier status. In fact, no case was cited to this Court which dealt with either the definition of a “common carrier” or a claim for discrimination or preference against an entity that was not actively in some kind of communications business. In every case, the entity which was sought to be charged with common carrier status was in some kind of communications business. See e.g., American Tel. & Tel. Co. v. FCC, 572 F.2d 17, 24 (2nd Cir.), cert. denied, 439 U.S. 875, (1978); Nat’l Assoc. of Regulatory Utility Comm’rs v. FCC, 525 F.2d 630, 642 (D.C.Cir.), cert. denied, 425 U.S. 992 (1976) (“NARUC I”); Nat’l Assoc. of Regulatory Utility Comm’rs v. FCC, 533 F.2d 601, 608 (D.C.Cir.1976) (“NARUC II”). The defendants argue that MDS should not be regulated under the Act because it did not engage in foreign or interstate communications. The Act does not apply to purely intrastate communication and states: Nothing in this chapter shall be construed to apply or to give the Commission jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service by wire or radio of any carrier. . . 47 U.S.C. � 152(b)(1). The court addressed the contested issue as to how far the signal of the station would reach if it was put in operation and thought that factual issue prevented it from making a decision on that argument. Until there is a plan to put a station in operation, it would not seem that this issue can be ripe for determination. In interpreting this prohibition, courts have held that the focus of the inquiry should be the nature of the service that to be rendered. See California v. FCC, 4 F.3d 1505, 1514 (9th Cir. 1993) (and cases cited therein). No opinions exist, however, on how to treat a station that has not yet begun broadcasting. Intertwined in this case have been the actions of David Anderson, asserted to be on behalf of and binding upon the partnership. There is no question but what those actions were committed without any prior authority and expressly disapproved by the other three partners. This fact was apparently known to Eagleview. Eagleview has cited no case which would indicate that the affairs of the partnership could be conducted by a single partner, without authority or approval of the majority of the general partners. II. Civil Theft Claim As to its civil theft claim, Eagleview has adopted the arguments made by its co-plaintiff, Anderson, in a separate appeal, No. 96-2945. In a separate unpublished opinion on that appeal we have explained that the decision for the defendants on the civil theft issue was correct because neither Anderson nor Eagleview established that the defendants acted with the requisite criminal intent. III. Award of Costs This Court reviews a cost award for clear abuse of discretion. See Cochran v. E.I. duPont de Nemours & Co., 933 F.2d 1533, 1540 (11th Cir.1991), cert. denied, 502 U.S. 1035 (1992). In this case we would affirm the award of costs under our Eleventh Circuit Rule 36-1 without opinion. See Terry Properties, Inc. v. Standard Oil Co., 799 F.2d 1523, 1540 (11th Cir.1986) (awarded costs even though they did not win their counterclaims). IV. Conclusion The court did not err in finding that no jury could properly determine that MDS was a common carrier within the meaning of the Communications Act of 1934, 47 U.S.C. section 207, so that Eagleview did not have a claim under either section 201(a) or section 202(a) of that Act. The court did not err in deciding that there was insufficient evidence for a jury to decide that the defendants had the requisite felonious intent to be liable under Florida’s civil theft statute. The district court did not abuse its discretion in awarding costs to the defendants as the prevailing parties in this case. AFFIRMED.
EAGLEVIEW TECHNOLOGIES, INC. V. MDS ASSOCS. IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 97-2090 D.C. Docket No. 94-82-CIV-T-21C EAGLEVIEW TECHNOLOGIES, INC., Plaintiff-Counter- Defendant-Appellant, DAVID R. ANDERSON, Plaintiff-Counter-Defendant Counter-Claimant, versus MDS ASSOCIATES, A Florida general partnership; JAMES DWYER, et al., Defendants-Counter- Defendants Counter- Claimants-Appellees, MICHAEL PAOLINI, President of Eagleview, Counter-Defendant, PRESCIENT TELECOMMUNICATIONS, INC., et al., Defendants-Counter-Defendants. Appeal from the United States District Court for the Middle District of Florida (September 23, 1999) Before ANDERSON, Chief Judge, RONEY, Senior Circuit Judge, and COOK*, Senior District Judge. *Honorable Julian Abele Cook, Jr., Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation.
