WPC 2?BJZECourier3|j#XP\  P6Q9XP#HP LaserJet 4M (PCL) R#6326 LPT1HL4MPCAD.PRSx  @\-!MX@ X-#XP\  P6Q DXP#2,qKXCourierTimes New Roman"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd<?xxx,ix6X@`7X@7jC:,9Xj\  P6G;XP\ @^.$h'j;U7G;A7 ier<?xxx,ix6X@`7X@2O^<nK Z3|jTimes New RomanTimes New Roman BoldTimes New Roman Italic"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d"" yO-ԍ Complaint, Exhibit 1.> On July 11, 1994,  x=defendant acquired substantially all of TMS, and TMS's rights and obligations under the 1993  Xv- xcontract were assigned to defendant.IvX yO -ԍ Answer and CrossComplaint at 2.I  !0I   !0I During the next several months, employees of complainants  xand defendant discussed defendant's service to complainants, complainants' alleged problems with  XH- xZthat service, and complainants' alleged failure to pay for services rendered.TXH yO - xԍ Complaint, Declarations of Ronalda Lombardo (Lombardo Declaration) at 3 and Michelle Arce (First Arce  xhDeclaration) at para. 4; Answer and CrossComplaint, Affidavits of Donald Millhofer (Millhofer Affidavit) at 1 and Carrie Gonzalez (Gonzalez Affidavit) at para. 2. T The parties could not  xreach agreement, and on December 28, 1994, defendant began terminating its service to  X -complainants' customers.w  yO-ԍ Answer and CrossComplaint, Affidavit of Craig Fricke (Fricke Affidavit) at 5.w Complainants filed this complaint on December 30, 1994.  X -l Ul llU  X -  3. ` ` Complainants allege that defendant treated complainants differently from   defendant's other customers because complainants are resellers of defendant's services. Thus,   <complainants assert, defendant delivered a level of service to complainants that not only violated   the Act, but that also was inferior to the service defendant delivered to its other customers, further  X-  0violating the Act and the Commission's resale policy.B yO-ԍ Complaint at 1011.B As a result of this discriminatory   treatment, complainants state, complainants' customer base was significantly eroded, and  Xb-  mcomplainants lost revenues and incurred "fraudulent charges" in excess of $600,000.8b(  yO;-ԍ Id. at 5.8   yComplainants seek a Commission order requiring defendant to provide service to complainants  X4-and to pay monetary damages and a forfeiture.>4  yO-ԍ Complaint at 1112. >  X-  4. ` ` Defendant filed an answer opposing the relief requested in the complaint, and a   [crosscomplaint seeking monies allegedly due from complainants in the amount of $654,014.31,   plus interest and fees. Defendant also requests that the Commission hold a hearing on  X-  0complainants' fitness to serve as resellers.M H  yO%-ԍ Answer and CrossComplaint at 1213.M  !0I   !0I For the reasons set forth below, we dismiss defendant's crosscomplaint." ,-(-(ZZ"Ԍ X-l Ul llUԙ-W III. DISCUSSION l  X-llU A.` ` Section 201(a) Issues é Failure to Provide Service  X-` ` 1. Contentions of the Parties pp     Xv-  ^5. ` ` Complainants' arguments . Complainants allege that defendant violated Section  X_-  !201(a) because it failed to provision _ yO-  ԍ "To provision" refers to the process whereby a common carrier prepares and equips a customer for receiving service from the common carrier. complainants' customers in a timely manner and it   ultimately terminated service to complainants' customers. In affidavits, complainants' employees  X1-  jstate that "hundreds of lines" were never provisioned at all.t 1  yO -ԍ Complaint at 3, Lombardo Declaration at 1, 4, First Arce Declaration at 4.t Complainants state that they did   xnot pay the invoices defendant sent them because defendant had extended credit to complainants  X -to compensate for the poor service defendant was providing.D   yOd-ԍ Complainants' Brief at 45.D  X -  36. ` ` Complainants present four documents, in addition to the affidavits previously   mentioned, to support their contentions. The first document is the job description of the defendant  X -  customer service representative who dealt most regularly with complainants.F @ yO-ԍ Complainants' Brief at 1012.F That description,  X-  complainants note, makes no mention of serving defendant's reseller customers.2 yO-ԍ Id.2 Complainants'   >second and third documents purport to be written service complaints from complainants to  Xb-  defendant.b`  yOs-ԍ Complainants' Brief, Attachments to Second Declaration of Michelle Arce (Second Arce Declaration). The fourth document is a set of three order processing requests, provided by  XK-  complainants as "demonstrative examples of defendant's failure to properly provision service."NK  yO-ԍ Complainants' Reply Brief, Exhibit 7.N  X-  _7. ` ` Defendant's arguments . Affidavits by employees of the defendant state that  X-  virtually all provisioning was done in a timely manner.b  yO7"-ԍ Answer and CrossComplaint at 4, Gonzalez Affidavit at 2.b Defendant states that it terminated  X-  yservice to complainants because of six months of unpaid invoices.} yO$-ԍ Answer and CrossComplaint at 1112 and at Attachments FI; Defendant's Brief at 6. } Defendant also states that   in acquiring TMS, defendant acquired a going concern, so that the same employees remained with   defendant to provide the same service to the same set of customers out of the same service center. ",-(-(ZZ"  X-Employee training, they argue, was therefore adequate.G yOy-ԍ Defendant's Reply Brief at 10.G     X-` ` 2. Decision hh,V  X-  X-  "8. ` `  Burden of proof requirements. The complainant has the burden of proof in  X-  establishing a violation of the Act in a formal complaint pursuant to Section 208 of the Act.X yO-  ԍ Directel, Inc. v. American Telephone and Telegraph Company, 11 FCC Rcd 7554, 7560 (Com. Car. Bur. 1996).   iFor the reasons discussed below, we conclude that complainants have failed to carry their burden  X_-in proving a violation of Section 201(a) of the Act._ yO -  ,ԍ Section 201(a) of the Act provides that every common carrier offering an interstate communications service shall "furnish such communication service upon reasonable request." 47 U.S. C.  201(a). pp  X1-  9. ` ` Evidence presented . Neither the complainants' affidavits nor the contract between   Ncomplainants and defendant sustain complainants' burden of proof. The contentions in   complainants' affidavits are directly contradicted by those in affidavits presented by defendant.  X -  KComplainants' affidavits state that there were "long delays" in processing complainants' orders.S  yO-ԍ Complaint at 3, Lombardo Affidavit at 1. S   Affidavits from defendant's employees state that all orders were processed within a day or, at   most, within a few days, and that delays often were due to the faulty customer information  X -  provided by complainants.b  yO-ԍ Answer and CrossComplaint at 4, Gonzalez Affidavit at 2.b Further, the contract between the two parties appears to give   <defendant the right to terminate its transmission services upon a determination by defendant that  Xy-  /complainants' payments are in arrears.dXy(  yOR-  Yԍ Complaint, Contract Attachment at 3, para. I. I., which reads "If T M Sepulveda determines that payment has   [not been received by the due date...then TM Sepulveda may, at its sole discretion and without prior notice to purchaser, terminate transmission services in part or in whole." d Defendant introduced into evidence six months of  Xb-  partially unpaid invoices sent to complainants,XbH  yO[-  ԍ Answer and CrossComplaint, Attachments FI. Contrary to defendant's statement that complainants made   xno payments in response to the invoices, the invoices state that between June 23, 1994 and December 19, 1994, complainants made payments of $339,950. The total amount remaining owed appears to be $521,440.58. and denies it extended credit to complainants.bh yO{"-ԍ Defendant's Reply Brief at 3, 10 n. 7; Answer and CrossComplaint, Fricke Affidavit at para. 11.   The contract states that continued service in the face of nonpayment shall not be interpreted as  X4-a waiver by defendant.W4 yO%-ԍ Complaint, Contract Attachment at 3, para. I.IW ",-(-(ZZe"Ԍ X-   10. ` ` Job description . Complainants' documentary evidence also does not sustain the   required burden of proof. The job description of defendant's customer service employee is some   evidence that perhaps the position's occupant was not sufficiently prepared to assist complainants,   but this evidence is outweighed by the fact that the person who served in this role for defendant   was the same person who served, apparently satisfactorily, in this role for defendant's  X-  /predecessor, TMS.y yO-ԍ Complaint at para. 4; Answer and CrossComplaint, Gonzalez Affidavit at para. 1.y Complainants state that procedures and equipment changed after the   -defendant acquired TMS, but the holder of the position testifies in her affidavit that she was able  X_-to continue to service complainants' account in a routinely prompt manner.c_X yOh -ԍ Answer and CrossComplaint, Gonzalez Affidavit at para. 3.c  X1-  A 11. ` ` Written notices. Complainants produce two written notices to defendant that  X -  allegedly are complaint notices.f  yO-ԍ Complainants' Brief, Attachments to Second Arce Declaration. f We find neither document to be convincing evidence. Neither   statement indicates how long defendant was taking to process specific provisioning orders, nor   how the number of the problem accounts compared to the number of accounts defendant had   successfully provisioned. Neither statement shows how many accounts defendant failed to provision, nor provides a list of those failed accounts.  X-   12. ` ` Sample provisioning requests. The three sample provisioning requests by  Xy-  complainants are actually one provisioning request and two requests to disconnect service.Nyx yO-ԍ Complainants' Reply Brief, Exhibit 7.N The   [provisioning request was first made on September 28, 1994, and reiterated on October 26, 1994,   >but there is no indication whether the account ultimately was provisioned, nor do we know   defendant's response to this evidence, because it was first introduced in complainants' reply  X-  brief.  yO-  ԍ We note that complainants have submitted certain pleadings and evidence in an untimely manner,   unaccompanied by a request for a time extension or a motion for leave to submit. Complainants' answer to the   crosscomplaint and its interrogatories to defendant were submitted after the deadline. Defendant's Brief at 2 n. 1.   Complainants' brief contained three new affidavits and two new complaint notices. Defendant's Reply Brief at 57. Complainants' reply brief contains three new order processing requests and a new analysis of the invoice timeliness. We do not find a single provisioning request to be sufficient evidence of "hundreds" of  X-failed provisioning attempts.T!  yOo!-ԍ Complaint, Lombardo Declaration at para. 9.T  X-  X- B.` ` Section 201(b) Issues é Unreasonable Charges and Practices  X-` ` 1. Contentions of the Parties  X|-  N 13. ` ` Complainants' arguments . Complainants assert defendant violated Section 201(b)"|H !,-(-(ZZP"   when it delayed, and ultimately stopped, sending customer billing and call traffic information to  X-  complainants.u" yOb-ԍ Complaint at 10; Complainants' Brief at 15; Complainants' Reply Brief at 36.u In addition, complainants state that defendant changed switches during the  X-  xbusiness day, disrupting complainants' customers, causing complainants to lose customers,U#X yO-ԍ Complaint, Lombardo Declaration at para. 5. U and  X-  permitted "fraudulent charges" to be added to complainants' account.8$ yOT-ԍ Complaint at 4.8 As evidence of defendant's   poor service, complainants provide affidavits from complainants' employees who were assigned  X-  [to work with defendant.%x yO -  ԍ Complaint, Lombardo and First Arce Declarations; Complainants' Brief, Second Arce Declaration and Declarations of Erik Solis and Steven G. Barkus. In addition, complainants provide an invoice analysis,N& yO-ԍ Complainants' Reply Brief, Exhibit 8.N two written  Xv-  complaints to defendant regarding service,^'v`  yO-ԍ Complainants' Brief, Attachments to Arce Declaration.^ and two delayed disconnection requests that were  X_-  offered as evidence of violations of Section 201(a).s(_  yO-ԍ See paras. 6, 12, supra; Complainants' Reply Brief, Exhibit 7.s Complainants state that under the service   agreement assigned to defendant, defendant was obligated to provide complainants with billing   information every three days, but that the invoice analysis reveals that the billing cycles were  X -much longer.I)  yOK-ԍ Complainants' Reply Brief at 12.I  X -   14. ` ` Defendant's arguments . Defendant's employees contend, in affidavits, that  X -  kdefendant provided customer traffic information in a timely manner.*  yO-ԍ Answer and CrossComplaint, Affidavit of Scott Okiishi (Okiishi Affidavit) at para. 6. Defendant states that   icustomer usage information to complainants eventually was discontinued because of five months  X -  of nonpayment by complainants.J+  yO-ԍ Answer and CrossComplaint at 11.J Defendant contends that it quickly restored customers dropped  X-  due to switch changes,c,0 yOq!-ԍ Answer and CrossComplaint, Okiishi Affidavit at para. 10.c and that defendant was the first to detect and block calls that "may have  Xy-  been fraudulently billed," and that defendant has not required complainants to pay those charges.k-y yO#-ԍ Id. at para. 8; Affidavit of Laura Symsick at para. 7.k  "4P-,-(-(ZZ"Ԍ X-ԙ` ` 2.  Decision  X-   15. ` ` Complainants have not sustained the required burden of proof demonstrating that  X-  >defendant's conduct constituted unreasonable practices under Section 201(b) of the Act.. yO4-  ,ԍ 47 U.S. C.  201(b). Section 201(b) states that "[a]ll charges, practices, classifications and regulations for and in connection with such communication service, shall be just and reasonable."  X-  K Defendant provided at least two types of customer usage information: call traffic information, and   jbilling information, or invoices. Although the affidavits by complainants' employees state that   call traffic information was unduly delayed, the defendant's affidavits state that the information   was delivered three times a week to Linq and weekly to ACC. The contract cited by  XH-  zcomplainants merely states that "[t]raffic reports will be provided in a timely manner."X/H  yO -ԍ Complaint, Contract Attachment at para. 11.B.4.X The   icontract also appears to give defendant the right to terminate service, including termination of the  X -  ^provision of call traffic information, if complainants are in arrears in their payments.A0  yO{-ԍ Id. at para. I. I.A   =Complainants appeared to be in arrears in November 1994, when defendant stopped providing  X -complainants with traffic information.T1 @ yO-ԍ Answer and CrossComplaint, Exhibits FI. T  X -  16. ` ` Complainants' evidence regarding billing information is equally unconvincing. The   threeday period referred to in the contract section refers to complainants' payment obligations,  X-  not defendant's billing obligations.H2X yO-  ԍ That section states: "TM Sepulveda shall furnish to purchaser an invoice covering the previous week (sic)   wcharges. Payment shall be due TM Sepulveda from purchaser within (3) three days of the invoice date." Complaint, Contract Attachment at para. I. G.H Complainants' analysis of billing intervals also does not  Xy-  provide evidence of the unreasonableness of defendant's practices.e3Xy  yO-  ԍ Out of 103 invoices, nine of the invoices required ten or more days for delivery after the close of the invoice   period, with the longest delay being eighteen days. The time between invoices that were delivered to complainants generally was a matter of days, but at most three weeks. e Under the contract,  Xb-  defendant appears to have been obligated to provide invoices weekly.A4b yO# -ԍ Id. at para. I. G.A Complainants' analysis   indicates that the period between invoices generally was weekly, with occasions of longer  X4-  periods.54 yO#-  ԍ Complainants' Reply Brief, Exhibit 3. Out of 99 reported invoice intervals, 29 were longer than seven days, with the highest being 19 days. Whether these longer periods constitute a breach of contract is an issue properly   .addressed by a state court. Even if the longer periods were determined to be a breach, that, in"5,-(-(ZZe"  X-and of itself, would be insufficient to show a violation of Section 201(b) of the Act.6 yOy-ԍ ACC Long Distance Corp. v. Yankee Microwave, Inc., 8 FCC Rcd 85, 88 n. 46 (1993).   X-  17. ` ` The two lists of problems complainants addressed to defendant do not change our   decision. The points made in these notices generally have been rebutted by defendant's   affidavits. For example, the notices discuss provisioning problems and switch changes, but  X-  defendants respond to these issues in their affidavits.n7X yO-ԍ See, e.g., Answer and CrossCompliant, Okiishi Affidavit.n The notices also lack the specificity and   overview to prove complainants' sweeping allegations against defendant. One notice states that   complainants lost "several" authorization codes when defendant changed switches, but the loss   -of several codes out of several hundred would not, on the face of it, constituted an unreasonable  X1-  practice under Section 210(b). We also find unpersuasive the two delayed disconnection requests.   Delayed responses to two individual line requests do not appear to constitute unreasonableness under the Act.  X - C.` ` Section 202(a) and Resale Policy Issues é Discriminatory Practices  X -` ` 1. Contentions of the Parties  Xy-  18. ` ` Complainants' arguments . Complainants state that defendant's allegedly poor   service to complainants demonstrated a pattern of actions evidencing discrimination against  XK-  .complainants in violation of Section 202(a) of the Act and of the Commission's resale policy.W8K yO-ԍ Complaint at 8, 11; Complainants' Brief at 8. W   jComplainants allege that defendant's employees were required to put complainants' orders "on  X-  Kthe back burner" until defendant's other customers were provisioned.9x yOF-  ԍ Complaint, Lombardo Declaration at 3, First Arce Declaration at 4; Complainants' Brief, Second Arce Declaration at 10. In addition, complainants  X-  kassert that defendant would not make intraLATA{: yO-ԍ LATA, or "local access and transport area," is defined at 47 U.S.C.  153(25). { rates available to complainants because  X-  ^defendant viewed complainants as competitors with defendant for the retail market.x;`  yO -ԍ Complaint, Lombardo Declaration at para. 8, First Arce Declaration at para. 12.x   Complainants also assert that defendant's employees would not quote rates to complainants for   <dedicated access customers because defendant was going to keep customers billing over $20,000  X-  per month for itself.2<  yOK$-ԍ Id.2 Finally, complainants assert that defendant segregated resellers by serving  X-them only out of the office center that serviced complainants.C=  yO&-ԍ Complainants' Brief at 12.C "=,-(-(ZZ"Ԍ X-l Ul U   X-  19. ` ` Defendant's arguments . VAffidavits by defendant's employees contend that all  X-   orders and complaints from all defendant's customers were processed by defendant on a first X-  =comefirstserved basis.> yO4-ԍ Answer and CrossComplaint, Gonzalez Affidavit at paras. 2, 4; Okiishi Affidavit at para. 9. The defendant's employee charged with provisioning complainants'  X-  xaccounts states that she did not process complainants' orders out of sequence.c?X yO-ԍ Answer and CrossComplaint, Gonzalez Affidavit at para. 2.c The defendant's   employee who discussed intraLATA rates with complainants states that he did not offer such a  Xv-  Krate to any similarly situated customer.d@v yO -ԍ Answer and CrossComplaint, Millhofer Affidavit at para. 5.d He also denies saying defendant would keep customers  X_-  Lbilling over $20,000 a month for itself.2A_x yO -ԍ Id.2 Finally, defendant states that it serviced only resellers   out of the service center that served complainants because defendant had recently purchased TMS,   a reseller that operated out of that site, and it made business sense to continue this practice for  X -the time being.dB  yO-ԍ Answer and CrossComplaint at 7; Defendant's Brief at 12. d  X -` ` 2. Decision  X -  $20. ` ` In alleging a violation of Section 202(a),C   yO-  ԍ Section 202(a) of the Act prohibits "any unjust or unreasonable discrimination in charges, practices,   ,classifications, regulations, facilities or services" for "like" communications services of a regulated common carrier;   and prohibits a common carrier from exercising any "undue or unreasonable prejudice or disadvantage" against any person or class of persons. 47 U.S.C.  202(a).  the complainant must make bear the  X -  evidentiary burden in showing that the carrier has discriminated in reference to a "like   Mcommunication" service or has given an "advantage or preference" to a person or group of  Xy-persons in connection with the service.DXy  yO-  kԍ See Competition in the Interstate Interexchange Marketplace, 6 FCC Rcd 5880, 5903 (1991); MCI  yOr-  Telecommunications Corp. v. FCC, 917 F. 2d 30, 39 (D.C. Cir. 1990). The burden then shifts to the defendant to show that the discrimination is justified and, therefore, reasonable. Complainants have failed to meet this burden.  XK-  C21. ` ` The evidence complainants provide is effectively rebutted by the evidence   presented by defendant. Complainants state that they received inferior service from defendant,   -in violation of Sections 201(a) and 201(b) of the Act, but, as discussed above, complainants have  X-  not sustained their burden of proof to demonstrate this allegation.WE yOW%-ԍ See paras. 812 and 1517, supra. W Moreover, defendant   reasonably responds that it purchased an ongoing reseller business at the office center that   serviced complainants, and assigned particular staff to service the reseller customers. " 0E,-(-(ZZ"   =Complainants present no evidence that the resellers were offered services different from those   Loffered defendant's nonreseller customers, or that the services offered out of the office center  X-in question could be distinguished from services offered out of defendant's other office centers.dF yOK-ԍ Answer and CrossComplaint, Millhofer Affidavit at para. 5.d  X-  22. ` ` Finally complainants do not demonstrate a violation of the Commission's resale   <policy. That policy, first enunciated in 1976, declared that certain restrictions on resale are unjust   xand unreasonable under Section 201(b) of the Act and unreasonably discriminatory under Section  X_-  202(a) of the Act.G_X yOh -  ԍ Regulatory Policies Concerning Resale and Shared Use of Common Carrier Service and Facilities, 60 FCC  {O0 -  ,2d 261 (1976), recon. 62 FCC 2d 588 (1977), aff'd sub nom., American Telephone and Telegraph Co. V. FCC, 572  yO -  xF. 2d 12 (2nd Cir. 1978), cert. denied, 439 U.S. 875 (1978); see also Regulatory Practices Concerning Resale and  yO -  [Shared Use of Common Carrier Domestic Switched Network Services, 83 FCC 2d 167 (1980), aff'd sub nom.,  yO -  ;Southern Pacific Communications Company v. FCC, 683 F.2d 232 (D.C. Cir. 1982); and MCI Telecommunications  yOR-Corporation, 81 FCC 2d 568, 573 (1980). Complainants allege defendant restricted the quality and speed of service   provided to complainants. For the reasons we explained above, however, complainants have not  X1-  \sustained their burden of proof to demonstrate that defendant engaged in such practices.VH1 yO-ԍ See paras. 812 and 1517, supra.V  X -Therefore, complainants' claim that defendant violated the Commission's resale policy fails.I  b  yO--  ԍ Complainants request that the Commission issue an order directing defendant to offer complainants intraLATA   service at rates equal to those it offers retail customers having equal volumes of usage. Complaint at 1112.   Complainants have not sustained their burden of proof on issues of discrimination under the Act; therefore, we do not need to address the question of whether we have the jurisdiction to order the requested relief.  X -  ` ` D. Section 203(c) Issues é Operating Without A Tariff  X -  X -  {23.` `  Contentions of the parties. Complainants contend that defendant provided service   to complainants' customers without having an underlying tariff for the service on file with the  X-  Commission.JXJ  yO-  ԍ Complainants' Reply Brief at 57, 37. Section 203(c) provides in pertinent part that "[n]o carrier . . . shall   engage or participate in such communication unless schedules have been filed and published in accordance with the provisions of the is Act and with the regulations made thereunder. . . ." 47 U.S.C.  203(c). As a result, complainants state, defendant is in violation of statute and   Commission policy, and defendant cannot charge complainants for the service; hence,  Xb-  lcomplainants do not owe defendant for the service.3Kbj yO}"-ԍ Id. 3  Defendant did not reply directly to   complainants' allegation, because complainants first posed this argument regarding the apparent  X4-absence of a tariff in their final pleading, a reply brief. pp    X-  24. ` ` Decision . We will not consider this argument, which was first introduced in a" K,-(-(ZZ "  X-  [reply brief. Causes of action must be stated in a complaint.AL yOy-ԍ 47 C.F.R.  1.721(b).A If a new cause of action emerges   during discovery, the complainant should move to amend the complaint. These rules are  X-  <necessary to give defendants adequate notice of allegations being presented against them.MXX yO-  -ԍ See generally, Amendment of Rules Governing Procedures To Be Followed Where Formal Complaints Are  yO-  Filed Against Common Carriers, Notice of Proposed Rulemaking, 2 FCC Rcd 90 (1987), Report and Order, 3 FCC Rcd 1806 (1988), Report and Order, 8 FCC Rcd 2614 (1993). We   note, however, that a purchaser of telecommunications services is not absolved from paying for  X-services rendered solely because the services furnished were not properly tariffed.Nx yO -ԍ New Valley Corporation v. Pacific Bell, 8 FCC Rcd 8126, 8127 (Com. Car. Bur. 1993).  X-   Xv-` ` E. Defendant's CrossComplaint pp  X_-` `  XH-  325. ` `  Contentions of the parties. Defendant alleges in its crosscomplaint that   complainants owe defendant $654,014.31, plus interest and fees, for services rendered but for   which complainants never paid. Defendant also questions complainants' tariff status and the  X -  zpropriety of defendant's continuing to serve as a common carrier.MO  yO-ԍ Answer and CrossComplaint at 1213.M C  omplainants assert the  X -Commission lacks jurisdiction under the Act to consider defendant's crosscomplaint.HP  yO5-ԍ Answer to CrossComplaint at 3.H  X -  }26. ` ` Decision. We dismiss defendant's crosscomplaint for failure to state a cause of  X -  Maction under Section 208 of the Act.<Q (  yO-ԍ 47 U.S.C.  208.< Sections 206209 of the Act are not intended to allow   carriers to use the Commission as a means of collecting allegedly unpaid charges from  Xy-  {customers.\RXy  yO-  ;ԍ American Sharecom v. The Mountain States Telephone and Telegraph Company and Pacific Northwest Bell,  yO-  8 FCC Rcd 6727 at para. 12 (1993); C.R. Communications Corporation v. Century Telephone of Wisconsin, Inc, 8 FCC Rcd 7334, at para. 14 (1993).\ Similarly, complainants' tariff status and its practices are not in issue in this   -proceeding. We decline, therefore, defendant's suggestion of a hearing to examine complainants' practices.  X-  IV. CONCLUSION AND ORDERING CLAUSES  X-lU   X-  27. ` ` Complainants have failed to allege and prove sufficient facts to demonstrate that   defendant has violated Sections 201(a), 201(b), 202(a), 203(c) of the Act, or the Commission's   general policy on resellers. Complainants allege that the level of service defendant provided   violated Sections 201(a) and 201(b). We have determined, however, that complainants' affidavits" R,-(-(ZZ"   in support of their contentions were effectively rebutted by defendant's affidavits, and we found   <the documentary evidence unpersuasive. Although we considered all of complainants' evidence,   we also found much of it was submitted in an untimely manner. Complainants also allege   idefendant engaged in discriminatory practices that violated Sections 201(b) and 202(a) of the Act,   and the Commission's resale policy. We determined, however, that complainants did not sustain   their burden of proving that defendant made unjust or unreasonable classifications, or made   Lunreasonable discriminations in charges, practices, classifications, facilities or services for like   communications services, or exercised unreasonable prejudice or disadvantage against any persons   yor class of persons. Finally, we dismiss defendant's crosscomplaint for failure to state a cause   of action pursuant to the Act, and we decline defendant's suggestion of a hearing to examine complainants' practices.  X -  B28. ` ` Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 4(j), 201, 202, 203 and   208 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), 201, 202, 203   >and 208, and the authority delegated in Section 0.291 of the Commission's rules, 47 C.F.R.    0.291, that the abovecaptioned complaint filed by America's Choice Communications, Inc., and LinqUp America (Los Angeles) IS DENIED.  Xb-29. ` ` IT IS FURTHER ORDERED that the defendant's crosscomplaint IS DISMISSED WITH PREJUDICE for failure to state a cause of action under Section 208 of the Act.  X-  30. ` ` IT IS FURTHER ORDERED that the abovecaptioned complaint IS DISMISSED WITH PREJUDICE and this proceeding IS TERMINATED.  ` `  hh,VFEDERAL COMMUNICATIONS COMMISSION ` `  hh,V  ` `  hh,VKurt A. Schroeder ` `  hh,VChief, Formal Complaints and ` `  hh,VInvestigations Branch ` `  hh,VEnforcement Division ` `  hh,VCommon Carrier Bureau