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X* w Federal Communications Commission`)(#2DA 971826  yxdddy  X  +FBefore the w Federal Communications Commission  X*Washington, D.C. 20554 ă  Xv*HIRIM COMMUNICATIONS, INC.,W) ` `  hh,W)  XH*` `  Complainant,hh,W) ` `  hh,W)  X *` `  v.hh,W) File No. E9618 ` `  hh,W)  X *MCI TELECOMMUNICATIONShh,W)  X * CORPORATION, hh,W) ` `  hh,W)  X *` `  Defendant.hh,W) ` `  hh,W)  XK*  MEMORANDUM OPINION AND ORDER ă  X*` ` Adopted: August 25, 1997;WReleased: August 25, 1997  X* By the Deputy Chief, Common Carrier Bureau:  X|*M% I. INTRODUCTION ă  1. This Memorandum Opinion and Order addresses a complaint filed by HiRim  vCommunications, Inc. ("HiRim") against MCI Telecommunications Corporation ("MCI"),  X * v^pursuant to Section 208 of the Communications Act of 1934, as amended (the "Act").X % yO* #X\  P6G;ɓP#э47 U.S.C.  208. Section 208 provides for the filing of a complaint with the Commission by "[a]ny person . . . complaining of anything done or omitted to be done by any common carrier subject to this Act, in contravention of the provisions thereof."  HiRim  valleges that MCI unlawfully billed HiRim over a fourmonth "relevant period" for calls that were  X* vuncompleted, interrupted, or rang busy, in violation of Section 201(b) of the Act,% yO$* <#X\  P6G;ɓP#э47 U.S.C.  201(b). Section 201(b) requires that all charges, practices, classifications and regulations for common carrier service be just and reasonable. and MCI's  X* vinternational tariff filed with the Commission pursuant to Section 203(a)@% yO'* ԍX 47 U.S.C.  203(a). Section 203(a), in pertinent part, requires common carriers to file tariffs showing their charges, practices, classifications and services, with the Commission. (# of the Act.>X% yO* ԍXHiRim also alleges that MCI violated Commission policy, rules and orders. But HiRim has not identified  which policies, rules, orders were so violated. Nor has HiRim provided legal support for these claims. Complaint at 2.(#> HiRim",**qqH "  vPseeks an order declaring MCI to be liable under Section 201(b) for engaging in billing practices  vthat are not just and reasonable, and seeks to establish the precise amount of its damages through  X* vfiling of a supplemental complaintt {Ok*#X\  P6G;ɓP#эHiRim Brief at 10; HiRim Reply Brief at 2; Complaint at 3. pursuant to Section 1.722(b) of the Commission's rules.Rzt yO*ԍX 47 C.F.R.  1.722(b).(#R For the reasons discussed below, we deny HiRim's complaint.  X*g' II. BACKGROUND ă  X_* Z  2.` ` Complainant HiRim is a reseller of interexchange and international  XH* vftelecommunications services.H t {O*#X\  P6G;ɓP#эBrief at 2; Complaint at 1.ą MCI is a provider of domestic interstate and international  X1* vservices.p1t {O~*#X\  P6G;ɓP#эAnswer at 1.p HiRim purchased domestic interexchange and international telecommunications  v"services, also referred to as "switched" and "switchless" products, from MCI, and resold them to  vits customers pursuant to a carrier agreement entered into on or about May 25, 1995 (the "1995  X * vTagreement"). . t {O*#X\  P6G;ɓP#эHiRim Brief at 23.ć All of HiRim's customer traffic using MCI's "switched" product was routed  vPthrough HiRim's own switch and the customers were billed based upon call records produced  X * vby HiRim's own switch. t {O/*#X\  P6G;ɓP#эId. at 2. In contrast, HiRim's customer traffic that used MCI's "switchless"  vproduct was routed through MCI's switch, and the customers were billed based upon the call  X*records that MCI provided to HiRim. R t {O*#X\  P6G;ɓP#эId. at 3.  Xb* Z 3.` ` According to HiRim, sometime in late 1995, HiRim discovered apparent  vdiscrepancies in MCI's bills for switched international telephone calls, and HiRim informed MCI  X4* vabout the problem.G 4t {O"*ԍXId at 4.(#G The fact that during the period covered by the complaint HiRim  vzcomplained to MCI that it was being billed for uncompleted, interrupted, and rang busy calls, is  X* vundisputed.^ vt yO-&*ԍXComplainant's Exhibit 7; Answer at 3.(#^ According to MCI, in order to address HiRim's concerns, MCI needed" ,))qqt "  X* vbsupporting documentation from HiRim, but such documentation was not provided.Et yOy*ԍXAnswer at 3.(#E Upon investigating MCI's invoices to HiRim for international telephone calls, and  vcomplaints from HiRim customers, HiRim identified what it considered to be instances of over X* vbilling for such calls on each invoice.BXt {O*ԍXId.(#B The disputed calls totalled more than eight million  vminutes for international long distance service. MCI did not provide HiRim with credits for any  X*of the disputed calls.Bt {O( *ԍXId.(#B  X_** III. DISCUSSION ă  X1* Z 4.` `  HiRim's Allegations.  HiRim alleges that after the parties started operating under  vthe 1995 agreement, HiRim was billed over a fourmonth period (September through December  vZ1995), for 396,000 calls that were uncompleted, interrupted, or which rang busy, and that HiRim  X * vcomplained to MCI about the billing for such calls. |t {O*#X\  P6G;ɓP#эHiRim Brief at 1, 34; Complaint at 2. HiRim claims that it lost revenue,  X * vcustomers, and agents due to these billings.s t {O*#X\  P6G;ɓP#эComplaint at 2.s HiRim also claims that it provided documentation  X *to MCI of the disputed billings. t yO*#X\  P6G;ɓP#эHiRim Brief at 3; HiRim Reply at 1.  X* Z |5.` ` HiRim contends that the standard practice in the telephone industry is that a caller  Xy* vcannot be billed for making a call that is unanswered.My0 t yOZ*ԍXHiRim Brief at 46.(#M In support thereof, HiRim cites to its  vtown standard Switch Termination Agreement that it employed in 1994, which states that  XK* vunanswered calls will not be billed,BK t yO*ԍHiRim Exhibit 3.B MCI's faxed correspondence with HiRim containing terms v2andconditions language that "the inbound portion of the call only applies if the call is  X* vcompleted",EP t yO"*ԍHiRim Exhibits 45.E and MCI's letter to HiRim that "pursuant to MCI's [FCC] Tariff No. 1 MCI does  X* vnot charge any of its customers for calls which are unanswered".Bt yO$*ԍHiRim Exhibit 6.B HiRim states that pursuant  X* vto Sections 153(h), 203(a) and 203(c) of the Communications Act,[pt yO'*ԍ47 U.S.C.  153(h), 203(a), 203(c).[ MCI is required not only to  vbfile a tariff showing all charges for each of its communications services, but also to provide",))qq"  vtelecommunications services in strict adherence to the tariff provisions that have been filed with  X* vthe FCC.It yOb*ԍHiRim Brief at 6.I Citing Carter v. American Tel. & Tel. Co.,Xt {O*ԍ365 F.2d 486, 496 (5th Cir. 1966), cert denied, 385 U.S. 1008, 87 S.Ct. 714, 17 L.Ed. 2d 546 (1967). HiRim states further that court decisions  vbhave made it clear that violating a filed tariff is the same as violating the law; it is not merely  X* v"a breach of contract.:t {OX*ԍId.: HiRim asserts that "MCI's conduct in billing for incomplete calls violates  vthe Communications Act because the Act explicitly requires that carriers' charges be  X* vreasonable."Q|t {O *ԍSee 47 U.S.C.  201(b).Q HiRim further asserts that "[b]y MCI's own admission, it is not reasonable to  v<charge a customer for a call that was not answered or was otherwise interrupted before  Xa*completion. Therefore, MCI's conduct violates Section 203(b)."Eat yO *ԍHiRim Brief at 7. E  X3* Z 6.` `  MCI's Response. MCI concedes that HiRim complained to MCI about inaccurate  X * vbilling. t yOk*#X\  P6G;ɓP##X\  P6G;ɓP#эMCI Reply Brief at 23; Answer at 3. It asserts, however, that despite its requests, HiRim failed to provide MCI with  X * v<documentation to support its claims. . t yO*#X\  P6G;ɓP##X\  P6G;ɓP#эAnswer at 3. MCI also asserts that "at all times relevant to this  vBcomplaint and in all its dealings with HiRim, [MCI] billed HiRim in complete compliance with  X * v its tariff and the Communications Act."@ t {OF*ԍId. at 5.@ MCI denies any wrongdoing and disputes the  vprobability that HiRim was billed for calls that were unanswered, interrupted, or which rang  X * vbusy.! P t yO*#X\  P6G;ɓP#эMCI Reply Brief at 23; Answer at 2, 3, 5. MCI states that its traffic agreements with foreign entities that interconnect their networks  X* vto MCI's network require "Answer Supervision,""t yO#* <#X\  P6G;ɓP#эAnswer supervision is the term carriers use to describe the signal that the called station emits to tell the ############## {O*Xcarriers' billing equipment that a call has been answered and billing should commence. Petition for (#(# {O * tAdoption of a New Section 68.314(h) of the Commission's Rules, 4 FCC Rcd 4577, 4585 n.3 (1989). The  utility of answer supervision is that it ensures that billable calls are properly registered and deters toll  {OG"*avoidance and fraud. Id at 4578. (# and, therefore, the likelihood of any billing  X{* vfor uncompleted calls is highly remote.#{t yO$*#X\  P6G;ɓP##X\  P6G;ɓP#эMCI Reply Brief at 3; Answer at 34. MCI states that, notwithstanding HiRim's failure to  v^provide any substantiating documentation, MCI conducted an investigation and determined that"d&#,))qqr"  X* vthere was no problem in its network or the networks of the international entities0$t yOy* #X\  P6G;ɓP#эMCI acknowledges, however, that in some countries a single line is shared by both a facsimile machine and  a telephone set. Such a device operates by first "answering" the incoming call, thereby initiating billing,  Jthen attempting to detect the presence of facsimile tones, and if facsimile tones are not detected then the  tcall is finally routed to a telephone handset. Since the device provides "offhook" response, a call will be billed even though it is not answered by any individual or even when the facsimile transmission is  {Oa*interrupted. Answer at 4. 0 with whom  X* vzMCI interconnects in order to provide international service to its customers.%Bt {O*#X\  P6G;ɓP##X\  P6G;ɓP#эId. at 3. MCI claims that  v&it subsequently terminated its agreement with HiRim for nonpayment of charges for services  X* vprovided by MCI.&t {O@ *#X\  P6G;ɓP##X\  P6G;ɓP#эId. at 5; MCI Reply Brief at 4. MCI asserts that pursuant to its tariff FCC No. 1, Section B7.01 HiRim's  X* vresponsibility for payment of all charges for services furnished by MCI was absolute.?'f t yO*ԍAnswer at 45.?  v$According to MCI, HiRim owed MCI in excess of $21 million at the time of service  Xv*discontinuance.(v t yO*#X\  P6G;ɓP##X\  P6G;ɓP#эMCI Reply Brief at 4.Ħ  XH* Z r7.` ` MCI alleges that HiRim's complaint is frivolously filed to compel MCI to settle  vwith it for less than the $21 million that HiRim allegedly owes MCI, and to foreclose MCI from  X * vbringing a collection action against HiRim.@) t yOQ*ԍMCI Brief at 2.@ MCI also alleges that HiRim's "conduct"  X * vconstitutes an abuse of the Commission's formal complaint processes.\* t {O*ԍId. at 24; MCI's Reply Brief at 46.\ MCI contends that Hi vRim has failed to make the requisite evidentiary showing because it has not provided evidence  X * vthat supports HiRim's claims brought pursuant to Section 208 of the Communications Act.C+ t yO.*ԍ47 U.S.C  208.C  X * vMCI also contends that HiRim has not met its threshold burden of establishing a prima facie  X *case that MCI violated the Act.H, 8t yO *ԍMCI Reply Brief at 14.H  X{* Z 8.` `  Discussion The gravamen of the dispute before the Commission is whether MCI  vengaged in billing practices that violate Sections 201(b) and 203(b) of the Act. In pertinent part,  vBSection 201(b) requires that "[a]ll charges, practices, classifications, and regulations for and in  vconnection with . . . communication service, shall be just and reasonable, and any such charge,  vpractice, classification, or regulation that is unjust or unreasonable is . . . declared to be",,))qq"  X* vlunlawful[.]"G-t yOy*ԍ47 U.S.C.  201(b).G In pertinent part, Section 203(b) provides that "[n]o change shall be made in the  vPcharges . . . which have been so filed and published except after . . . notice to the Commission  vand to the public, which shall be published in such form and contain such information as the  X* vFCommission may by regulations prescribe."J.Xt yO*ԍ47 U.S.C.  203(b)(1).J To prove that MCI violated the provisions of  vSections 201(b) and 203(b), HiRim must establish that MCI engaged in billing for uncompleted,  vinterrupted, and rang busy calls. The keystone for determining whether MCI did, in fact, bill for  vTuncompleted, interrupted, or rangbusy calls is the information furnished by the parties. As  vdiscussed below, we find that HiRim has not met its burden of proof in establishing that MCI  vunlawfully billed HiRim for 396,000 calls that were uncompleted, interrupted, or which rang busy.  X * Z v9.` ` It is well established that, in a Section 208 formal complaint proceeding, the  vcomplainant has the burden of establishing a violation of the Act or of the Commission's rules  X * vor orders.L/ t {On* #X\  P6G;ɓP#эSee AT&T v. Northwestern Bell Telephone Co., 5 FCC Rcd, 143, 147 (1990); see also Amendment of Rules  {O8* Concerning Procedures to be Followed When Formal Complaints are Filed Against Common Carriers, 8  {O* ~FCC Rcd 2614, 261617 (1993); Connecticut Office of Consumer Counsel v. AT&T Communications, 4 FCC  {O* Rcd 8130, 8133 (1989), aff'd sub nom. Connecticut Office of Consumer Counsel v. FCC, 915 F.2d 75 (2d  {O*Cir. 1990), cert. denied, 111 S.Ct. 1310 (1991). See generally 47 C.F.R.  1.720 1.735.L Under the Commission's general pleading and format requirements, formal  X * vcomplaints against common carriers must, inter alia, contain a complete statement of facts which,  X * v*if true, are sufficient to constitute a violation of the Act, Commission rules or order.0 t {O*#X\  P6G;ɓP##X\  P6G;ɓP#эSee 47 C.F.R.  1.720(b), 1.721(a)(5).ĸ The  vCommission's rules provide that facts must be supported by affidavits or other relevant  X{* vzdocumentation.1{4 t {O`*#X\  P6G;ɓP##X\  P6G;ɓP#эSee 47 C.F.R.  1.720(c).ij The rules also require complainants to describe "fully and clearly the specific  vact or thing complained of, together with such facts as are necessary to give a full understanding  XM*of the matter, including relevant legal and documentary support."|2M t {O*#X\  P6G;ɓP#э47 C.F.R.  1.721(b).|  X* Z 10.` ` To support its complaint, HiRim attached a variety of exhibits to its brief,  vincluding: the 1995 agreement itself; MCI's verified answer; HiRim's standard switch  vtermination agreement; MCI's faxed memo outlining terms and conditions for wholesale debit  vcard; one page each of the deposition of HiRim's VicePresident Wayne Godbout and a MCI  vperson; copy of the international portion of a November 1995 invoice; and correspondence  vbetween the parties. HiRim also attached as an Exhibit to its reply brief what is purportedly a  vpage from a telephone bill. Collectively, however, the exhibits simply demonstrate the parties'  vcontractual obligations, HiRim's complaints to MCI, and MCI's requests to HiRim to furnish"~X 2,))qq|"  X* v&substantiating documentation.3t yOy* #X\  P6G;ɓP#эWe also note that in none of its letters does HiRim challenge MCI's requests with any averment that HiRim has already provided documents to MCI to substantiate its claims. None of the exhibits demonstrates that MCI engaged in billing  X*practices in violation of Section 201(b) or conduct in violation of Section 203(b).4@ t yO* tԍPursuant to Sections 0.457(d), 0.459, and 1.731 of the Commission's rules, 47 C.F.R.  0.457(d), 0.459,  X1.731, MCI filed a request on March 10, 1997 with the Commission for confidential treatment of certain  documents that were attached as exhibits to HiRim's initial brief on the ground that the documents  pcontained commercial and financial proprietary information. The specific documents which were the subject  of MCI's request for confidential treatment were HiRim Exhibits No. 1, 3, 4, 5, and 11. Subsequently,  Non April 25, 1997 MCI submitted its redacted version of Exhibits 1, 3, 4, 5, and 11. Our analysis of  Exhibits 1, 3, 4, 5, and 11 in this proceeding is based upon our review of the redacted versions of these documents. (#Ƶ  X* Z d11.` ` More specifically, Exhibits 1 through 4 merely establish that the parties entered  vinto a carrier agreement and that the terms and conditions did not permit billings for unanswered  vPcalls. Exhibits 5, 9 and 10 are just duplicates of other exhibits that HiRim has submitted. The  vzdepositions, phone bills, and correspondence associated with Exhibits 6, 7, 8, 11, and 1215 do  vnot establish that MCI did, in fact, charge HiRim for calls that were unanswered, interrupted or  vrangbusy. Exhibits 6, and 1215 amply demonstrate that HiRim complained to MCI that it had  vbeen billed for uncompleted, interrupted, or rangbusy calls, and that MCI solicited documented  vinformation that would substantiate HiRim's claim. In Exhibit 7, which is a page of a deposition  vof a MCI personnel, MCI testifies that whereas HiRim had several times raised the issue of MCI  vcharging HiRim for unanswered and intercepted calls and had committed to providing MCI with  vdocuments that would enable MCI to investigate the alleged problem, HiRim did not provide  vMCI with such documents. By contrast in Exhibit 8, which is a page of a deposition of HiRim's  vVicePresident Wayne Godbout, Mr. Godbout testifies that HiRim provided MCI with call  vrecords showing that MCI overbilled HiRim for switched international calls. The only billing  vrecords that HiRim has provided in the instant proceeding, however, are HiRim's invoice bill  vdated November 10, 1995 (Exhibit 11), and a single page from a purported telephone bill of a  v^HiRim customer (Exhibit attached to HiRim's Reply Brief). Without any supporting affidavits  vbor other relevant documentation, neither of these two exhibits establishes anything beyond a  vreflection of charges for calls of short duration. They do not affirmatively prove whether the  vcalls, were unanswered, interrupted, or rang busy. In sum, none of the exhibits demonstrate, or even indicate, that MCI billed HiRim for calls that were unanswered, interrupted, or rangbusy.  X* Z (12.` ` It is uncontroverted that both parties entered into the 1995 agreement pursuant to  vwhich HiRim resold domestic interexchange and international telecommunications services. Nor  vTis it disputed that HiRim complained to MCI that it was being billed for calls that, allegedly,  vwere unanswered, interrupted, or which rang busy. For us to determine that MCI billed HiRim  vfor 396,000 uncompleted, interrupted, and rangbusy calls, HiRim was required to develop and  vvalidate its claim with relevant statements of fact and supporting evidence that such billing  X7* vactually occurred.t57( t {O(*ԍ47 C.F.R.  1.720(b), 1.720(c). hh,(#ht Having reviewed the record in this matter, we conclude that nothing in the"7 5,))qqt "  vrecord establishes that MCI did, in fact, bill HiRim for such calls. Likewise, HiRim did not  vprovide any facts that would support a conclusion that MCI acted inconsistent with the terms of its tariff.  X* Z 13.` ` HiRim contends that MCI's answer acknowledges that it billed HiRim for  X* vzunanswered calls.v6t {O*#X\  P6G;ɓP#эHiRim Brief at 6.v We disagree. MCI's concession that in a small number of cases calls may  Xv* vhave been made to devices that provide "offhook" responsep7vZt {O *#X\  P6G;ɓP#эAnswer at 4.p is not an admission that such calls  v"did, in fact, occur. Even assuming that an uncertain number of calls were made to such devices,  v0that fact alone does not support a conclusion that MCI billed for unanswered calls. Liability must  vZbe based upon factual information, not unsupported assertions that require conjecture and surmise  von our part. We are not convinced that MCI's vague acknowledgment is an adequate substitute  vfor HiRim's obligation to provide both a complete statement of facts that such occurrences did  vtake place and supporting affidavits or other relevant documentation that MCI billed for  vunanswered calls arising out of such occurrences. HiRim has not provided the requisite factual  vTand documentary proof. This conclusion is entirely consistent with the Commission's rules  vrequiring that formal complaints must contain complete statements of fact supported by other  X*relevant documentation.8t {O-*#X\  P6G;ɓP#čSee 47 C.F.R.  1.720(b), 1.720(c), 1.721(a)(5).  Xb* Z l14.` ` Likewise, we are not persuaded that the halfminute calls reflected in the  vNovember 1995 invoice (HiRim Exhibit 11) are necessarily or "obviously" calls that were not  X4* vanswered.94~t {Oc*#X\  P6G;ɓP#эSee HiRim Brief at 9.Ā Standing alone, the short duration of the calls is not dispositive, or even compelling  vproof that the calls were not answered. The limited, conclusory facts alleged by HiRim do not  vsupport a finding that these calls were billed unlawfully within the meaning of Section 201(b),  vPor were billed inconsistently with MCI's tariff, in violation of Section 203(b). Similarly, absent  vthe submission of affidavits, sworn statements, or other corroborating documents, we are not  vpersuaded by HiRim's assertion that the page of a telephone bill (attached as an exhibit to Hi vRim's reply brief) relates to calls that "were [either] not answered or were answered by the PTT  X* vl[Postal, Telegraph and Telephone];:Xt yOT!* ԍPTTs are agencies in charge of telecommunication services in some countries, operating the public   Xtelecommunications network, and setting standards and policies under direct supervision of the national government. (#; recording stating [that] no lines were available to complete  X|* v~the call.";|0 t {O]%*#X\  P6G;ɓP#эSee HiRim Reply Brief at 2.Č Pursuant to the Commission's rules, HiRim was required to submit affidavits or  Xe* vrelevant documentation to support its claims.<e t {O'*#X\  P6G;ɓP#čSee 47 C.F.R.  1.720(c), 1.721(a)(5). HiRim has not done so and has, therefore, failed"eT <,))qq\ " to carry its burden of proof.  X* Z 15.` ` We find unpersuasive HiRim's suggestion that its failure to carry its burden in this  vcase is attributable to HiRim's inability to independently verify failures in MCI's equipment or  X* vBprocedures.Y=t {O*ԍSee HiRim Brief at 8.Y We note that HiRim represented that it lost revenue, customers, and agents due  X* vto the alleged unlawful billings.g>Zt {O*ԍSee Complaint at 2.` (#g We also note that HiRim represented that it is aware of  vwitnesses who have personally witnessed incomplete or interrupted international calls appearing  X_* von MCI bills.j?_t {O *ԍSee HiRim Brief at 9.` (#j Hence, from HiRim's own assertions, HiRim could have obtained testimony  vthrough affidavits, or other sworn statements from aggrieved customers, witnesses, and agents  vwho allegedly complained to HiRim, that may have corroborated HiRim's claims. HiRim  X * v0neglected to do so.@@ ~t yOI* ԍWe also note that the parties had the opportunity to acquire information from each other through discovery.   XHiRim's interrogatories were untimely. On December 19, 1996, Commission staff ruled on the parties'  Tmotions to compel at a status conference after affording the parties the time and opportunity to present and  defend their positions on these motions. HiRim failed to articulate any valid reason or excuse for the  untimeliness of its interrogatories. The staff denied HiRim's motion to compel on the ground that Hi Rim's interrogatories were untimely under  1.729(a), 47 C.F.R.  1.729(a), and noted that HiRim had made no request or showing under Section 1.730(c), 47 C.F.R.  1.730(c), for other discovery. (#  Neither HiRim's limited and conclusory statements of fact, nor the exhibits  vthat it submitted validate HiRim's claim that MCI billed HiRim for 396,000 calls that were  X *uncompleted, interrupted, or rang busy. pp   X *z V. PROCEDURAL MATTERS ă  X* Z   16.` ` HiRim filed a Motion to Strike Separate Defense on the ground that the pleading  vdid not constitute an avoidance or affirmative defense under the Commission's rules or under  Xb* vRule 8(c) of the Federal Rules of Civil Procedure.Ab t {O*#X\  P6G;ɓP##X\  P6G;ɓP#эMotion to Strike Separate Defense at 1.IJ MCI opposed the Motion to Strike on the  XK* v^ground that the motion itself is frivolous.BKt {O!*#X\  P6G;ɓP##X\  P6G;ɓP#эOpposition to Motion to Strike at 1.į HiRim's motion is made moot by our ruling on the merits. Accordingly, we dismiss the motion.  X* Z 17.` ` MCI filed a Motion to Dismiss on the grounds that HiRim's complaint is "utterly  v~without substantive merit and was filed for the sole purpose of employing the Commission's  vFformal complaint processes in an attempt to force MCI to settle its account with HiRim by  vaccepting less than the amounts due and owing for services furnished to and used by HiRim in" B,))qq"  X* vproviding its telecommunications services to the public."Ct {Oy*#X\  P6G;ɓP##X\  P6G;ɓP#эMCI Motion to Dismiss at 1.Ĭ HiRim opposed the motion with the  vassertion that the complaint meets the standards articulated in Sections 1.720 and 1.721 of the  X* vCommission's rules,QDZt yO*ԍ47 C.F.R.  1.720, 1.721.Q for filing a formal complaint, and denied that the complaint was filed to  X* v&subvert or abuse the Commission's processes.Et {OV*#X\  P6G;ɓP##X\  P6G;ɓP#эHiRim Opposition to MCI's Motion to Dismiss at 17.Ŀ MCI's motion is made moot by our ruling on the merits. Accordingly, we dismiss the motion.  Xv* Z 18.` ` Further, HiRim requested that we address the issue of liability and sought to  X_* vestablish the precise amount of its damages through filing of a supplemental complaintF_|t {O *#X\  P6G;ɓP##X\  P6G;ɓP#эHiRim Brief at 10; HiRim Reply Brief at 2; Complaint at 3. pursuant  XH* vLto Section 1.722(b) of the Commission's rules.IGHt yO*ԍ47 C.F.R.  1.722(b).I Section 1.722(b) provides, in pertinent part, that  vF"[d]amages may be awarded, . . . , upon a supplemental complaint based upon a finding [of  X * v8liability] of the Commission in the original proceeding.":H t {Oi*ԍId.: Having found that HiRim did not  vmeet its burden of proof regarding its allegation that MCI violated the Act, Commission rules and orders, a separate proceeding on damages issues is not warranted.  X *}) VI. CONCLUSION ă  X* Z  19.` ` We conclude that HiRim has failed to prove its allegations that MCI has engaged  vin billing practices for common carrier services that violate Sections 201(b) and 203(b) of the Act.  X4*  VII. ORDERING CLAUSES ă  X* Z 20.` ` Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 4(j), 201(b), 203(b) and  v*208 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), 201(b),  v203(b), 208, and the authority delegated by Sections 0.91 and 0.291 of the Commission's rules,  v47 C.F.R.  0.91, 0.291, that the abovecaptioned complaint filed by HiRim Communications, Inc. IS DENIED.  X|* Z `21.` ` IT IS FURTHER ORDERED that HiRim's establishment of a separate proceeding through filing of a supplemental complaint to establish precise amount of damages IS DENIED.  X7* Z 22.` ` IT IS FURTHER ORDERED that HiRim's Motion to Strike Separate Defense IS DISMISSED."  0 H,))qq"Ԍ X*ԙ23.` ` IT IS FURTHER ORDERED that MCI's Motion to Dismiss IS DISMISSED.  X*24.` ` IT IS FURTHER ORDERED that this proceeding IS TERMINATED. ` `  hh,WFEDERAL COMMUNICATIONS COMMISSION  X *` `  hh,WMary Beth Richards  X * ` `  hh,W #WK Deputy  #WK Chief, Common Carrier Bureau