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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) BLACK RADIO NETWORK, INC. and ) NEWS TRANSMISSION SERVICES, INC., ) ) Complainants, ) v. ) ) NEW YORK TELEPHONE COMPANY, and ) File No. E-94-33 AT&T CORP., ) File No. E-94-34 ) Defendants. ) MEMORANDUM OPINION AND ORDER Adopted: September 5, 1997; Released: September 9, 1997 By the Acting Deputy Chief, Common Carrier Bureau: I. INTRODUCTION 1. Before us are complaints filed by Black Radio Network, Inc. ("Black Radio") and News Transmission Services Inc. ("NTS") (together referred to as "Complainants") against New York Telephone Company ("NYT") and AT&T Corp. ("AT&T") (together referred to as "Defendants"). Complainants claim that Defendants violated Sections 201(b) and 202(a) of the Communications Act of 1934, as amended, ("Act") when NYT failed to collect revenues owed to it by AT&T for the interstate transmission of calls that terminate on NYT's Mass Announcement Network Service ("MAS"), a pay-per-call information service. Complainants ask the Commission to: (1) direct NYT to account to its general body of ratepayers for all monies it should have collected from AT&T for calls placed by AT&T customers to NYT's 976 numbers; (2) order NYT to cease and desist from alleged preferential treatment of AT&T in billing and collecting MAS revenues; and (3) order the reinstatement of an interstate MAS provision into NYNEX Tariff F.C.C. No. 1 or, alternatively, order NYT to block interstate transmissions to Complainants' 976 MAS numbers and direct AT&T to cease completing interstate calls to NYT's 976 numbers. For the reasons discussed below, we deny the complaint. II. BAC KGROUND 2. Complainants provide "976" information services in the State of New York in conjunction with NYT's MAS tariffs. Pursuant to NY PSC Tariff 900, Section 13, NYT "bills and collects from each calling party" $.36 for each completed intrastate call placed to a subscribing ISP's MAS number. NYT, in turn, is required to remit $.12 of the amount collected for each such call to the subscribing ISP. Through December 30, 1991, the $.36 MAS charge was referenced in the NYNEX interstate access tariff, NYNEX Tariff F.C.C. No. 1 ("Tariff 1"). The record reflects, however, that AT&T refused to pay NYT's MAS charges on the grounds that AT&T was not the customer for the MAS calls. AT&T states that it paid all legitimate terminating access charges which NYT billed it for completion of interstate 976 MAS calls, but refused to pay the charges billed for the MAS announcement itself. AT&T maintains that the MAS announcement charges should be paid by the end users who actually placed calls to the 976 MAS numbers. Further, AT&T states that the surcharge was not for access, which the Commission's rules define as "services and facilities provided for the origination or termination of any interstate . . . telecommunications." Instead, the surcharge was for the provision of the intrastate MAS recorded announcement to the calling party. 3. On November 21, 1991, AT&T and NYT entered into a Settlement and Release Agreement which, inter alia, required NYT to remove from its interstate and intrastate carrier access tariffs any provision which referenced non-access charges or surcharges imposed on IXCs for calls to NYT's 976 MAS network. On November 25, 1991, NYNEX filed a proposed revision to Tariff 1 to eliminate the reference to the intrastate MAS payment provision. NYT stated that the revision was required because the Commission's rules did not permit the imposition of the MAS charge or the cross-referencing of a state tariff without the Commission's prior approval, which NYT had not obtained. NYT further stated that several other IXCs had also challenged the interstate MAS charge on the grounds that NYNEX had not obtained prior approval from the Commission. The Commission's Common Carrier Bureau ("Bureau") allowed the tariff revision eliminating the interstate MAS charge to become effective on December 31, 1991. 4. On February 29, 1992, the Complainants filed an informal complaint with the Bureau's Enforcement Division pursuant to Sections 1.711-1.718 of the Commission's rules. Although styled as a complaint against NYT and AT&T, the Complainants, in effect, challenged the deletion of the MAS payment provision from the NYNEX federal tariff on the grounds that NYT had failed to provide cost information to support the revision in violation of Sections 61.38 and 61.49 of the Commission's rules. On June 26, 1992, the Enforcement Division closed-out the informal complaint by notifying the Complainants that it was not prepared to take further action concerning allegations in the complaint. Complainants were advised, however, that they could file a formal complaint pursuant to Section 1.718 of the Commission's rules if they wished to pursue claims that NYT and AT&T violated the Act or the Commission's requirements in connection with the collection and remittance of MAS revenues. On February 2, 1993, the Bureau's Enforcement Division denied, as untimely, Complainants' subsequent Emergency Petition for Reconsideration ("Petition") of the staff's ruling closing out their informal complaint. On January 3, 1994, Complainants initiated these proceedings with the filing of their formal complaints against NYT and AT&T. III. CONT ENTIONS AND DISCUSSION A. Section 415 5. Contentions: First, we address the threshold issue of whether these complaints are barred by the statute of limitations contained in Section 415(b) of the Act, which provides that "[a]ll complaints against carriers for the recovery of damages not based on overcharges shall be filed with the Commission within two years from the time the cause of action accrues, and not after...." Defendants argue that because any obligation to remit the revenues that Defendants allegedly failed to remit to ISPs, including the Complainants, was deleted from NYNEX Tariff 1 effective December 31, 1991, any claim regarding the non-remitted revenues for the period prior to December 31, 1991, had to be filed with the Commission no later than December 30, 1993. Defendants contend that because the Complainants did not file their claims with the Commission until January 3, 1994, the complaints must be dismissed as untimely. 6. In reply, Complainants maintain their complaints are not time-barred because they do not seek damages as claimed by the defendants. Apart from their request for reinstatement of the interstate MAS tariff provision and the related alternative request for injunctive relief, Complainants state that they are seeking an accounting on behalf of NYT's general body of interstate ratepayers for all monies that NYT should have collected from AT&T for calls to 976 numbers prior to December 31, 1991, the date the tariff revision removing the interstate MAS payment obligation became effective. 7. Discussion: Section 415 of the Act serves as a procedural and substantive bar to the Commission's consideration of a complaint against a common carrier for the recovery of damages in certain instances. The statute is not discretionary and the lapse of time beyond the limitations period not only bars the remedy but eliminates any liability. The Commission and the courts have strictly construed Section 415 and exceptions to its application have been confined to narrow circumstances. 8. Section 415(b) provides that complaints seeking the recovery of damages not based on overcharges must be filed within two years from the time the cause of action accrues and not thereafter, unless certain conditions specified in Section 415(d), which are not applicable here, are met. It is clear in this case, however, that the Complainants do not seek damages within the meaning of Section 415(b). Instead, Complainants request, in addition to certain injunctive relief, that the Commission invoke its general authority over rate making matters under Section 204(a)(1) of the Act to require NYT to account to its general body of interstate ratepayers for all MAS revenues that allegedly should have been collected from AT&T pursuant to NYNEX Tariff 1 but were not. Although we need not decide whether the relief that Complainants seek is appropriate in the context of a Section 208 complaint proceeding, given our conclusions about the merits of their complaints in the paragraphs that follow, Section 415(b) does not pose a jurisdictional bar to our consideration of the Complainants' request. Therefore, the defendants' motion to dismiss is denied. B. Section 202(a) 9. Contentions: Complainants make two principal claims under Section 202(a) of the Act. First, Complainants contend that for the period beginning sometime in 1984 until December 30, 1991, NYT failed to collect from AT&T MAS charges for the completion of interstate calls to MAS numbers as required under NYNEX Tariff 1, while continuing to seek and obtain payment of such charges from other IXCs. The Complainants cite to a September 1991 NYT "Audit Report on Billing for Entertainment Services - Mass Announcement", which Complainants argue shows that NYT failed to collect approximately $36 million owed to it by AT&T. To remedy what they claim was unreasonably discriminatory conduct resulting from NYT's selective enforcement of its tariff, Complainants seek an order directing NYT to account to its general body of interstate ratepayers for all monies that it should have collected from AT&T for calls to 976 numbers prior to December 31, 1991, but which it failed to collect. Second, Complainants maintain that NYT, after December 31, 1991, has continued to treat AT&T preferentially with regard to MAS charges, thereby subjecting other IXCs to undue discrimination and disadvantage. Complainants assert that despite removal of the interstate MAS tariff provision, NYT has continued to charge IXCs other than AT&T for the termination of calls to NYT's 976 numbers. 10. In response, AT&T maintains that it was never obligated to pay NYT for the MAS charges as Complainants claim because it was at no time a customer of NYT's 976 MAS service. According to AT&T, the end-users who actually placed the calls to the 976 MAS numbers were responsible for the MAS charges. Additionally, AT&T cites to the Settlement Agreement it entered into with NYT in November 1991 as proof that NYT did in fact attempt to collect MAS payments from AT&T for the period the interstate tariff provision was in effect and that AT&T at that time challenged the validity of the MAS charges. For its part, NYT denies that it discriminated among IXCs in connection with the collection and remittance of MAS charges either before or after removing MAS from NYNEX Tariff F.C.C. No. 1. 11. Discussion: We find that the Complainants have failed to allege sufficient facts to establish a claim of unlawful discrimination within the meaning of Section 202(a) of the Act. Section 202(a) only prohibits unlawful discrimination in connection with interstate common carrier services. We find that MAS was never an interstate service because it has always been an offering contained only in NYT's intrastate tariff. While prior to December 30, 1991, NYNEX's interstate tariff made a reference to the MAS provision, the rates, terms, and conditions for MAS have always solely been contained in NYT's intrastate tariff. Accordingly, there is no service on which to make a finding of discrimination under Section 202(a) of the Act. 12. Even if there had been an interstate offering, Complainants provide no credible evidence of unreasonable discrimination. Applicable decisions establish a three-prong test for determining whether a Section 202(a) violation has occurred. First, the Commission must determine whether the services at issue are like one another. Second, the Commission must determine whether there is a disparate pricing or treatment between the like services. Third, if disparate pricing or treatment is found to exist, the Commission must decide whether the disparity is justified and, therefore, not unreasonable. A complaint alleging that a carrier has engaged in unlawful discrimination within the meaning of Section 202(a) of the Act must make a prima facie showing that the carrier has discriminated in connection with a "like communications" service or has given an "advantage or preference" to a person or group of persons in connectionwith such service. Once discrimination for like services is established, the burden shifts to the defendant carrier to show that the discrimination is not unreasonable. 13. Complainants provide no credible evidence to support a finding that NYT treated AT&T differently than any other IXC with regard to assessment of MAS charges for interstate calls completed to its network, either before or after the 1991 tariff revision. Contrary to Complainants' claims that NYT failed to assess and collect MAS payments from AT&T, the record reflects that NYT actively billed and sought payment of the MAS charges from AT&T for the interLATA calls AT&T completed to 976 numbers prior to the 1991 tariff revision. Complainants' reliance on the November 21, 1991, Settlement Agreement to show preferential treatment of AT&T is unavailing. On its face, the Settlement Agreement reflects NYT's dispute with AT&T over the legality of the assessment of MAS charges for interstate calls completed over AT&T's network, a dispute that NYT apparently had with other IXCs as well. To resolve the dispute, NYT agreed to remove from its federal and state tariffs any and all language which might impose non-access charges or surcharges on IXCs, including AT&T, for calls to NYT's 976 MAS network in return for certain payments by AT&T. In the absence of information indicating that NYT refused to make similar or other reasonable arrangements with IXCs other than AT&T, we find no basis in the record for a Section 202(a) discrimination claim against NYT for the period the interstate MAS tariff provision remained in effect. 14. Similarly, the Complainants have provided no evidence to support their claim that following the removal of the reference to the intrastate MAS tariff provision from its FCC tariff, NYT sought to collect MAS revenues from some IXCs, but not AT&T. NYT has denied these allegations, and in the absence of evidence to the contrary, the Complainants have failed to meet their burden of demonstrating discriminatory treatment. In fact, if NYT did attempt to collect these surcharges from other IXCs, it would be in violation of its interstate access charge tariff. C. Section 201(b) 15. Contentions: The Complainants' principal claim under Section 201(b) is directed at NYT's alleged failure to assess and collect charges from AT&T for interstate calls delivered to 976 numbers after December 30, 1991, the date the interstate access tariff revision became effective. According to Complainants, NYT could earn millions of dollars per year by reinstating the interstate MAS charge, the revenues from which would benefit interstate ratepayers generally in the form of reduced revenue requirements for other interstate services. Complainants maintain that AT&T is unjustly enriched by NYT's current practice because it can provide its interstate customers access to the MAS service at no cost to AT&T. Complainants contend that ISPs, whose services generate traffic for the IXC's interstate transmission of calls that terminate at the MAS network, incur significant costs and expenses in providing the information service to AT&T customers and other interstate callers. Complainants argue that NYT should be required to reinstate the interstate MAS payment provision requiring IXCs, including AT&T, to pay $.36 or some other amount for each call completed by an IXC's customer to a 976 number, with NYT also being required to forward $.12 of the amount collected for each such call to the ISP associated with the 976 numbers. Alternatively, Complainants argue that NYT should be ordered to block the completion of all interstate calls to 976 numbers, and that AT&T should be directed to cease completing interstate calls to NYT's 976 numbers. 16. AT&T describes the Complainants' allegations of unjust enrichment after December 31, 1991, as "frivolous," arguing that there is no plausible basis under which AT&T could be liable for charges that were admittedly removed from NYT's tariff. AT&T states that the "law could not be clearer that the provisions of a carrier's tariff are controlling as to a customer's liability for payment of charges." As for the Complainants' claim that NYT should be required to block AT&T's access to 976 numbers, AT&T states that the Bureau previously found it unlawful for a LEC to block terminating access to an interexchange carrier on the basis of the LEC's inability to collect the information portion of a charge. With regard to the claim that AT&T should be required to block 976 calls, AT&T stated that it was blocking all intrastate alls to 976 numbers in order to comply with a NY PSC order that it block all such calls or pay intrastate MAS tariff charges on calls it delivers to 976 MAS numbers. 17. NYT does not specifically address the Complainants' Section 201(b) allegations beyond general denials in its answer and assertions in its motion to dismiss that the complaints are untimely under the Commission's rules and the statute of limitations contained in Section 415 of the Act. With regard to the Complainants' contention that NYT should be required to block interstate 976 calls, NYT states the NY PSC was currently (March 1994) reviewing a ruling by a NY PSC administrative law judge that IXCs should be required to complete intrastate intraLATA and interLATA calls to NYT's 976 MAS. NYT adds that it does not have the technical capability to identify or block interstate IXC 976 MAS calls while completing intrastate IXC 976 calls. 18. Discussion: In the absence of a federal tariff provision authorizing NYT to impose and collect charges from IXCs directing interstate traffic to NYT's MAS, we find no basis in the record for finding a Section 201(b) violation for NYT's failure to assess and collect such charges from AT&T after December 31, 1991. Section 201(b) requires that interstate services be just and reasonable and the MAS service at issue is solely an intrastate service. Nor do the Complainants' claims of unjust enrichment levied against AT&T provide any reasonable basis for a prospective ruling requiring NYT to reinstate the provision in its interstate tariff referring to the intrastate MAS charge, especially in the context of this Section 208 complaint proceeding. 19 Similarly, the Complainants have failed to provide any plausible basis for an order directing NYT to block interstate transmission to Complainants' MAS numbers. As AT&T correctly points out, the Bureau has previously held that a local exchange carrier, such as NYT, may not deny access to an IXC because the local exchange carrier is unable to collect a charge that relates, not to the transmission of the interstate call, but to an intrastate service provided by the local exchange carrier's subscriber/customer at the terminating end. Moreover, while we note that AT&T has represented, without challenge from Complainants, that it voluntarily began blocking interstate calls to NYT's 976 MAS numbers in conjunction with an order by the NY PSC requiring it to either block completion of intrastate calls to NYT's MAS numbers or pay NYT for such completed calls, Complainants have articulated no legal or factual basis for an order from this Commission requiring AT&T to block the completion of calls by its interstate customers to NYT's MAS numbers. IV. CONCLUSION 20. In view of the foregoing, we conclude that Section 415 of the Act does not pose a bar to our consideration of the Complainants' claims. We further conclude, however, that Complainants Black Radio Network and News Transmission Services, have not met their burden of showing that AT&T and New York Telephone violated Sections 201(b) and 202(a) of the Act in connection with interstate calls that terminate on NYT's MAS Announcement Service. V. ORDER ING CLAUSES 21. Accordingly, IT IS ORDERED, pursuant to Sections 4(i) and 208 of the Communications Act of 1934, 47 U.S.C.  154(i) and 208, and under the authority delegated in Sections 0.91 and 0.291 of the rules, 47 C.F.R.  0.91 and 0.291, that the complaints filed by Black Radio Network, Inc. and News Transmission Services, Inc. ARE DENIED. 22. IT IS FURTHER ORDERED that AT&T's Motion to Dismiss filed on April 15, 1994 and New York Telephone's Motion to Dismiss filed on March 21, 1994 ARE DENIED in part and otherwise DISMISSED as moot. FEDERAL COMMUNICATIONS COMMISSION John B. Muleta Acting Deputy Chief, Common Carrier Bureau