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A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#o\  PC DXP#a8DocumentgDocument Style StyleXX` `  ` 2p kkqa4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  2 v) fa7DocumentgDocument Style StyleyXX` ` (#` a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph NumbersC @` A. ` ` (#` a3DocumentgDocument Style Style B b  ?  1.  2' ?   _a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h a6Right ParRight-Aligned Paragraph Numbers h` `  hh#@$(a) hh#((# 2Y)a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p Tech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala1DocumentgDocument Style Style\s0  zN8F I. ׃  2ga5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   2 ?a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . 2O$t?3e#BibliogrphyBibliography:X (# Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:d<d<CCoodCCddCoCddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYd X-Ok X-#o\  PC DXP##o\  PC DXP#x  Federal Communications Commission`(#DA 98600 ă  yxdddy O#o\  PC DXP#   1. 1. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)Њ*2 Before the x Federal Communications Commission  X-Washington, D.C. 20554 ă  X-R#XP\  P6Q DXP#) HIRIM COMMUNICATIONS, R) INCORPORATED,R) R) xComplainant,R) R) xR)  X -x` ` v.R)hppFile No. E9614 R) MCI TELECOMMUNICATIONSR) CORPORATION,R) R) xDefendant.R) R)  XK-|  MEMORANDUM OPINION AND ORDER TP X` hp x (#%'0*,.8135@8:ԍxSee HiRim Brief at 4. HiRim did not provide any specific citations to MCI's tariff or allege a violation of MCI Tariff FCC No. 1 in its Complaint. Rather, HiRim included this assertion in its Brief. HiRim Brief at 4." and (4) the parties' agreement for resale of interexchange carrier  xservices. HiRim seeks a Commission order declaring that it is entitled to recover damages from  x>MCI for lost revenue and reserves its right to file a supplemental complaint to establish the  X- xprecise amount of damages it alleges it is owed from MCI.o 6! {Op-ԍxHiRim Complaint at 5; see also 47 C.F.R.  1.722(b).o For the reasons discussed below,  xwe find in favor of HiRim on its Section 201(b) allegation relating to the unauthorized change of its customers, and deny the remainder of its complaint.  XH- II. BACKGROUND ă  X - ` x2.` ` During a period ranging from February 1994 to May 1995, MCI and HiRim  x>entered into a series of agreements (collectively, "the Agreement") that provided for MCI's  X - xprovision of long distance telephone service to HiRim for resale to consumers.k 6! yO3-  ԍxHiRim Brief at 1; MCI Answer at 3. Pursuant to Sections 0.457(d), 0.459, and 1.731 of the Commission's  xrules, 47 C.F.R.  0.457(d), 0.459, 1.731, MCI filed a request on October 14, 1997 with the Commission for  xconfidential treatment of the Agreement, which was attached as an exhibit to HiRim's initial brief, on the ground  xthat it contained commercial and financial proprietary information. Concurrent with its request, MCI filed its redacted version of the Agreement on the same date.k The Agreement  xyindicates that HiRim was to originate its interstate traffic via HiRim's own carrier identification  X - xcode (CIC). F6! {O-  /ԍxHiRim Brief, Exhibit 2; see also MCI Reply Brief, Exhibit 1. A carrier identification code (CIC), in the  x;instant context, refers to a code that identifies call traffic as belonging to a certain carrier, in this instance, HiRim.  xAccording to HiRim, in order to load HiRim's customers on to the underlying network, MCI must instruct LECs  xto direct HiRim designated calls through MCI's long distance network. HiRim Brief at 2; HiRim Exhibit 2 at 47.  {O"-MCI does not dispute this assertion. See generally MCI Brief. The Agreement also required HiRim to provide to MCI, in writing, a report of all" 0*%%ZZ "  xzHiRim customer automatic number identifications (ANIs) that should be included on MCI's  X-underlying network. 6! {Ob-ԍxHiRim Brief, Exhibit 2; see also MCI Reply Brief, Exhibit 1.  X- ` ox3.` ` In or around early April, 1995, HiRim sent a series of orders to MCI to load Hi X- xRim's CIC code into MCI's network system.] Z6! yO-ԍxHiRim Brief at 2; MCI Reply Brief at 23. ] Both parties agree that in April of 1995, HiRim  X- xinitially ordered that MCI be the underlying carrier for all HiRim customers nationwide. \6! {O( -  >ԍxHiRim Brief at 2; Exhibit 2 at 47; MCI Brief at 23. See also Deposition Testimony of James Parker,  xidated July 24, 1996 at HiRim Brief, Exhibit 2 and MCI Reply Brief, Exhibit 1. Although both parties rely upon  {O -the same exhibit, they differ in its interpretation, see infra 11. Hi x>Rim maintains that subsequent to this order, it requested that MCI not include in this order  X_- xcustomers in the Phoenix, Arizona Local Access and Transport Area (LATA), _6! yO-  ԍxA Local Access and Transport Area (LATA) is a contiguous geographic area as defined by the Act, 47 U.S.C. 153(25). which includes  x!the areas of Flagstaff and Sedona, Arizona. MCI maintains that a "HiRim employee . . .  X1-contradicted HiRim's earlier order to load its CIC for the whole country." 1f 6! yOH-ԍxHiRim Brief at 23; HiRim Exhibit 2 at 47; MCI Reply Brief at 3; MCI Exhibit 1.  X - ` x4.` ` Both parties agree that in April of 1995, MCI placed HiRim's customers in the  X - xPhoenix, Arizona LATA on to MCI's underlying network.r 6! yO-ԍxHiRim Formal Complaint at 4; MCI Answer at 3; HiRim Brief at 3.r Both parties further agree that MCI  X -billed all the HiRim customers in the Phoenix LATA as if they were MCI customers. 6! yO -  NԍxHiRim Brief at 2; HiRim Exhibit 2 at 47; MCI Answer at 4; MCI Reply Brief at 3; MCI Reply Brief  {O-Exhibit 1. We note that MCI asserts that this billing was unintentional. See infra 8.  X - ` Bx5.` ` On December 28, 1995, HiRim filed the instant complaint against MCI alleging  xthat MCI violated Section 201 of the Act, Section 64.1100 and 64.1150 of the Commission's  xrules, related Commission orders, and the parties' Agreement by changing the long distance  xservice for over two hundred HiRim customers in the Phoenix, Arizona LATA without proper  XK- xauthorization.]K6! {O!-ԍxSee generally HiRim Formal Complaint.] Following resolution of procedural issues not relevant to the substance of the"Kr0*%%ZZ"  X- xcomplaint, MCI filed an answer on April 3, 1996, denying HiRim's allegations.Z6! {Oy-  ԍxSee Letter Ruling from Catherine W. Seidel, Staff Attorney, Enforcement Division, FCC, to Patrick D.  x;Crocker, Counsel for HiRim, and Donald J. Elardo, MCI, dated March 5, 1996 (In which Commission staff directed MCI to file an answer to the complaint within thirty days of a status conference held to resolve procedural issues). After  x=discovery, HiRim and MCI filed briefs on March 20, 1997 and reply briefs on April 1, 1997 and April 10, 1997, respectively.  X- III. DISCUSSION ă  X-  Xv- A.xSection 201(b)  XH-x 1. Contentions of the Parties  X - ` x6.` ` HiRim claims that after MCI placed HiRim's Phoenix, Arizona LATA customers  X - xjon MCI's network, HiRim notified MCI that MCI should not have loaded the Phoenix LATA.C 6! yO-ԍxHiRim Brief at 2.C  x-According to HiRim, it chose to provide service for its Phoenix LATA through means other than  X - xMCI's network.: z6! {O-ԍxId.: HiRim further alleges that even after it informed MCI that HiRim's Phoenix  xLATA customers had been incorrectly included on MCI's network, MCI continued to direct that  X - xtraffic to MCI's network.B 6! {Od-ԍxId. at 23.B According to HiRim, this activity continued for a period of  X- xapproximately six months.6! {O-  kԍxId. at 3. MCI disputes this contention, asserting that the period was for approximately two months. See MCI Answer at 4. HiRim argues that MCI's continued practice of directing HiRim  xtraffic through MCI's network, in contravention of what HiRim claims it ordered, is evidence  Xb- x=that MCI changed the PIC of HiRim customers without authorization.Eb 6! yO -ԍxHiRim Brief at 34.E HiRim contends that  XK-MCI's actions were unreasonable, and thus violate Section 201(b) of the Act.ZK 6! yO-ԍxHiRim Brief at 4; HiRim Complaint at 2.Z  X- ` x7.` ` Both parties rely extensively upon the deposition testimony of James Parker, an  X- xjMCI Employee ("Deposition"); however, they differ in their interpretations of this testimony.6! yO#-  ԍxDeposition Testimony of James Parker, Executive Manager, Carrier Account Sales, MCI, dated July 24, 1996, HiRim Brief Exhibit 2; MCI Reply Brief Exhibit 1."p0*%%ZZ("  X- xHiRim contends, based upon the Deposition, that although it ordered MCI not to move HiRim's  X- xPhoenix LATA customers to MCI's underlying network, MCI nonetheless did so.6! yOb-  ԍxSpecifically, HiRim alleges that, "[d]espite (HiRim's) withdrawal of authority, MCI caused US West to redirect HiRim's CIC from HiRim's feature groups to MCI's feature groups." HiRim Brief at 3. MCI,  x<conversely, argues that the Deposition "demonstrates that it was HiRim's conduct which caused  X-any confusion that may have existed concerning the billing of HiRim's customers."F 6! yO-ԍxMCI Reply Brief at 3.F  X- ` x8.` ` MCI's answer maintains that based upon the parties' Agreement, HiRim was  xrequired to provide sufficient information to MCI to permit MCI to furnish network service for  X_- xHiRim.|_6! {O -ԍxMCI Answer at 4; see also HiRim Exhibit 1, Agreement, Sections 3, 5.| MCI contends that, in accord with HiRim's instructions, MCI loaded HiRim's CIC  xcode into MCI's nationwide network to handle all originating interstate traffic generated by all  X1- xHiRim customers.H1B6! yO$-ԍxMCI Reply Brief at 23.H The problem, according to MCI, was caused by a contradictory order from  X - xHiRim. 6! yO-  MԍxSpecifically, MCI alleges that "HiRim employee Deb Garwick contradicted HiRim's earlier order to load its CIC for the whole country." MCI Reply Brief at 3; MCI Reply Brief Exhibit 1, at 47. MCI asserts that "HiRim submitted service orders to MCI which contained  X - xincomplete information" and "were mishandled by a serving local exchange carrier (LEC)."A * 6! yO-ԍxMCI Answer at 4.A  xMCI admits, however, that the service orders, "in some instances, were not properly installed by  X - xMCI.": 6! {O@-ԍxId.: MCI claims that it did not knowingly bill HiRim's customers for interstate traffic that  xshould have been routed to HiRim and this error persisted for only a twomonth period, not six  X - x.months as maintained by HiRim.: L 6! {O-ԍxId.: Upon discovery of the billing problem, MCI asserts that it  X- x\made attempts to resolve the matter with HiRim.!6! {O-ԍxSee MCI Reply Brief at 2; MCI Reply Brief Exhibit 2; see also MCI Answer at 4. MCI alleges that it requested, but never  xreceived, information necessary to ascertain the number and identity of customers whose traffic  Xb- xwas mistakenly routed through MCI's network and were billed by MCI."bp6! {O"-  jԍxId. We note that HiRim provides no evidence in rebuttal to MCI's assertions and supporting documentation that HiRim failed to respond to MCI's effort to rectify the mistake and resolve the parties' dispute. MCI contends that Hi xRim failed to present any evidence or supporting documentation that MCI unlawfully converted"K"0*%%ZZ"  X- xHiRim customers.X#6! yOy-ԍxMCI Brief at 2; MCI Reply Brief at 23.X MCI further argues that HiRim has failed to meet the evidentiary burden  X-required to substantiate a Section 208 complaint.$^X6! {O- xԍ MCI Brief at 2; MCI Reply Brief at 34, (citing Connecticut Office of Consumer Counsel v. AT&T  {O- xCommunications, 4 FCC Rcd 8130, 8133 (1989), aff'd sub nom. Connecticut Office of Consumer Counsel v. FCC,  {O-915 F.2d 75 (2d Cir. 1990), cert. denied, 111 S. Ct. 1310 (1991).  See generally 47 C.F.R.  1.720-1.735.  X- ` x9.` ` Finally, MCI claims that HiRim abused the Commission's formal complaint  X- x[process in an effort to force MCI to settle claims unrelated to the instant matter.Z%~6! yO -ԍxMCI Brief at 24; MCI Reply Brief at 47.Z MCI alleges  xthat HiRim is engaging in a pattern of switching between different IXCs without paying bills  Xv- xMincurred to each successive IXC.:&v6! {O5-ԍxId.: In support of its allegation, MCI claims that HiRim has  xfailed to substantiate its allegations against MCI, and cites a prior Commission complaint  XH- xproceeding in which HiRim filed an action against IXC Carrier Group (IXCCG).'\H6! yO-  /ԍxFile No. E9612. HiRim filed its Complaint against IXCCG on November 11, 1995. On June 7, 1996,  {Oa- xthe Commission released an Order granting HiRim's request to dismiss the complaint with prejudice. See HiRim  {O+-Communications, Inc v. IXC Carrier Group, 11 FCC Rcd 6679 (1996). Without  xelaboration, MCI alleges that the complaint filed against IXCCG serves as an example of a  x\proceeding in which HiRim utilized the Commission's complaint process as a dilatory tactic  X -designed to force settlement, rather than as a method to resolve a legitimate dispute.V( 6! yOx-ԍxMCI Brief at 3; MCI Reply Brief at 4.V  X -x 2. Decision  X - ` x 10.` ` Section 201(b) of the Act provides that "[a]ll . . . practices . . . for and in  X- xconnection with [a] communication service, shall be just and reasonable."G)T 6! yO-ԍx47 U.S.C.  201(b).G HiRim alleges that  Xy- xiMCI's actions were unreasonable and violated Section 201(b).>*Zy6! {O -  >ԍxSee generally HiRim Complaint; HiRim Brief; HiRim Reply Brief. Although HiRim does not provide  xka specific argument regarding violations of Section 201(b), the arguments presented address allegations of unreasonable practices.> Although both parties agree that  xHiRim initially ordered MCI to be the underlying network provider for HiRim's customers on  xa nationwide basis, they disagree as to the impact and meaning of the subsequent request from"K*0*%%ZZ"  X- xHiRim.+6! {Oy-  ԍxSee HiRim Brief at 2; MCI Reply Brief at 23; HiRim Brief Exhibit 2 at 4251; MCI Reply Brief Exhibit 1 at 1. The subsequent request from HiRim to MCI was communicated via electronic mail  X- xmessages.w,"6! yO-ԍxHiRim Brief Exhibit 2 at 4251; MCI Reply Brief Exhibit 1 at 1.w HiRim claims that it clearly directed MCI not to include HiRim customers located  X- xLin the Phoenix LATA as part of HiRim's service agreement.\-6! yO5-ԍxHiRim Complaint at 34; HiRim Brief at 2.\ MCI, conversely, maintains that  xHiRim's subsequent request was ambiguous, and because it contradicted the earlier order, MCI  xdid not act unreasonably in following the original instructions to include the Phoenix LATA  X-customers.m.B6! {O -ԍxSee HiRim Brief Exhibit 2; MCI Reply Brief Exhibit 1.m  X_- ` Ax 11.` ` The deposition of James Parker, an employee of MCI, provides the only evidence  xon the record regarding HiRim's request with respect to its customers in the Phoenix LATA and  X1- xMCI's response.M/16! {O-ԍxSee supra 7.M The deposition describes how HiRim initially gave, and MCI received,  X - xinstructions for MCI to provide the underlying network for HiRim on a nationwide basis.0 f 6! yO1-  ԍxHiRim Complaint at 34; MCI Answer at 3; HiRim Brief at 2; HiRim Brief, Exhibit 2 at 4549; MCI Reply Brief, Exhibit 1 at 4748. The  xdeposition also indicates that at a point subsequent to the first instruction, HiRim gave MCI  X - xinstructions not to include HiRim customers in the Phoenix LATA.w1 6! yO[-ԍxHiRim Brief, Exhibit 2 at 4749; MCI Reply Brief, Exhibit 1 at 4749.w In the deposition, Mr.  xParker states, "[m]y testimony would be that Deb Garwick instructed us to load the CIC code  xeverywhere, and then later instructed us not to load the Phoenix area, so we complied with both  X - xKof her orders."2 N 6! yO-  ԍxHiRim Brief, Exhibit 2 at 48; MCI Reply Brief, Exhibit 1 at 48. Deb Garwick is identified by the deponent as a HiRim employee. In response to a question of what MCI did after it received the instructions from  xHiRim, Mr. Parker states that, "[w]e sent out orders based on Deb Garwick's instructions to load  xeverywhere, and then when we received instructions from Deb Garwick not to load Phoenix, we  Xb- ximplemented orders and tried to coordinate with the LEC to answer that request."q3b6! yO!-ԍxHiRim Brief, Exhibit 2 at 49; MCI Reply Brief, Exhibit 1 at 49.q In response"b630*%%ZZ"  xto the question, "Was that second step before or after the CIC code got loaded?", MCI's  X-employee responded, "I don't recall.":46! {Ob-ԍxId.:  X- ` x 12.` ` MCI argues that its actions were unintentional, that it only billed customers for  X- xya twomonth period,A5Z6! yO-ԍxMCI Answer at 4.A and that it made attempts to resolve the matter with HiRim.66! {O? -ԍxSee MCI Reply Brief at 2; MCI Reply Brief Exhibit 2; see also MCI Answer at 4. Mr. Parker  xacknowledged that "(t)he second request was to change that [initial] order and not load Phoenix,  xNwhich we then began to coordinate with the LEC to see that [the subsequent] order was  X_- x=implemented."v7_|6! yO -ԍxHiRim Brief, Exhibit 2 at 4950; MCI Reply Brief Exhibit 1 at 4950.v The second order, however, was apparently not carried out properly by MCI.  xIrrespective of how it happened, the ultimate result was that HiRim customers were served and  xbilled by MCI as if they were MCI customers, despite the fact that MCI was not their designated  X - xprimary interexchange carrier.8X 6! yO-  ԍxHiRim Complaint at 3; HiRim Brief at 3; HiRim Brief, Exhibit 2 at 5459; MCI verified Answer at 23.  xWe note that nothing in the record illustrates that MCI was acting as HiRim's collection agent for these revenues. On the contrary, the record supports the conclusion that MCI billed these customers and retained the funds. Mr. Parker acknowledged in his deposition that MCI was aware  X - xthat it was actually receiving call revenues from HiRim customers in the Phoenix LATA.R9 , 6! yO-ԍxHiRim Brief, Exhibit 2 at 5960.R  xSpecifically, Mr. Parker identified his own electronic mail message which states, "(t)he loss of  xtraffic and therefore revenue is serious enough. However, HiRim just signed a three year, 36  xmillion SCA with us. The prospect of telling them that we have lost their traffic, can't seem to  x.find the problem, and perhaps they shouldn't use our product going forward due to this is not  X- xsomething I intend to do.":Z 6! {O-  lԍxId. We note that HiRim did not cite to this provision of the deposition in its pleadings. HiRim did,  xhowever, provide the deposition in its entirety as an exhibit to its Initial Brief. MCI neither disputed nor addressed this information in its pleadings. Neither the deposition nor the parties define the term "SCA". Thus, Mr. Parker's deposition provides credible evidence that MCI  xwas fully aware that it had switched the service of HiRim customers in the Phoenix LATA  xwithout the customers' authorization. Mr. Parker's deposition also indicates that MCI delayed in notifying HiRim of the problem and taking corrective action. "4:0*%%ZZH"Ԍ X- ` x 13.` ` In its Answer, MCI further alleges that HiRim's customers "in law and in fact are  X- x'authorized users' of MCI service within the meaning of MCI Tariff FCC No. 1."d;Z6! yOb-  ԍxMCI Answer at 4. HiRim does not directly dispute this contention, but rather argues that the revenue  xgenerated from these customers was unlawfully redirected from HiRim to MCI, without the knowledge of the Hi {O-Rim customer. See HiRim Brief at 4.d Although not  xexplicitly argued in its brief, MCI's appears to contend that as the facilities based provider of the  x long distance service, the customers at issue were, in fact, customers of MCI. As an initial  xmatter, MCI's argument ignores the fact that HiRim did not intend for the Phoenix LATA  xcustomers to receive service via MCI's underlying network. Therefore, MCI's argument is not  xapplicable. Moreover, the Commission recently clarified the role of a switchless reseller in the  X_- xPICselection process, finding that the PICselection rules and orders clearly contemplate that a  XH- xLswitchless reseller such as HiRim may serve as a customer's actual PIC.<H6! {O -  ԍxSee WATS International v. Group Long Distance, 12 FCC Rcd 1743, 1752 (1997); see also Policies and  {O - xRules Concerning Long Distance Carriers, Order on Reconsideration, 8 FCC Rcd 3215, 3218 (1993) (PICChange  {Ow- xRecon. Order) (long distance service is also provided by switchless resellers); accord LOA Order, 10 FCC Rcd at  {OA- x;957678. See 47 C.F.R.  64.1150(e)(4) (1995) (any carrier designated as a PIC must be the carrier directly setting  {O - xwthe rates for the subscriber); LOA Order, 10 FCC Rcd at 9575. This 1995 requirement recognizes that resale carriers can be PICs. Therefore, contrary  xto MCI's assertion, the fact that HiRim utilized MCI's underlying network does not transform  xHiRim customers into MCI customers. HiRim obtained signed LOAs from its customers which  X - xLspecified HiRim as the customers' new carrier.= l 6! yO -  \ԍxHiRim Complaint at 3. In response, MCI states that it is without knowledge or information sufficient to form a belief as to the truth of HiRim's allegation. HiRim is the carrier that sets the rates for the  xinterexchange services provided to these customers and HiRim is the IXC with the proximate  X - xbusiness relationship with these customers.}>Z 6! {OJ-  \ԍxSee PICChange Recon. Order, 8 FCC Rcd at 321819 n.40 (discussing why it would be inappropriate for  xLOAs used by switchless resellers to identify the underlying facilitiesbased IXC because switchless resellers, not the underlying IXCs, control the end users' automatic numbering identifiers).} In contrast, nothing in the record reveals that MCI  xhad a contractual relationship with HiRim's customers, nor did these customers choose MCI to  X - x[serve as their PIC.? 6! {O>-ԍxSee generally HiRim Formal Complaint; HiRim Brief; MCI Answer; MCI Reply Brief. The consumers were customers of HiRim, the entity with whom they had  xcontracted for service. Thus, HiRim was the designated long distance carrier for the customers  xat issue. Because the customers never chose MCI as their PIC, MCI was not entitled to receive revenue from these customers. "K x?0*%%ZZI"Ԍ X- ` x 14.` ` MCI's actions resulted in the change of the designated primary interexchange  X- xcarrier for HiRim customers in the Phoenix LATA without the customers' authorization.u@6! yOb-ԍxHiRim Complaint at 3; HiRim Brief at 3; HiRim Reply Brief at 12.u MCI  X- xadmits in its own pleadings that it served and billed HiRim's customers for two months.CAX6! yO-ԍxMCI Answer at 23.C MCI  X- xMhas apparently retained the revenues it received from HiRim's Phoenix LATA customers.B6! {OT-  ԍxSee HiRim Brief, Exhibit 2 at 5960; see also HiRim Brief at 2, HiRim Exhibit 2 at 47; MCI verified Answer at 4, MCI Reply Brief at 3; MCI Reply Brief Exhibit 1.  xzAlthough MCI argues that the PIC changes for HiRim's Phoenix LATA customers were the  xxresult of confusion over loading orders, the fact remains that those customers' PICs were changed  Xv- xlfrom HiRim to MCI.CvB6! {Oi -  ԍxSee HiRim Complaint at 34; HiRim Brief at 23; HiRim Exhibit 2 at 47; MCI Answer at 4; MCI Reply Brief at 23; MCI Exhibit 1. MCI did not receive authorization from the HiRim customers and  xoffered no evidence to suggest that MCI either attempted to gain or received authority before  XH- xmaking the changes.DH6! yO-  >ԍxHiRim Brief at 2; HiRim Exhibit 2 at 4755; MCI Answer at 4; MCI Reply Brief at 3; MCI Reply Brief Exhibit 1 at 4750. We conclude that MCI's failure to transfer the customers to HiRim's  x network is an unjust and unreasonable practice. Thus, we find that MCI's actions violated  X -Section 201(b) of the Act.QE 6! {O-ԍxSee 47 U.S.C.  201(b).Q  X -  X -B.xCommission Rules and Orders  X - x1. Contentions of the Parties  Xy- `  x15.` ` In addition to claiming that MCI violated Section 201(b) of the Act, HiRim  xalleges that MCI's changing of the designated carrier of the customers at issue violated Sections  XK- xy64.1100 and 64.1150 of the Commission's rules and related Commission orders.ZFK 6! yO-ԍxHiRim Complaint at 2; HiRim Brief at 4.Z HiRim argues  x<that MCI's continued practice of directing HiRim traffic through MCI's network, in contravention  xof what HiRim claims it ordered, is evidence that MCI changed the PIC of HiRim customers  X-without authorization.EG6! yO#-ԍxHiRim Brief at 34.E " G0*%%ZZ'"Ԍ X- ` x16.` ` In response, although MCI admits that HiRim's service orders, "in some instances,  X- xNwere not properly installed,"GH6! yOb-ԍxMCI Answer at 4.G MCI argues that HiRim failed to present any evidence or  xsupporting documentation that MCI unlawfully converted HiRim customers and that it has not  X-violated the Commission's PICchange rules.XIX6! yO-ԍxMCI Brief at 2; MCI Reply Brief at 23.X  X_-x 2. Decision  X1- ` nx17.` ` Sections 64.1100 and 64.1150 of the Commission's rules address different methods  xby which IXCs may confirm and verify that consumers wish to change their presubscribed long  X - xdistance service.UJ 6! yO-ԍx47 C.F.R.  64.1100, 64.1150.U Section 64.1100 requires IXCs to institute one of four verification procedures  X - xbefore submitting PICchange orders generated by telemarketing.KD x6! yO-  ԍx47 C.F.R  64.1100. The four options are: (1) obtain the consumer's written authorization in a form that  xmeets the requirements of Commission regulations; (2) obtain the consumer's electronic authorization by use of a  xtollfree number established exclusively for that purpose; (3) have the consumer's oral authorization verified by an  xindependent third party; or (4) send an information package, including a prepaid, returnable postcard, within three  xdays of the consumer's request for a PIC change, and wait 14 days before submitting the consumer's order to the  x<LEC, so that the consumer has sufficient time to return the postcard denying, cancelling, or confirming the PIC  {O- x-change order. Id.; see also Policies and Rules Concerning Long Distance Carriers, 7 FCC Rcd 1038, 1045 (PIC  {O-Change Order) (1992). Section 64.1150 governs an  x[IXC's use of written letters of agency (LOAs), prescribing the information an IXC must include  X - xin a LOA, and requiring that the LOA be written in clear and unambiguous language.L\ 6! yO-  Lԍx47 C.F.R.  64.1150. A LOA is a document, signed by a customer, that states that the customer has selected  {O- xZa particular carrier as that customer's primary long distance carrier. See also Allocation Order, 101 FCC 2d 911,  {O-929; LOA Order, 10 FCC Rcd at 9565-66. In the  xinstant case, however, we find no violation of 64.1100 and 64.1150 because HiRim has failed  xto allege facts or provide evidence that: (1) MCI attempted to generate PICchange orders for the  xsubscribers at issue via telemarketing solicitations; or (2) utilized LOAs to receive written  Xb- xauthorization to change the PIC of the particular subscribers.xMb6! {O!-ԍxSee generally HiRim Complaint; HiRim Brief; HiRim Reply Brief.x The facts before us do not  xconcern telemarketing solicitations or written LOAs. Rather, the facts concern MCI's failure to execute properly HiRim's instructions. " :M0*%%ZZ)"Ԍ X- ` x18.` ` Similarly, although HiRim alleges that MCI violated the Commission's orders  x.regarding PICchanges, the cited orders do not address MCI's actions in the instant case. The  x[Commission's orders address an IXC's requirement either to take steps to obtain a signed LOA  xfrom a customer to authorize a PICchange, or to utilize the four verification procedures available  X- xfor telemarketing solicitations.N6! {O-  zԍxSee Allocation Order, 101 FCC 2d 911; Waiver Order, 101 FCC 2d 935; Reconsideration Order, 102 FCC  {O- xx2d 503. The Commission subsequently adopted amendments governing written letters of agency; LOA Order, 10  {O- xFCC Rcd 9560; Inbound Stay Order, 11 FCC Rcd 856; FNPRM and Order on Reconsideration, 12 FCC Rcd 674;  xThe Commission also adopted rules governing confirmation procedures for PICchange orders generated by  {OC - xtelemarketing; PIC Change Verification Order, 7 FCC Rcd 1038 (1992); In the Matter of Policies and Rules  {O - xConcerning Changing Long Distance Carriers, Petitions For Reconsideration and Clarification, 8 FCC Rcd 3215,  {O -3217 (1993) (Order on Reconsideration of the Verification Order). HiRim has not alleged that MCI engaged in telemarketing or  x/submitted LOAs, and as such, we find that the cited Commission orders are not applicable.  xNonetheless, MCI did fail to segregate HiRim's Phoenix LATA customers from other HiRim  X_- xlong distance customers, which resulted in customer's being served by an unauthorized carrier.O_6! {O$-  ԍxSee HiRim Complaint at 34; HiRim Brief at 23; HiRim Exhibit 2 at 47; MCI Answer at 4; MCI Reply Brief at 23; MCI Exhibit 1.  xAs noted above, we consider the failure to transfer the customers to HiRim to be an unjust and  X1-unreasonable practice in violation of Section 201(b) of the Act.  X -C.xMCI Tariff FCC No. 1  X - ` ox19.` ` HiRim alleges that because MCI changed the PIC for HiRim subscribers, MCI  X - xviolated its own tariff, MCI Tariff F.C.C. No. 1.$P n 6! yO-  >ԍxWe note that HiRim's Complaint does not include a claim that MCI violated the provisions of its tariff.  {O-HiRim's first reference to such a violation appears in its initial Brief. See HiRim Brief at 4.$ HiRim does not provide any evidence to  X- x>support this claim.xQ 6! {O -ԍxSee generally HiRim Complaint; HiRim Brief; HiRim Reply Brief.x It is well established that in a formal complaint proceeding pursuant to  Xy- xSection 208 of the Act, the complainant has the burden of proof.aR(yZ 6! {O-  ԍxSee, e.g., Amendment of Rules Concerning Procedures to be Followed When Formal Complaints are Filed  {ON- xiAgainst Common Carriers, 8 FCC Rcd 2614, 261617 (1993); Connecticut Office of Consumer Counsel v. AT&T  {O - xCommunications, 4 FCC Rcd 8130, 8133 (1989), aff'd sub nom. Connecticut Office of Consumer Counsel v. FCC,  {O -915 F.2d 75 (2d Cir. 1990), cert. denied, 111 S.Ct. 1310 (1991). See generally, 47 C.F.R.  1.7201.735.a For the reasons discussed below, we conclude that HiRim has failed to carry its burden for this allegation.  X4- ` x20.` ` Under the Commission's general pleading and format requirements, formal  X- xZcomplaints against common carriers must, inter alia, contain a complete statement of facts, which" JR0*%%ZZ "  X- xif true, are sufficient to constitute a violation of the Act or a Commission rule or order.hS6! {Oy-ԍxSee 47 C.F.R. 1.720(b), (c); 1.721(a)(5).h The  X- xrules provide that facts must be supported by affidavit or other relevant documentation.:TZ6! {O-ԍxId.: The  xrules require complainants to describe "fully and clearly the specific act or thing complained of,  xtogether with such facts as are necessary to give a full understanding of the matter, including  X-relevant legal and documentary support."IU6! yOA -ԍx47 C.F.R.  1.721(b).I  Xv- ` x21.` ` HiRim failed to provide any evidence, supporting citations to the tariff, or even  x.argument regarding how MCI's actions constitute a violation of the tariff. A finding of liability  xcannot be predicated upon unsupported assertions that require conjecture and hypothesis. HiRim  X1- xhas not provided the requisite factual and documentary proof.nV1|6! {O^-ԍxSee 47 C.F.R.  1.720(b), 1.720(c), 1.721(a)(5).n Pursuant to the Commission's  X - xrules, HiRim was required to submit relevant documentation to support this claim.dW 6! {O-ԍxSee 47 C.F.R.  1.720(c), 1.721(a)(5).d HiRim has not done so and has, therefore, failed to meet its burden of proof with respect to this allegation.  X -  X -D.xAlleged Violation of the Parties Private Agreement  X - ` nx22.` ` HiRim also alleges that MCI violated the parties' Agreement for the resale of MCI  xlong distance services, although HiRim fails to specify which provision of the Agreement MCI  Xy- xviolated.VXy6! {O-  kԍxHiRim Brief at 4; HiRim Brief Exhibit 1; see also HiRim Brief at 1; MCI Answer at 3. A review of the  xAgreement merely establishes that MCI was to provide long distance telephone service to HiRim for resale at certain  xrates depending on various factors, including the total volume of telephone service HiRim purchased from MCI. The  xwAgreement further discusses terms and conditions regarding usage commitments, marketing restrictions, and network service rates.V The Commission, however, is not the proper forum for carriers to request resolution  xof strictly private agreements. The Commission has held that carriers' private disputes which do  x not implicate a violation of the Act, Commission rules, or orders are beyond our regulatory  X4- xyjurisdiction and must be resolved in a court of competent jurisdiction.Y^4R 6! {O7!-  ԍxSee State Street Bank & Trust Co. v. Arrow Communications, Inc., 833 F.Supp 41, 45 (D. Mass. 1993) (in  {O"- x-which the court directly addressed Commission authority to resolve private complaints); Application of John R.  {O"-Kingsbery, 71 FCC 2d 1173 (1979); Transcontinent Television Corp, 44 FCC 2451, 2461 (1961). As HiRim's allegation regarding the Agreement is not properly before the Commission, we decline to address this claim. " xY0*%%ZZ("Ԍ X-t IV. PROCEDURAL MATTERS ă  X- ` x23.` ` On June 17, 1996, MCI filed a Motion to Dismiss HiRim's Complaint, arguing  xthat HiRim's complaint was without substantive merit and "was filed for the sole purpose of employing the Commission's formal complaint process to force MCI to settle its account with  X- xHiRim" for less than amounts due.3Z6! {O-  #X\  P6G;P##X\  P6G;P#эxSee MCI Motion to Dismiss;  see also infra, 9 noting that MCI asserts the identical claims in its Initial brief and Reply brief.3 HiRim filed its opposition to the motion on June 28,  Xv- x1996.[v"6! {OI -#X\  P6G;P##X\  P6G;P#эxHiRim 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  X_-motion.\Z_6! yO -   ԍxWe note that although Commission staff deferred a ruling on MCI's Motion, MCI renewed the substance  {O - xJof its Motion to Dismiss in its Brief and Reply Brief.  See MCI Brief at 24, MCI Reply Brief at 47; see also Letter Ruling from Darius B. Withers to Patrick D. Crocker and J. Carl Wilson, dated February 28, 1997.  X1-k( V. DAMAGES ă  X - ` x24.` ` HiRim requested that the Commission declare that it is entitled to recover  xldamages from MCI equal to the revenue lost for each customer changed to MCI without  X - xauthority.]Z 6! {O\-   ԍxHiRim Brief at 5; HiRim Complaint at 5. See also 47 C.F.R.  1.722(b). Section 1.722(b) provides, in  xpertinent part, that "[d]amages may be awarded . . . upon a supplemental complaint based upon a finding [of liability] of the Commission in the original proceeding." HiRim noted its intent to file a supplemental complaint pursuant to Section 1.722(b)  xLof the Commission's rules to establish the precise amount of damages it alleges it is owed from  X -MCI.p^ 6! {OP-ԍxHiRim Complaint at 5. See also 47 C.F.R.  1.722(b).p  Xy- ` x25.` ` Our finding that MCI's actions violated Section 201(b) of the Act provide the  xparties with a framework to reach a mutually satisfactory settlement of the damages issue.  xConsistent with these findings and conclusions, we hereby direct the parties to engage in good  xZfaith negotiations aimed at resolving issues regarding the amount of damages for a period of sixty  x.days after the release of this order. At the close of the sixtyday period, the parties are further  xdirected to provide the Commission with a joint statement regarding the result of their negotiations. " ^0*%%ZZ"Ԍ X- ` x26.` ` Having found that MCI has violated Section 201(b) of the Act, pursuant to Section  x1.722 of the Commission's rules, HiRim may file a supplemental complaint for damages if such negotiations do not yield a settlement of HiRim's damages claim.  X-| VI. CONCLUSION ă  Xv- ` x27.` ` For the foregoing reasons, we find that MCI's actions violate Section 201(b) of the Communications Act of 1934.  X -  VII. ORDERING CLAUSES ă  X - ` x28.` ` Accordingly, IT IS ORDERED pursuant to Sections 1, 4(i), 4(j), 201(b), 208 of  xthe Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 154(j), 201(b), 208, and  xthe authority delegated under Sections 0.91, and 0.291 of the Commission's rules, 47 C.F.R.   x0.91, 0.291, that the instant complaint filed on March 4, 1996, by HiRim Communications,  xIncorporated against MCI Telecommunications Corporation IS GRANTED TO THE EXTENT INDICATED HEREIN AND IS OTHERWISE DENIED.  XK- ` x29.` ` IT IS FURTHER ORDERED that the parties SHALL ENGAGE in negotiations  xaimed at resolving damages issues and SHALL REPORT to the Common Carrier Bureau's Enforcement Division within a period of sixty (60) days after the release of this Order.  X- ` x30.` ` IT IS FURTHER ORDERED that HiRim Communications, Incorporated MAY  xLFILE a supplemental complaint for damages within sixty (60) days pursuant to Section 1.722(b) of the Commission's rules, 47 C.F.R.  1.722(b). x` `  FEDERAL COMMUNICATIONS COMMISSION x` `  A. Richard Metzger, Jr. x` `  Chief, Common Carrier Bureau