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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C.  20554

In the Matter of      )
     )
GE CAPITAL COMMUNICATIONS SERVICES     )
     CORPORATION,     )
     Complainant,     )
     )
     v.         )     File No. E-96-22
     )
AT&T CORPORATION,     )     
     Defendant. )  

MEMORANDUM OPINION AND ORDER  

     Adopted:  April 29, 1998              Released:  May 1, 1998
     
By the Chief, Common Carrier Bureau:

                             I.  INTRODUCTION

     1.    We have before us a formal complaint filed on February 23, 1996 by GE Capital
Communications Services Corp. ("GECCS") against AT&T Corp. ("AT&T").  The complaint alleges that
AT&T has violated Sections 201(a) and 201(b) of the Communications Act of 1934, as amended (the
"Act"), and the Commission's resale orders and policies by refusing to provide service to GECCS under
AT&T Contract Tariff No. 383 ("CT 383").  AT&T filed, concurrently with its answer, a motion to
dismiss the complaint, based on the statute of limitations in Section 415(b) of the Act.  As discussed more
fully below, we deny both AT&T's motion to dismiss and GECCS's formal complaint.   

                             II.  BACKGROUND  

      2.     GECCS is a common carrier engaged in interstate commerce through the resale of
telecommunications services purchased from AT&T and other facilities-based common carriers.  AT&T
is a common carrier that is engaged in interstate and foreign communications.  Both parties are subject
to the Act and to the Commission's jurisdiction.  

      3.     On August 9, 1993, AT&T filed its Contract Tariff No. 383 with the Commission.  The
new tariff offered a discount on certain AT&T services for intrastate calling, including AT&T
MEGACOM PLUS service with the Integrated Outbound and Inbound Discount Plan ("UNIPLAN")
Option.  As it was originally filed, CT 383 offered two separate volume discounts that were available
simultaneously to qualifying customers.  On August 26, 1993, GECCS submitted to AT&T its timely
written order for service under the new tariff.  GECCS's letter requested that the service be installed by
September 24, 1993 at two telephone numbers, both of which were single residential locations.  By letter
dated September 13, 1993, AT&T accepted GECCS's service request and asked that GECCS complete
an AT&T contract tariff order form. 

      4.     In the meantime, on September 9, 1993, AT&T had filed with the Commission its
Contract Tariff Transmittal No. 632 ("Transmittal 632"), which proposed to amend CT 383 to prevent
customers from receiving the volume discounts concurrently.  GECCS opposed the amendment of CT 383
by filing a petition to reject or, alternatively, to suspend and investigate Transmittal 632.  Ultimately,
on November 16, 1993, AT&T agreed to make both of the discounts in question available to those
customers, including GECCS, that had requested CT 383 service before AT&T revised its tariff.  

      5.     By letter dated November 24, 1993, GECCS submitted a second service request under CT
383, asking that "all future intrastate services provided by AT&T to [GECCS] and its customers be billed
at the rates provided for in Contract Tariff 383."  At the time, GECCS intended to combine the
discounted intrastate CT 383 service with an interstate service, AT&T's Virtual Telecommunications
Network Service, Option 7 ("VTNS"), which GECCS purchased from its parent corporation, General
Electric Corp. ("GE Corp.").  Under the arrangement that GECCS envisioned, the CT 383 service would
have replaced AT&T's Software Defined Network ("SDN") service, the intrastate service that was
routinely available with AT&T's interstate VTNS.  During the months following GECCS's second
service order, the parties engaged in numerous discussions regarding the terms on which CT 383 service
would be available to GECCS.  In the course of these discussions, AT&T informed GECCS that the
different Primary Interexchange Carrier ("PIC") codes over which the two services were routed made it
difficult to install both CT 383 service (carried on PIC code 10288) and VTNS (carried on PIC code
10732) on the same billing telephone numbers ("BTNs").

      6.     During these same discussions, AT&T offered two "workaround" solutions to the technical
problems posed by GECCS's orders.  First, AT&T suggested, GECCS and its resale customers could
maintain, on a dial-1 basis, their VTNS service, which is routed over the 10732 PIC code, and simply dial
the 10288 PIC code in order to gain access to the CT 383 service.  Alternatively, AT&T proposed that
GECCS could arrange for installation of two lines at each of its locations, with one BTN connected to CT
383 service through the 10288 PIC code and the other one connected to VTNS through the 10732 PIC
code.  Thus, the end user would have to choose the appropriate line depending on whether she was
making an intrastate or an interstate call.  GECCS found neither of these alternatives to be acceptable and
continued to request that AT&T install both services on a single line.  Eventually, on July 22, 1994,
AT&T wrote to GECCS, stating that, because of the differing PIC codes associated with the two services,
CT 383 service could not be provisioned on the same line as VTNS.  On February 23, 1996, GECCS
initiated this proceeding by filing its complaint alleging that AT&T had violated Sections 201(a) and
201(b) of the Act and the Commission's policies on resale.  The complaint asked that AT&T be ordered
to pay damages in an amount to be proved in a supplemental complaint.  

                             III.  DISCUSSION

      A.     Motion to Dismiss Based on the Statute of Limitation

      7.     Before reaching the merits of this proceeding, we address AT&T's motion to dismiss
based on Section 415(b), the Act's two-year limitation applicable to certain damage claims.  AT&T
argues that GECCS was aware for more than two years before it filed its complaint on February 23, 1996
that AT&T had refused to provide CT 383 service on the terms that GECCS had requested.  In support
of this argument, AT&T points out that GECCS did not receive service by the date specified in its August
26, 1993 order.  Additionally, AT&T cites certain correspondence between the parties that, according
to AT&T, evinces GECCS's knowledge, before February 23, 1994, that AT&T had declined to provide
the ordered service.  GECCS responds that it was not until AT&T's July 22, 1994 letter -- which
contained a detailed discussion of the conflicting PIC codes and the manner in which they prevented the
execution of GECCS's order -- that AT&T unequivocally refused to provide the CT 383 service jointly
with VTNS.  Up until that point, GECCS contends, the parties remained engaged in discussions that
GECCS reasonably interpreted as attempting to solve the technical impediments to the fulfillment of its
service order.

      8.     Based on the record evidence in this proceeding, we agree with GECCS's position that
Section 415(b) poses no bar to its complaint.  More than two years before GECCS filed its complaint,
AT&T had identified the operational difficulties that made installation of the ordered service problematic;
it appears, however, that the parties continued to attempt to resolve these technical problems until some
point within two years of the date on which GECCS filed its complaint.  Thus, the record indicates that,
as late as May 3, 1994, the parties participated in a conference call during which they discussed
provisioning issues relating to the service orders.  Only by its letter of July 22, 1994 does it appear that
AT&T unequivocally declined to install the CT 383 service on lines also served by VTNS.  As GECCS
points out, under Section 415(b), a cause of action "accrues and the limitations period begins to run only
when the plaintiff discovers, or with due diligence should have discovered, the injury that is the basis for
[its] action."  Although, as AT&T points out, GECCS may assert that its damages for AT&T's allegedly
unreasonable actions began to accrue in November 1993, that claim does not amount to a concession
regarding the date on which GECCS first learned that AT&T refused to provision the service as ordered. 
Accordingly, we deny AT&T's motion to dismiss based on Section 415(b).  

      B.     Reasonableness of AT&T's Refusal to Provision CT 383 Service as
             Ordered

      9.     As noted above, GECCS asserts that AT&T violated Sections 201(a) and 201(b) of the
Act and the Commission's resale policies by unreasonably refusing to provide CT 383 service upon
GECCS's reasonable request.  Thus, GECCS argues:  (1) that, in refusing the requested service, AT&T
failed to "furnish . . . communication service on reasonable request therefor," in violation of Section
201(a); (2) that AT&T's refusal to provide CT 383 service amounted to an "unjust or unreasonable"
practice in violation of Section 201(b); and (3) that, by refusing to provide CT 383 service as requested
by GECCS, AT&T improperly restricted the "unlimited resale of communications services" preferred
under the Commission's resale policies.  The parties agree that, by its letters of August 26 and November
24, 1993, GECCS ordered CT 383 service from AT&T, and that AT&T has not provided the requested
service.  Accordingly, the issues presented for our decision are whether AT&T's refusal to provide the
service as ordered was "unjust or unreasonable" within the meaning of Section 201(b) and whether
AT&T's actions were otherwise not in compliance with the Commission's resale policies.  Given the facts
of this proceeding -- that AT&T declined to provide GECCS's requested service based on claims of
technical infeasibility -- the inquiry under Section 201(b) also will resolve the correlative question of
whether GECCS's CT 383 order amounted to a "reasonable request" for telecommunications service under
Section 201(a).  

      1.     Overview of the Parties' Contentions

      10.    As mentioned above, in declining to provide the service that GECCS ordered, AT&T
stated that the intrastate service available under CT 383 required a local exchange access line
presubscribed to the PIC code 10288.  On the other hand, VTNS, the interstate service with which GECCS
sought to pair the CT 383 service, could be carried only over lines presubscribed to the PIC code 10732. 
GECCS makes two primary arguments in support of its positions that its service request was reasonable
and that AT&T acted unreasonably in failing to provision the ordered service under CT 383.  First,
GECCS asserts that AT&T's position regarding the availability of CT 383 service is unreasonable because
it is inconsistent with other provisions of applicable AT&T tariffs, which, according to GECCS, require
AT&T to be flexible in the accommodation of customer orders.  GECCS further claims that nowhere does
CT 383 restrict the tariffed service to a particular PIC code.  Second, GECCS argues that AT&T's
position regarding the availability of CT 383 service is unreasonable because, in compliance with
applicable tariffs, AT&T could offer a service functionally equivalent to CT 383 over the 10732 PIC code,
thereby bypassing all of the asserted technical difficulties and fulfilling the terms of GECCS's order.  

      11.    AT&T responds that GECCS's tariff-based arguments mischaracterize certain AT&T tariff
provisions.  Furthermore, AT&T disputes GECCS's assertion that CT 383 service could be provided over
the 10732 PIC code.  According to AT&T, providing a service equivalent to CT 383 on lines with the
10732 PIC Code would necessitate a substantial and burdensome redesign of AT&T's network.  Indeed,
instead of simply requiring the same service with a different PIC code, AT&T asserts, GECCS's order
for CT 383 service with a PIC code of 10732 would require the creation of an entirely new AT&T
service.  

      2.     Discussion:  Tariff Provisions

      12.    GECCS relies on several different AT&T tariff provisions in support of its claim that
AT&T's tariffs require, or at least permit, AT&T to provide CT 383 service concurrently with VTNS;
these passages, however, will not do the work that GECCS demands of them.  GECCS cites section 7.2.1
of AT&T's Tariff FCC No. 12 ("Tariff 12"), which governs VTNS, as supporting its argument that AT&T
must be sufficiently flexible in its provisioning to accommodate GECCS's request for CT 383 service. 
This tariff provision, however, states merely that "AT&T selects and/or arranges for the network
components used to provide VTNS."  Contrary to GECCS's position, the tariff does not require AT&T
to provide VTNS in the specific manner chosen by a customer.  Rather, it appears to reserve to AT&T
the right to make routing decisions of precisely the type at issue here.  

      13.    GECCS also relies on two tariff provisions from AT&T Tariff FCC No. 1 ("Tariff 1"),
governing MEGACOM PLUS, the service that GECCS seeks under CT 383.  Section 6.19.1 of Tariff 1
excludes from the UNIPLAN Option under MEGACOM PLUS, only "Conference calls, Directory
Assistance calls, [c]alls to 700, 800 or 900 Special Service Codes."  Similarly, section 6.19.2.C of Tariff
1 provides:

             When local exchange service switched access is required to access AT&T
             MEGACOM PLUS Service, the Local Exchange Service Switched Access line
             must be pre-subscribed to AT&T as the primary interexchange carrier.

GECCS points out that, while sections 6.19.1 and 6.19.2.C both place restrictions on the service that
AT&T offered under CT 383, neither one specifies a particular PIC code that must be used with the
service.  GECCS argues that AT&T may impose no restriction, even a technical one, on its service that
does not appear in its tariff provisions.  Given the silence of Tariff 1 on the issue of PIC codes, GECCS
argues that AT&T's restriction of its CT 383 service to PIC code 10288 is unreasonable and a violation
of the Act.  Here again, we reject GECCS's argument.  Especially in light of the provisions in Tariff
1, which reserve to AT&T the right to select "channels and or service components used" to provide its
services, we do not view the tariff's silence on the technical issue of PIC codes as preventing AT&T
from limiting its CT 383 service to lines subscribed to a particular PIC code -- in this case 10288.

      14.    GECCS also relies on sections 7.2.22 and 7.2.19.B.1. of Tariff 12 in support of its
argument.  Section 7.2.22  states that "VTNS may be connected at a Customer's Premises to other services
provided by AT&T, if they are electrically compatible."  The second provision, section 7.2.19.B.1, states
that "AT&T will be responsible for the compatibility of its tariffed services with VTNS when such
services are connected to VTNS at an AT&T Central Office."  We agree with AT&T's argument
regarding these tariff passages.  Reasonably read, section 7.2.22 permits the customer to connect other
AT&T services to VTNS; it does not, however, require that AT&T perform substantial alterations to its
network routing systems in order to combine services typically carried over different PIC codes. 
Similarly, section 7.2.19.B.1 relates to connections physically accomplished at AT&T's Central Office,
such as connecting one private line to another private line.  It does not require that AT&T combine, on
a single billing telephone number, services usually offered only with separate PIC codes.  

      3.     Discussion:  Functionally Equivalent Service

      15.    As noted above, GECCS also contends that AT&T should be required to provide CT 383
service, or its functional equivalent, over PIC code 10732 so that it can be paired effectively with AT&T's
interstate VTNS service, which GECCS purchases from GE Corp.  We are not persuaded that either
Section 201 or the Commission's resale policies require that AT&T substantially alter its tariffed CT 383
service in order to make it available for use in conjunction with VTNS.  Nor is AT&T required to remove
functionalities from its SDN service, the intrastate service typically paired with VTNS, and offer the
stripped down SDN at the CT 383 rates.  

      16.    GECCS first argues that AT&T should be required to offer its CT 383 service over the
10732 PIC code, so that it could easily be paired with the VTNS interstate service.  Alternatively,
GECCS contends that AT&T simply should block all of the functionalities associated with the intrastate,
SDN service that is available to GECCS in combination with the VTNS interstate service.

      17.    AT&T responds that carrying CT 383 service over the 10732 PIC code would require a
substantial and burdensome redesign of major portions of AT&T's network.  In light of the significant
burden that would accompany the creation of the proposed alternative service, AT&T argues that its
refusal to accommodate GECCS violates neither Section 201, nor the Commission's resale policies. 
Moreover, AT&T asserts that it is not possible, as GECCS requests, to remove the various functionalities
from the SDN service, which is currently available to both GECCS and GE Corp., without also affecting
the interstate, VTNS service purchased by GECCS's parent, GE Corp.  

      18.    GECCS replies that AT&T has substantially overstated the burden that would result from
implementing the suggested change in the subject service by focusing on the changes that would be
necessary to move CT 383 service to the 10732 PIC code for all customers, rather than merely for
GECCS.  Additionally, GECCS argues that AT&T deliberately confuses the difficulty of providing the
proposed, modified SDN service only to GECCS's locations with the effect of providing it more generally
to all of GE Corp.'s locations.  

      19.    We agree with GECCS's observation that AT&T does not appear to have provided
information regarding the steps that would be necessary to offer CT 383 exclusively to GECCS over PIC
code 10732.  This omission, however, appears to be attributable as much to GECCS's phrasing of its
interrogatories as to any attempt by AT&T to obscure the facts.  The interrogatory that elicited AT&T's
description of the steps necessary to retool CT 383 service merely asked whether AT&T had "the ability
to offer the services offered under CT 383 using the 10732 PIC code."  We thus cannot fault AT&T for
failing to respond to the unasked question of what steps would be necessary to provide CT 383 service
to GECCS over the 10732 PIC code, without altering the manner in which AT&T provides CT 383
service to its other customers.  On the contrary, because the complainant bears the burden of proof in
proceedings filed under Section 208, it was incumbent on GECCS to come forward with persuasive
evidence to demonstrate that AT&T acted unreasonably in refusing to make the requested alterations to
its CT 383 service.  GECCS, however, has failed to do this.  Instead, GECCS alleges, without factual
support, that AT&T easily could have made the requested changes in GECCS's service.  

      20.    Moreover, apart from its counsel's arguments, which cannot take the place of record
evidence, GECCS has failed to present evidence regarding the feasibility of blocking SDN functionalities
at GECCS's locations, while leaving GE Corp.'s locations unaffected.  In the absence of such evidence,
we cannot accept GECCS's argument that AT&T acted unreasonably in declining to offer its SDN service,
with all functionalities blocked, at CT 383 rates.  Thus, we find that GECCS has failed to carry the burden
of proof on its claim that AT&T violated Section 201 by declining to provide a service like CT 383 over
the 10732 PIC code so that it could be paired, on a dial-1 basis, with VTNS.  

      21.    Additionally, we find that, while AT&T may have imposed restrictions on its services that
reduced GECCS's ability to resell certain AT&T services in the precise combination that GECCS desired,
on the present record, those restrictions do not appear to have violated the Commission's resale policies. 
The Commission has previously noted that prohibited resale restrictions may both constitute an "unjust
or unreasonable" practice in violation of Section 201(b) and amount to unlawful discrimination against
resellers under Section 202(a).  Thus, the Commission has found that a tariff provision violated the resale
policies where the provision restricted resale in the absence of either a demonstrable public benefit or a
valid business justification arising from the restriction.  Here, however, AT&T has offered a valid
business justification for refusing to reconfigure its CT 383 service in accordance with GECCS's request. 
In the absence of countervailing evidence from GECCS that AT&T's claimed justification is invalid --
evidence which, as noted above, GECCS has not presented -- we find no violation of the Commission's
resale policies.  

      22.    GECCS makes the additional argument that AT&T acted unreasonably in refusing to
provision those portions of the requested CT 383 service that are not routed through PIC codes:  all
inbound service, and outbound, dedicated service.  As AT&T notes in response, however, GECCS has
identified no evidence in the record that it amended the terms of its orders to request that these portions
of the service be installed independently from the outbound, switched service that is dependent on the PIC
code.  We decline to rule that AT&T has violated either Section 201 or the Commission's resale policies
merely because it did not choose, on its own, to effect a substantial change to GECCS's orders and install
only those portions of the CT 383 service that were unaffected by the parties' dispute over PIC codes.  

      23.    We thus find that GECCS has not established that AT&T's actions at issue in this
proceeding violated either Section 201 or the Commission's resale policies.  GECCS has failed to
establish, through substantial evidence, that its orders for CT 383 service were "reasonable request[s]"
within the meaning of Section 201(a).  Similarly, GECCS has failed to produce substantial evidence in
support of its position that AT&T's refusal to provision the CT 383 service in connection with VTNS
service amounts to an "unjust or unreasonable" practice under Section 201(b).  Furthermore, we are
unpersuaded that AT&T's actions in this case represent an unreasonable restriction on resale in violation
of the Commission's policies.  None of the Commission decisions on resale issues that GECCS has cited
can properly be read to require AT&T to undertake the substantial modifications to its tariffed services
that GECCS seeks in this proceeding.  Accordingly, we deny GECCS's complaint on the grounds
discussed above.  

      24.    In light of our decision on the above issues, we need not address the remaining, alternative
arguments that the parties have raised in this proceeding.  In particular, we decline to address the
reasonableness, vel non, of AT&T's assertion that GECCS lacked the authority to make changes to the
service of its parent, GE Corp.  Additionally, we do not reach GECCS's assertion that AT&T violated
Section 203 of the Act by refusing to provision CT 383 service on lines presubscribed to a PIC code other
than 10288.  This claim does not appear in GECCS's complaint; rather it was raised for the first time
in GECCS's brief.  So that defendants may have adequate notice of the claims against them, our rules
require that all claims appear in the complaint.  Accordingly, we do not pass on the merits of this portion
of GECCS's argument.   

      25.    As a final matter, we briefly address a motion to strike that GECCS incorporated into its
reply brief in this matter.  This motion requests that we strike from the record certain affidavits that
AT&T submitted with its initial brief because they were not submitted until that point in the proceeding. 
Apart from an unsupported assertion that the Enforcement Division stated that it would look with disfavor
on evidence submitted after the final status conference in the proceeding, however, GECCS offers neither
a Commission order nor rule that the late-submitted affidavits contravene.  Although we do not encourage
parties to await the briefing stage of a formal complaint proceeding to submit their evidence, we decline,
under the circumstances of this case, to strike AT&T's affidavits from the record, particularly when
GECCS had the opportunity to submit contrary evidence supporting its case with its reply brief.  

                              IV.  CONCLUSION

      26.    As set out more fully above, we find that AT&T has failed to establish that GECCS's
cause of action in this proceeding accrued more than two years before February 22, 1996, when it filed
its complaint.  We therefore deny AT&T's motion to dismiss.  Furthermore, we find that GECCS has
failed to establish that AT&T acted unreasonably under Section 201 of the Act, or in contravention of the
Commission's resale policies, in refusing, based on technical difficulties, to provision CT 383 service, or
its functional equivalent, over PIC code 10732.  Consequently, we deny, in its entirety, GECCS's
complaint in this proceeding.  Finally, we deny GECCS's motion to strike the affidavits submitted with
AT&T's brief.  
      
                           V.  ORDERING CLAUSES

      27.    Accordingly, IT IS ORDERED, pursuant to Section 4(i), 5(c), 201 and 208 of the
Communications Act of 1934, as amended, 47 U.S.C.  154(i), 155(c), 201, 208, and authority delegated
by Sections 0.91 and 0.291 of the Commission's Rules, 47 C.F.R.  0.91, 0.291, that the complaint filed
by GE Capital Communications Services Corp. IS DENIED.

      28.    IT IS FURTHER ORDERED, pursuant to Section 4(i), 5(c), 201 and 208 of the
Communications Act of 1934, as amended, 47 U.S.C.  154(i), 155(c), 201, 208, and authority delegated
by Sections 0.91 and 0.291 of the Commission's Rules, 47 C.F.R.  0.91, 0.291, that the motion to
dismiss this action filed by AT&T Corp. IS DENIED.

      29.    IT IS FURTHER ORDERED, pursuant to Section 4(i), 5(c), 201 and 208 of the
Communications Act of 1934, as amended, 47 U.S.C.  154(i), 155(c), 201, 208, and authority delegated
by Sections 0.91 and 0.291 of the Commission's Rules, 47 C.F.R.  0.91, 0.291, that the motion to strike
filed by GE Capital Communications Services Corp. IS DENIED.


      FEDERAL COMMUNICATIONS COMMISSION



      A. Richard Metzger
      Chief, Common Carrier Bureau