WPCe 2e ZB}0cHP LaserJet IIISix6X@7X@  #Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)X0Í Í X0Í Í ҫx6X@7X@<6X9`(CourierXXj\  PG;XP%\  `&Times New RomanXx6X@7X@<6X9`(CourierXXj\  PG;XP%\  `&Times New RomanXXj\  PG;XP%\  `&Times New RomanX&a\  PG;&P%\  `&Times New Roman&Xj\  PG;XP%\  `&Times New RomanX&a\  PG;&P%\  `&Times New Roman&Xj\  PG;XP%\  `&Times New RomanXXj\  P G;XP%\  `&Times New RomanXX\  P G;P%\  `&Times New RomanXj\  P G;XP%\  `&Times New RomanXX\  P G;P%\  `&Times New RomanXj\  P G;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  P G;P%\  `&Times New RomanXj\  P!G;XP%\  `&Times New RomanXX\  P"G;P%\  `&Times New RomanXj\  P#G;XP%\  `&Times New RomanXX\  P$G;P%\  `&Times New RomanXj\  P%G;XP%\  `&Times New RomanXX\  P&G;P%\  `&Times New RomanXj\  P'G;XP%\  `&Times New RomanXX\  P(G;P%\  `&Times New RomanXj\  P)G;XP%\  `&Times New RomanXX\  P*G;P%\  `&Times New RomanXj\  P+G;XP%\  `&Times New RomanXX\  P,G;P%\  `&Times New RomanXj\  P-G;XP%\  `&Times New RomanXX\  P.G;P%\  `&Times New RomanXj\  P/G;XP%\  `&Times New RomanXX\  P0G;P%\  `&Times New RomanXj\  P1G;XP%\  `&Times New RomanXX\  P2G;P%\  `&Times New RomanXj\  P3G;XP%\  `&Times New RomanXX\  P4G;P%\  `&Times New RomanXj\  P5G;XP%\  `&Times New RomanXX\  P6G;P%\  `&Times New RomanXj\  P7G;XP%\  `&Times New RomanXX\  P8G;P%\  `&Times New RomanXj\  P9G;XP%\  `&Times New RomanXX\  P:G;P%\  `&Times New RomanXj\  P;G;XP%\  `&Times New RomanXX\  P<G;P%\  `&Times New RomanXj\  P=G;XP%\  `&Times New RomanXX\  P>G;P%\  `&Times New RomanXj\  P?G;XP%\  `&Times New RomanXX\  P@G;P%\  `&Times New RomanXj\  PAG;XP%\  `&Times New RomanXX\  PBG;P%\  `&Times New RomanXj\  PCG;XP%\  `&Times New RomanXX\  PDG;P%\  `&Times New RomanXj\  PEG;XP%\  `&Times New RomanXX\  PFG;P%\  `&Times New RomanXj\  PGG;XP%\  `&Times New RomanXX\  PHG;P%\  `&Times New RomanXj\  PIG;XP%\  `&Times New RomanXX\  PJG;P%\  `&Times New RomanXj\  PKG;XP%\  `&Times New RomanXX\  PLG;P%\  `&Times New RomanXj\  PMG;XP%\  `&Times New RomanXX\  PNG;P%\  `&Times New RomanXj\  POG;XP%\  `&Times New RomanXX\  PPG;P%\  `&Times New RomanXj\  PQG;XP%\  `&Times New RomanXX\  PRG;P%\  `&Times New RomanXj\  PSG;XP%\  `&Times New RomanXX\  PTG;P%\  `&Times New RomanXj\  PUG;XP%\  `&Times New RomanXX\  PVG;P%\  `&Times New RomanXj\  PWG;XP%\  `&Times New RomanXX\  PXG;P%\  `&Times New RomanXj\  PYG;XP%\  `&Times New RomanXX\  PZG;P%\  `&Times New RomanXj\  P[G;XP%\  `&Times New RomanXX\  P\G;P%\  `&Times New RomanXj\  P]G;XP%\  `&Times New RomanXX\  P^G;P%\  `&Times New RomanXj\  P_G;XP%\  `&Times New RomanXX\  P`G;P%\  `&Times New RomanXj\  PaG;XP%\  `&Times New RomanXX\  PbG;P%\  `&Times New RomanXj\  PcG;XP%\  `&Times New RomanXX\  PdG;P%\  `&Times New RomanXj\  PeG;XP%\  `&Times New RomanXX\  PfG;P%\  `&Times New RomanXj\  PgG;XP%\  `&Times New RomanXX\  PhG;P%\  `&Times New RomanXj\  PiG;XP%\  `&Times New RomanXX\  PjG;P%\  `&Times New RomanXj\  PkG;XP%\  `&Times New RomanXX\  PlG;P%\  `&Times New RomanXj\  PmG;XP%\  `&Times New RomanXX\  PnG;P%\  `&Times New RomanXj\  PoG;XP%\  `&Times New RomanXX\  PpG;P%\  `&Times New RomanXj\  PqG;XP%\  `&Times New RomanXX\  PrG;P%\  `&Times New RomanXj\  PsG;XP%\  `&Times New RomanXX\  PtG;P%\  `&Times New RomanXj\  PuG;XP%\  `&Times New RomanXX\  PvG;P%\  `&Times New RomanXj\  PwG;XP%\  `&Times New RomanXX\  PxG;P%\  `&Times New RomanXj\  PyG;XP%\  `&Times New RomanXX\  PzG;P%\  `&Times New RomanXj\  P{G;XP%\  `&Times New RomanXX\  P|G;P%\  `&Times New RomanXj\  P}G;XP%\  `&Times New RomanXX\  P~G;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New RomanXj\  PG;XP%\  `&Times New RomanXX\  PG;P%\  `&Times New Roman2ee3|j#x6X@7X@#  #Xj\  PG;XP##Xj\  PG;XP# I. A. 1. a.(1)(a) i) a) 3' X8Í Í X8Í Í #&a\  PG;&P#  @--@#Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#&a\  PG;&P#  #Xj\  PG;XP#Federal Communications Commission`(#CDA 98818 ă yxdddy Պ  Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554  In the Matter of ) ) GE CAPITAL COMMUNICATIONS SERVICES) CORPORATION,) Complainant,) ) v. )File No. E9622 ) AT&T CORPORATION, ) Defendant. ) MEMORANDUM OPINION AND ORDER    Adopted: April 29, 1998` 7Released: May 1, 1998    By the Chief, Common Carrier Bureau: # I. INTRODUCTION ă 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"),=#Xj\  P G;XP# I. A. 1. a.(1)(a) i) a)#X\  P G;P#э47 U.S.C.  201(a), (b). Section 201(a) declares, in relevant part, that "[i]t shall be the duty of every common carrier engaged in interstate or foreign communication by wire or radio to furnish such communication service upon reasonable request therefor." Section 201(b) states that "[a]ll charges, practices, classifications, and regulations for and in connection with . . . communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is hereby declared to be unlawful." = and the Commission's resale orders and policiesO#Xj\  P G;XP# I. A. 1. a.(1)(a) i) a)#X\  P G;P#эSee, e.g., Regulatory Policies Concerning Resale and Shared Use of Common Carrier Services and Facilities, 60 FCC2d 261, 298,  75 (1976),  recon., 62 FCC2d 588 (1977), aff'd sub nom. American Telephone & Telegraph Co. v. FCC, 572 F.2d 17 (2d Cir.), cert. denied, 439 U.S. 875 (1978). O by refusing to provide service to GECCS under AT&T Contract Tariff No. 383 ("CT 383").#Xj\  P G;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эComplaint at 1114.  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. #Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#э47 U.S.C.  415(b).  As discussed more fully below, we deny both AT&T's motion to dismiss and GECCS's formal complaint. #II. BACKGROUND GECCS is a common carrier engaged in interstate commerce through the resale of telecommunications services purchased from AT&T and other facilitiesbased common carriers.#Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эComplaint at 12.  AT&T is a common carrier that is engaged in interstate and foreign communications.#Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эId. at 2.  Both parties are subject to the Act and to the Commission's jurisdiction. 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.*#Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эSee id. at 4; Answer at 4. * As it was originally filed, CT 383 offered two separate volume discounts that were available simultaneously to qualifying customers.@#Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эThe two CT 383 provisions containing these two usage discounts read, in pertinent part, as follows: ` ` ` Section 6.B.3. AT&T will apply a quarterly usage credit, in an amount equal to 10% of the total of the qualifying usage charges in the previous quarter, excluding operator assisted usage charges and after application of discounts, which will be applied to usage charges in the next full billing month following the end of each quarter. To be eligible to receive this credit, the Customer must have at least $90,000 in postdiscounted quarterly usage billing . . . . ` ` ` Section 6.B.4. AT&T will apply a quarterly usage credit, in an amount equal to 15% of the total qualifying usage charges in the previous quarter, excluding operator assisted usage charges and after application of discounts, which will be applied to usage charges in the next full billing month following the end of each quarter. To be eligible to receive this credit, the Customer must have at least $195,000 in postdiscounted quarterly usage billing. @ On August 26, 1993, GECCS submitted to AT&T its timely written order for service under the new tariff.2 #Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эSee Complaint at 45; Answer at 4. 2 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.` #Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эSee Complaint, Exh. B (September 13, 1993 letter of R. Higginson to R. Reisner). ` 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.( #Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эComplaint at 67; Answer at 5. ( 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. #Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  P G;P#эSeeĠAT&T Brief at 5 n.12. AT&T filed Contract Tariff Transmittal No. 952 to make both discounts available to those customers that had ordered service before AT&T revised its tariff. Id.  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."W #Xj\  P!G;XP# I. A. 1. a.(1)(a) i) a)#X\  P"G;P#эSee Complaint, Exh. G (Nov. 24, 1993 letter of R. Reisner to G. Brown). W 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.").&#Xj\  P#G;XP# I. A. 1. a.(1)(a) i) a)#X\  P$G;P#эSeeĠGECCS Brief at 16. & 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.W#Xj\  P%G;XP# I. A. 1. a.(1)(a) i) a)#X\  P&G;P#эSeeĠComplaint, Exh. G (Nov. 24, 1994 letter of R. Reisner to G. Brown). W 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.2#Xj\  P'G;XP# I. A. 1. a.(1)(a) i) a)#X\  P(G;P#эSee Complaint at 9; Answer at 67. 2 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 CT383 service (carried on PIC code 10288) and VTNS (carried on PIC code 10732) on the same billing telephone numbers ("BTNs"). #Xj\  P)G;XP# I. A. 1. a.(1)(a) i) a)#X\  P*G;P#эSee Complaint, Exh. L (July 22, 1994 letter of G. Brown to J. Murphy). The parties have used the term "PIC code" to denote the fivedigit, presubscribed Carrier Access Codes associated with the different AT&T services at issue in this proceeding. See, e.g., GECCS Brief at 19; AT&T Brief at 24. These codes, in this case 10288 and 10732, are associated with different interexchange services, and the code to which a particular billing telephone number is presubscribed determines which services are available on a dial1 basis. See, e.g., Administration of the North American Numbering Plan Carrier Identification Codes, 12 FCC Rcd 8024, 8024, 1 (1997). For the purpose of this order, we have adopted the parties' use of the term PIC code.  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 dial1 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.N#Xj\  P+G;XP# I. A. 1. a.(1)(a) i) a)#X\  P,G;P#эSee Reply, Exh. 2 at 56 (May 2, 1996 affidavit of J. Murphy). N 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.#Xj\  P-G;XP# I. A. 1. a.(1)(a) i) a)#X\  P.G;P#эSee id. 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.#Xj\  P/G;XP# I. A. 1. a.(1)(a) i) a)#X\  P0G;P#эSee id. Eventually, on July 22, 1994, AT&T wrote to GECCS, stating that, because of the differing PIC codes associated with the two services, CT383 service could not be provisioned on the same line as VTNS.V#Xj\  P1G;XP# I. A. 1. a.(1)(a) i) a)#X\  P2G;P#эSee Complaint, Exh. L (July 22, 1994 letter of G. Brown to J. Murphy). V 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.k#Xj\  P3G;XP# I. A. 1. a.(1)(a) i) a)#X\  P4G;P#эThis complaint followed the Commission's January 4, 1995 notice of apparent liability for forfeiture, which alleged a continuing violation of Section 201(a) arising from AT&T's dealings with GECCS and two other carriers. See In re AT&T Communications, Apparent Liability for Forfeiture and Order to Show Cause, 10 FCC Rcd 1664 (1995) (NAL). k The complaint asked that AT&T be ordered to pay damages in an amount to be proved in a supplemental complaint.#Xj\  P5G;XP# I. A. 1. a.(1)(a) i) a)#X\  P6G;P#эComplaint at 15.  $ III. DISCUSSION ă  A.Motion to Dismiss Based on the Statute of Limitation Before reaching the merits of this proceeding, we address AT&T's motion to dismiss based on Section 415(b), the Act's twoyear limitation applicable to certain damage claims.]#Xj\  P7G;XP# I. A. 1. a.(1)(a) i) a)#X\  P8G;P#эSection 415(b) provides, in relevant part 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." 47 U.S.C.  415(b). Section 415(c) places a similar limitation on actions seeking to recover overcharges.] 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.#Xj\  P9G;XP# I. A. 1. a.(1)(a) i) a)#X\  P:G;P#эAT&T Brief at 14.  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.#Xj\  P;G;XP# I. A. 1. a.(1)(a) i) a)#X\  P<G;P#эSee, e.g., December 2, 1993 letter of G. Brown to R. Reisner at 2 ("Given the nature of your VTNS, such a request for end users to receive both VTNS and CT 383 discounts is more complicated.") (Complaint, Exh. H); February 7, 1994 letter of J. Murphy to R. Higginson (indicating GECCS's knowledge of "technical incompatibilities of the `PIC' codes" between two services) (Complaint, Exh. J).  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.V#Xj\  P=G;XP# I. A. 1. a.(1)(a) i) a)#X\  P>G;P#эSee Complaint, Exh. L (July 22, 1994 letter of G. Brown to J. Murphy). V 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.-#Xj\  P?G;XP# I. A. 1. a.(1)(a) i) a)#X\  P@G;P#эSee GECCS Reply Brief at 89. - 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.s#Xj\  PAG;XP# I. A. 1. a.(1)(a) i) a)#X\  PBG;P#эSee AT&T Brief, Exh. 11 at A00000010 (minutes of May 3, 1994 conference call between AT&T and GECCS).s Only by its letter of July 22, 1994 does it appear that AT&T unequivocally declined to install the CT383 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."W#Xj\  PCG;XP# I. A. 1. a.(1)(a) i) a)#X\  PDG;P#эSprint Communications Co., L.P. v. FCC, 76 F.3d 1221, 1226 (D.C. Cir. 1996) (internal quotation omitted). See also MCI Telecommunications Corp. v. FCC, 59 F.3d 1407, 1416 (D.C. Cir. 1995); Hobson v. Wilson, 737 F.2d 1, 34 (D.C. Cir. 1984); Bunker Ramo Corp. v. Western Union Tel. Co., 31 FCC2d 449, 454 (1971).W 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,#Xj\  PEG;XP# I. A. 1. a.(1)(a) i) a)#X\  PFG;P#эSee Complaint at 910. GECCS's complaint merely seeks damages in an amount to be proved after the filing of a supplemental complaint. Id. at 15. Accordingly, it does not explicitly address the date from which its damages should be calculated; however, the complaint notes GECCS's claim, in its July 11, 1994 letter, that its services should be rerated at the CT 383 rates beginning November 1, 1993. Id. at 910.  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 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 CT383 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);H #Xj\  PGG;XP# I. A. 1. a.(1)(a) i) a)#X\  PHG;P#э47 U.S.C.  201(a); see Complaint at 1113 (Count I). H (2) that AT&T's refusal to provide CT 383 service amounted to an "unjust or unreasonable" practice in violation of Section 201(b);G!#Xj\  PIG;XP# I. A. 1. a.(1)(a) i) a)#X\  PJG;P#э47 U.S.C.  201(b); see Complaint at 14 (Count III). G 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."#Xj\  PKG;XP# I. A. 1. a.(1)(a) i) a)#X\  PLG;P#эSee NAL, 10 FCC Rcd at 1666,  12, 13; see also infra at  RESALE POLICIES21; Complaint at 1314 (Count II).  The parties agree that, by its letters of August 26 and November 24, 1993, GECCS ordered CT 383 service from AT&T,:##Xj\  PMG;XP# I. A. 1. a.(1)(a) i) a)#X\  PNG;P#эSee Complaint at 4, 78; Answer at 4, 56. : and that AT&T has not provided the requested service.1$#Xj\  POG;XP# I. A. 1. a.(1)(a) i) a)#X\  PPG;P#эSeeĠComplaint at 10; Answer at 7. 1 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 CT383 order amounted to a "reasonable request" for telecommunications service under Section 201(a). 1.Overview of the Parties' Contentions 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.\%#Xj\  PQG;XP# I. A. 1. a.(1)(a) i) a)#X\  PRG;P#эSee Complaint, Exh. L (July 22, 1994 letter of G. Brown to J. Murphy). \ 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. AT&T responds that GECCS's tariffbased 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 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.&#Xj\  PSG;XP# I. A. 1. a.(1)(a) i) a)#X\  PTG;P#эGECCS Brief at 24.  This tariff provision, however, states merely that "AT&T selects and/or arranges for the network components used to provide VTNS."P'#Xj\  PUG;XP# I. A. 1. a.(1)(a) i) a)#X\  PVG;P#эId., Exh. B  7.2.1, 4th rev. p. 41 (AT&T Tariff FCC No. 12). P Contrary to GECCS's position, the tariff does not require AT&T to provide VTNS in the specific manner chosen by a customer.+(#Xj\  PWG;XP# I. A. 1. a.(1)(a) i) a)#X\  PXG;P#эCf. AT&T Reply Brief at 18. + Rather, it appears to reserve to AT&T the right to make routing decisions of precisely the type at issue here.)#Xj\  PYG;XP# I. A. 1. a.(1)(a) i) a)#X\  PZG;P#эSee also AT&T Tariff FCC No. 1  2.1.2 (AT&T "selects and/or arranges for the channels and or service components used" to provide its service).  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."b*#Xj\  P[G;XP# I. A. 1. a.(1)(a) i) a)#X\  P\G;P#эSeeĠGECCS Brief, Exh. B,  6.19.1, 6th rev. p. 178.175 (AT&T Tariff FCC No. 1). b 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 presubscribed to AT&T as the primary interexchange carrier.<+#Xj\  P]G;XP# I. A. 1. a.(1)(a) i) a)#X\  P^G;P#эSee id.,  6.19.2.C, 9th rev. p. 178176. < 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.,#Xj\  P_G;XP# I. A. 1. a.(1)(a) i) a)#X\  P`G;P#эGECCS Brief at 2425.  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,-#Xj\  PaG;XP# I. A. 1. a.(1)(a) i) a)#X\  PbG;P#эSee AT&T Tariff FCC No. 1  2.1.2 (AT&T "selects and/or arranges for the channels and or service components used" to provide its service).  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. 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."T.#Xj\  PcG;XP# I. A. 1. a.(1)(a) i) a)#X\  PdG;P#эGECCS Brief, Exh. B  7.2.22, 1st rev. p. 46.13 (AT&T Tariff FCC No. 12).T 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."5/#Xj\  PeG;XP# I. A. 1. a.(1)(a) i) a)#X\  PfG;P#эId.  7.2.19.B.1, 2d rev. p. 46.9. 5 We agree with AT&T's argument regarding these tariff passages.@0#Xj\  PgG;XP# I. A. 1. a.(1)(a) i) a)#X\  PhG;P#эSee AT&T Brief at 2728; AT&T Reply Brief at 18. @ 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 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. 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.21#Xj\  PiG;XP# I. A. 1. a.(1)(a) i) a)#X\  PjG;P#эGECCS Brief at 27; GECCS Reply at 1215. 2 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.2#Xj\  PkG;XP# I. A. 1. a.(1)(a) i) a)#X\  PlG;P#эSee GECCS Brief at 29; GECCS Reply Brief at 1720. AT&T's SDN service permits the subscriber to create a virtual private network by employing "customized features such as onnetwork numbering plans, onnetwork calling capability, authorization codes, call screening, flexible routing and remote access." AT&T Reply Brief at 13. See also AT&T Brief, Exh. 1 (affidavit of John Andrews) (discussing certain SDN functionalities).  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.Z3#Xj\  PmG;XP# I. A. 1. a.(1)(a) i) a)#X\  PnG;P#эSee AT&T Brief at 2325. In its Additional Responses to the First Set of Interrogatories of GE Capital Communication Services Corp., AT&T described as follows the network modifications that would be necessary to permit it to offer CT 383 service using the 10732 PIC code: ` ` ` First, because Uniplan Service [formerly called MEGACOM PLUS] is available nationwide, AT&T would have to eliminate the 10288 trunk entirely throughout its network to ensure that all CT 383 calls are transported on the 10732 trunk. Second, AT&T would also have to redesign and merge the data bases that currently separately support the 10288 PIC and 10732 PIC so that when the call enters AT&T's 4ESS switch, the data base can distinguish public switch (i.e., 10288) calls from virtual private network (i.e., 10732) calls. Otherwise, a public switch call could be treated as a virtual private network call, subject to call blocking, which restricts the ability of customers to complete certain calls (e.g., to specific area codes), or to any other virtual private network feature. Third, because the billers are also currently segregated based on data bases, AT&T would similarly have to redesign the billing feeds. Fourth the Local Exchange Carrier (LEC) switch would also have to be reengineered to route all AT&T traffic to the 10732 trunk route. In addition to the physical work, this would involve renegotiating AT&T's access contracts with the LEC. AT&T Brief, Exh. 7 at 23 (Additional Responses of AT&T to the First Set of Interrogatories of GE Capital Communication Services Corp.). Z 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.,4#Xj\  PoG;XP# I. A. 1. a.(1)(a) i) a)#X\  PpG;P#эSee, e.g., AT&T Brief at 32. , 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.)5#Xj\  PqG;XP# I. A. 1. a.(1)(a) i) a)#X\  PrG;P#эSee GECCS Reply at 1314. ) 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.6#Xj\  PsG;XP# I. A. 1. a.(1)(a) i) a)#X\  PtG;P#эSee id. at 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 CT383 using the 10732 PIC code."7#Xj\  PuG;XP# I. A. 1. a.(1)(a) i) a)#X\  PvG;P#эAT&T Brief, Exh. 7 at 1 (Additional Responses of AT&T to the First Set of Interrogatories of GE Capital Communication Services Corp.).  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 208,8#Xj\  PwG;XP# I. A. 1. a.(1)(a) i) a)#X\  PxG;P#эSee, e.g., Amendment of Rules Concerning Procedures to be Followed When Formal Complaints are Filed Against Common Carriers, 8 FCC Rcd 2614, 261617,  15 (1993); Connecticut Office of Consumer Counsel v. AT&T Communications, 4 FCC Rcd 8130, 8133,  19 (1989), aff'd sub nom. Connecticut Office of Consumer Counsel v. FCC, 915 F.2d 75 (2d Cir. 1990), cert. denied, 499 U.S. 920 (1991). See generally 47 C.F.R.  1.7201.735.  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 CT383 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.69#Xj\  PyG;XP# I. A. 1. a.(1)(a) i) a)#X\  PzG;P#эSee GECCS Reply Brief at 1314 & n.39. 6 Moreover, apart from its counsel's arguments, which cannot take the place of record evidence,:#Xj\  P{G;XP# I. A. 1. a.(1)(a) i) a)#X\  P|G;P#эSee, e.g., International Telecharge, Inc. v. Southwestern Bell Tel. Co., 11 FCC Rcd 10061, 10076,  40 (Com. Car. Bur. 1996).  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 dial1 basis, with VTNS. RESALE POLICIESAdditionally, 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.;#Xj\  P}G;XP# I. A. 1. a.(1)(a) i) a)#X\  P~G;P#эCf. America's Choice Communications, Inc. v. LCI Int'l Telecom Corp., 11 FCC Rcd 22494, 22503, 22 (Com. Car. Bur. 1996).  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).RESALE FOOTNOTE<#Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эSee Regulatory Policies Concerning Resale and Shared Use of Common Carrier Domestic Public Switched Network Services, 83 FCC2d 167, 17174,  714 (1980), aff'd sub nom. Southern Pacific Communications Co. v. FCC, 682 F.2d 232 (D.C. Cir. 1982).  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.O=#Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эSee id. See also Regulatory Policies Concerning Resale and Shared Use of Common Carrier Services and Facilities, 60 FCC 2d 261, 321,  130 (1976), recon., 62 FCC2d 588 (1977), aff'd sub nom. American Telephone and Telegraph Co. v. FCC, 572 F.2d 17 (2d Cir.), cert. denied, 439 U.S. 875 (1978).O 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. 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.>#Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эGECCS Brief at 2223.  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.B?#Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эSee AT&T Brief at 25 n.56; AT&T Reply Brief at 16. B 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. 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.;@#Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эSee supra  RESALE POLICIES21. ; 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. 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.AA#Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эSee GECCS Reply Brief at 20; AT&T Brief at 3339. A 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. B#Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эSee GECCS Brief at 2324. Section 203 requires, inter alia, that common carriers file with the Commission tariffs "showing the classifications, practices, and regulations affecting" charges for their communication service. 47 U.S.C.  203(a).  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.C#Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эSee 47 C.F.R.  1.721(a); America's Choice Communications Inc. v. LCI Int'l Telecom Corp., 11 FCC Rcd 22494, 22504,  24 (Com. Car. Bur. 1996).  Accordingly, we do not pass on the merits of this portion of GECCS's argument. 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.-D#Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эSee GECCS Reply Brief at 27. - 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 latesubmitted 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. E#Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эWe note that, in Implementation of the Telecommunications Act of 1996, Amendment of Rules Governing Procedures to Be Followed When Formal Complaints are Filed Against Common Carriers, Report and Order, 12 FCC Rcd 22497, 2252940,  6997 (1997), the Commission announced new procedural rules designed to encourage parties to exchange evidentiary materials at an earlier stage in formal complaint proceedings than was required under the rules that were in effect at the time relevant to this proceeding.  # IV. CONCLUSION ă 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.F#Xj\  PG;XP# I. A. 1. a.(1)(a) i) a)#X\  PG;P#эOur disposition of GECCS's complaint resolves the issues presented in the portion of the NAL proceeding relating to GECCS. Accordingly, notwithstanding the different burden of proof that applies in Section 208 complaint proceedings, we conclude that our ruling in this matter fully disposes of the NAL as it relates to AT&T's dealings with GECCS. Those portions of the NAL that relate to parties other than GECCS are unaffected by this ruling.  Finally, we deny GECCS's motion to strike the affidavits submitted with AT&T's brief.  ! V. ORDERING CLAUSES ă 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. 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. 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