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FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
Total Telecommunications Services, )
Atlas Telephone Company, Inc., )
v. ) File No. E-97-003
AT&T Corporation, )
MEMORANDUM OPINION AND ORDER
Adopted: March 8, 2001 Released: March 13, 2001
By the Commission:
1. In this Memorandum Opinion and Order (``Order''), we deny a
complaint filed by Total Telecommunications Services, Inc.
(``Total'') and Atlas Telephone Company, Inc. (``Atlas'')
(collectively, ``Complainants'') against AT&T Corporation
(``AT&T'') pursuant to section 208 of the Communications Act
of 1934, as amended (``Act'' or ``Communications Act'').1 In
particular, we find that, under the specific circumstances of
this case, the provisions of the Communications Act on which
Complainants rely do not prohibit AT&T from refusing to
purchase terminating access services from Total or from
blocking calls from AT&T customers to the sole end-user
customer to which Total terminates traffic. Further, we grant
in part and deny in part the counterclaim filed by AT&T
against Total and Atlas. In particular, we grant AT&T's claim
that Total and Atlas violated section 201(b) of the Act2 by
engaging in an unreasonable scheme to inflate the access fees
charged to AT&T, and deny the remainder of AT&T's claims as
either moot or meritless.
A. The Parties
2. Atlas is an incumbent local exchange carrier (``LEC'')
located in Big Cabin, Oklahoma that serves approximately 1500
end users. Atlas provides local exchange service to end user
customers, and originating and terminating exchange access
services to AT&T and other interexchange carriers (``IXCs'').3
Atlas charges IXCs access rates specified by the National
Exchange Carrier Association (``NECA'').4
3. Total was formed on May 26, 1995, and identifies itself as a
competitive access provider (``CAP'') in Oklahoma.5 Although
Total purports to be an independent entity that competes with
Atlas in the access market, Total and Atlas actually have a
``highly intertwined'' and ``symbiotic'' relationship.6 For
example, the same person is both the President of Atlas and
the Chairman of Total; Atlas and Total operate in the same
geographic area; Total's sole end office is collocated in an
Atlas end office building; all of Total's transmission
facilities are leased from Atlas; and Total received a $20,000
startup loan from the Atlas pension fund.7
4. Total's Tariff F.C.C. No. 1, filed on July 31, 1995,
specifies the rates, terms, and conditions under which it
offers access services.8 Because Total is a ``non-dominant''
carrier, its tariff took effect on one day's notice.9 The
terminating access charges of Total exceed those of Atlas by
5. During the relevant period, Total provided no local exchange
service. Moreover, there was only one end-user customer to
which Total terminated traffic: Audiobridge of Oklahoma, Inc.
(``Audiobridge'').11 Audiobridge provides its customers a
kind of multiple voice bridging service (``MVBS'') commonly
known as ``chat-line'' service.12 This service connects
incoming calls so that two or more callers can talk with each
other simultaneously.13 This differs from traditional
conference call service in that callers to the chat line are
randomly paired with other callers. In addition, unlike many
chat-line operators, Audiobridge does not impose any charges
on callers. Instead, Audiobridge obtains all of its revenues
from Total, as described below.14 Thus, callers to
Audiobridge pay only their IXC for the calls, and pay only the
IXC's tariffed, long-distance toll charges.15
6. During the period at issue here, when an AT&T subscriber
placed a long distance call to Audiobridge in Big Cabin,
Oklahoma, the call was initially handled by the subscriber's
local telephone company. In this context, the local telephone
company is known as the ``originating access provider.'' The
local telephone company transported the call to AT&T, which
transported the call across AT&T's long distance network to an
AT&T point of presence (``POP'') located in an area of
Oklahoma near Big Cabin served by Southwestern Bell Telephone
Company (``Southwestern Bell''). From the AT&T POP, the call
was transmitted through Southwestern Bell's facilities to a
``meet point'' with Atlas. Atlas carried the call over its
facilities, switched the call through its access tandem
switching equipment, and ultimately transported the call to a
meet point with Total (the ``terminating access provider'').
Atlas charged AT&T a relatively modest fee for this tandem
switching service pursuant to the NECA tariff. As the
``terminating access provider,'' Total routed the call to its
sole end user customer, Audiobridge. Total then separately
billed AT&T for terminating access services.16
B. The Agreement Between Total and Audiobridge
7. On July 6, 1995, about three weeks before Total filed its
first federal tariff, Total entered an agreement with
Audiobridge whereby Total would pay Audiobridge commission
payments of 50 to 60 percent of Total's terminating access
revenues from calls completed to Audiobridge. In return,
Audiobridge would market and otherwise aid the chat-line
operations.17 As mentioned above, the commission payments
that Total pays to Audiobridge out of terminating access
revenues constitute Audiobridge's only source of revenue.18
C. AT&T's Dealings With Atlas and Total in Late 1995
8. From July 1995 through October 1995, representatives of
Total and AT&T negotiated over the installation of facilities
necessary to handle the anticipated traffic between them. In
order to transport and terminate such traffic, AT&T ultimately
ordered from Atlas a total of 336 trunks to carry calls from
AT&T customers to Total's end office, via Atlas' tandem.19
Atlas itself also purchased additional facilities to support
its part in the arrangement.20
9. On approximately August 1, 1995, Total began completing
calls from AT&T customers to Audiobridge.21 From August 1,
1995, to November 22, 1995, Total terminated approximately 10
million minutes of use for calls from AT&T customers to
10. Sometime in early September, 1995, AT&T contacted Total and
questioned why AT&T should pay Total for access service,
because AT&T had ordered trunk lines from Atlas, not from
Total.23 After a fruitless period of negotiation over Total's
rates, AT&T notified Total by letter in early November, 1995
that it planned to terminate service between its customers and
the end user served by Total (i.e., Audiobridge) on the
grounds that AT&T did not order such service, and had not been
aware of Total's relationship with Atlas until AT&T received
11. On November 22, 1995, after various warnings to Total, AT&T
began blocking all calls from AT&T's customers to Audiobridge
and declining to purchase access services from Total.25 In
other words, AT&T ceased connecting calls placed over its
network intended for Audiobridge. In addition, AT&T refused
to pay Total's bills for access charges for the period August
through November 1995.26 AT&T did pay, however, the
corresponding tandem switching transport charges to Atlas.27
D. The Parties' Legal Claims
12. On October 18, 1996, Atlas and Total filed the instant
complaint before the Commission.28 Atlas and Total contend
that AT&T's blockage of calls destined for Audiobridge via
Total violates sections 201(a), 202(a), 214(a), and 251(a) of
the Act.29 Total seeks a Commission order permanently
restraining and prohibiting AT&T from preventing its
subscribers from completing telephone calls to Total's end-
user customer. In addition, Total and Atlas seek the recovery
of damages arising from AT&T's blocking of traffic, and
reserve the right to file a supplemental complaint for damages
pursuant to section 1.722 of the Commission's rules.30
13. In response to Total's complaint, AT&T answered, inter alia,
that the Act does not require AT&T to purchase unwanted access
services from Atlas and Total. In addition, AT&T filed a
cross-complaint31 alleging that (1) Atlas and Total are
violating section 201(b) of the Act by engaging in a scheme to
circumvent the Commission's rules regarding dominant
carriers32 and pay-per-call services33; (2) Total is violating
section 201(b) of the Act by charging unreasonably high access
fees; (3) Atlas and Total are violating section 228 of the
Act34 by operating a pay-per-call service without employing a
900 number; (4) Total is violating section 203 of the Act35 by
seeking to preclude AT&T from exercising its right under
Total's tariff to cancel service; (5) Atlas and Total are
violating section 201(b) of the Act by charging AT&T for
services that are not properly described in their respective
tariffs; and (6) Total is violating section 203 of the Act by
refusing to pay AT&T for the legal fees and costs that it
incurred in the court actions described above, as required by
Total's tariff. As relief, AT&T requests, inter alia, ``an
order requiring Atlas to pay as damages the approximately
$150,000 that AT&T has been improperly charged, plus
interest,''36 plus other ``damages in an amount to be
determined,'' and injunctive relief.37
14. As explained below, we conclude that Atlas created Total as
a sham entity designed to impose increased access charges on
calls made to Audiobridge. Because this conclusion about the
relationship between Atlas and Total informs our decisions on
Complainants' claims, we begin the discussion by examining
AT&T's counterclaim that focuses on that relationship.
B. Total and Atlas Violated Section 201(b) of the Act by
Engaging in an Unreasonable Scheme to Inflate the Access
Charges Assessed Against AT&T.
15. In Count II of its Counterclaim, AT&T argues that Atlas and
Total violated section 201(b) of the Act by engaging in a
scheme to inflate unreasonably the access charges assessed
against AT&T.38 In particular, AT&T claims that Total is not
a legitimate CAP, but rather is a mere shell created by Atlas
to extract an inflated ``access charge'' payment from AT&T.39
AT&T asserts that Total and Atlas were able to charge rates
for access services that were greater than those that would
have been imposed by Atlas alone pursuant to its tariff. AT&T
further argues that, although the Commission has permitted
incumbent LECs to have separate affiliates that engage in
competitive enterprises, it has never permitted this when the
new affiliate provides the same service in the same geographic
region as the incumbent LEC.40
16. We agree with AT&T that Atlas created Total as a sham entity
designed solely to extract inflated access charges from IXCs,
and that this artifice constitutes an unreasonable practice in
connection with the provision of access service, in violation
of section 201(b) of the Act. Our conclusion rests on the
relationship between Atlas and Total; the evidence compels the
conclusion that the two entities are not independent or
competitive. As previously stated, the Complainants share a
high ranking official: the same person is both President of
Atlas and Chairman of Total. Moreover, Total received a
$20,000 startup loan from Atlas' pension fund; Total's sole
end office is collocated in an Atlas end office building; and
all of Total's transmission facilities are leased from
Atlas.41 This record shows that Total's sole business
activity was to provide IXCs with terminating access to a
single party, Audiobridge, at rates significantly higher than
those charged by Atlas for terminating access to every other
customer in the area. Finally, the fact that 50 to 60 percent
of Total's access revenues are used to finance the Audiobridge
chat line lends support to our conclusion that Atlas created
Total to increase access charges for calls to Audiobridge.
17. Complainants have not adequately rebutted the assertion that
Total is not a legitimate independent entity. Complainants
merely assert that Total intended to compete with Atlas, but
was forced to withdraw its application to provide local
exchange service in Oklahoma due to AT&T's opposition
thereto.42 Furthermore, Complainants argue that Total's
``business relationship with Atlas does not violate the
Commission's dominant carrier regulations,''43 because
``local telephone companies are perfectly free to have
subsidiaries enter into competitive telecommunications markets
and those subsidiaries have been treated by the Commission as
non-dominant.''44 These arguments, however, avoid the heart
of the matter. The fundamental issue is not whether
Complainants have violated the Commission's dominant carrier
regulations, or whether Total ``intended'' to compete with
Atlas, but whether Total is truly an independent entity. On
this point, Complainants have not provided any evidence (or
argument) that AT&T's depiction of Total's relationship with
Atlas is erroneous. Complainants have thus failed to convince
us that Total and Atlas are independent entities.
18. In sum, the arrangement between Total and Atlas serves only
to create a superficial distinction intended to enable Atlas
to increase its fees for interexchange access for calls to the
Audiobridge chat line. We find that this corporate structure
was a sham, and we will not permit Atlas to charge indirectly,
through a sham arrangement, rates that it could not charge
directly through its existing tariff. Accordingly, we find in
favor of AT&T on Count II of its Counterclaim.
C. Sections 201(a), 251(a), 214(a) and 202(a) of the Act Do Not
Prohibit AT&T From Declining to Purchase Total's Terminating
Access Services and Blocking Calls to Audiobridge.
1. Section 201(a) Does Not Require AT&T To Complete Calls
19. Complainants argue that section 201(a) of the Act requires
AT&T to purchase Total's terminating access services and
complete calls to Audiobridge.45 The first clause of section
201(a) states: ``It 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.''46 The second clause of section 201(a)
requires an interstate common carrier ``to establish physical
connections with other carriers, to establish through routes
and charges applicable thereto and the divisions of such
charges, and to establish and provide facilities and
regulations for operating such through routes,'' but only if
``the Commission, after opportunity for hearing, finds such
action necessary or desirable in the public interest.''47
20. Complainants assert that section 201(a) requires AT&T to
maintain its interconnection with Total, continue to purchase
Total's terminating access services, and refrain from blocking
traffic to Audiobridge. Complainants argue that the first
clause of section 201(a) requires AT&T to ``furnish . . .
communication service'' to Total and Audiobridge, even though
the Commission has not made any of the public interest
findings required under the second clause of section 201(a).48
In bringing this claim, Complainants purport to step into the
shoes of AT&T's customers who are trying to call Audiobridge.
Specifically, Complainants assert that a ``reasonable
request'' for AT&T to ``furnish'' a communications service is
made each time a caller ¾ i.e., an AT&T customer ¾ dials the
particular number of a party that the caller desires to
reach.49 Hence, because AT&T's customers attempting to reach
Audiobridge have dialed Audiobridge's number, they allegedly
have made a ``reasonable request'' for service, which AT&T
must honor under the first clause of section 201(a).
21. Even assuming, arguendo, that we must address a claim
brought by Atlas and Total on behalf of someone other than
themselves, i.e., AT&T's customers, we conclude that
Complainants' claim lacks merit. As stated above, section
201(a) obligates AT&T to furnish service only upon
``reasonable'' request. If an AT&T customer asks AT&T to
provide a service that would require AT&T to transport traffic
to a carrier that charges an unlawful rate to terminate the
traffic, the customer's request is not ``reasonable'' under
section 201(a). Here, we have previously concluded that
Total's access rate was unlawful because it represented an
attempt by Atlas to charge, through a sham arrangement, access
rates it was not otherwise permitted to charge under its
existing tariff. Requests by AT&T's customers to send traffic
to Audiobridge via Total do not constitute ``reasonable
requests'' for service for purposes of section 201(a), because
they would require AT&T to purchase access service that we
have previously determined is unreasonably priced and the
product of a sham arrangement. Thus, we conclude that section
201(a) does not require AT&T to purchase Total's terminating
access services or to refrain from blocking calls to
Audiobridge.50 Accordingly, we deny Count One of the
2. Section 251(a) Does Not Require AT&T To Complete Calls
22. Complainants argue that section 251(a)(1) of the Act
requires AT&T to purchase Total's terminating access services
and refrain from blocking calls to Audiobridge.51 Section
251(a) states, in pertinent part, that ``[e]ach
telecommunications carrier has the duty . . . to interconnect
directly or indirectly with the facilities and equipment of
other telecommunications carriers.''52 Complainants argue
that Atlas, Total, and AT&T are all telecommunications
carriers within the meaning of section 251(a), and that,
therefore, AT&T must interconnect with Total.53 Furthermore,
Complainants argue that a carrier's duty to ``interconnect''
under section 251(a) encompasses a duty to transport and
terminate all traffic bound for any other carrier with which
it is physically linked.54 According to Complainants, in
order to meet this obligation, AT&T has the legal duty under
section 251(a) to purchase Total's access services at Total's
tariffed rates for those services, and deliver to Total all
calls made by AT&T's customers to Audiobridge.55
23. Complainants base their argument on an erroneous
interpretation of the term ``interconnect'' in section
251(a)(1). We have previously held that the term
``interconnection'' refers solely to the physical linking of
two networks, and not to the exchange of traffic between
networks. In the Local Competition Order, we specifically
drew a distinction between ``interconnection'' and ``transport
and termination,'' and concluded that the term
``interconnection,'' as used in section 251(c)(2),56 does not
include the duty to transport and terminate traffic.57
Accordingly, section 51.5 of our rules specifically defines
``interconnection'' as ``the linking of two networks for the
mutual exchange of traffic,'' and states that this term ``does
not include the transport and termination of traffic.''58
24. Complainants argue that the term ``interconnection'' has a
different meaning in section 251(a) than in section 251(c).59
According to Complainants, section 251(a) blends the concepts
of ``interconnection'' and ``transport and termination,'' and
``the only way for AT&T and [Total] to interconnect under
Section 251(a)(1) is for AT&T to purchase [Total]'s services
at its tariffed rate.''60
25. We find nothing in the statutory scheme to suggest that
the term ``interconnection'' has one meaning in section 251(a)
and a different meaning in section 251(c)(2). The structure
of section 251 supports this conclusion. Section 251(a)
imposes relatively limited obligations on all
telecommunications carriers; section 251(b) imposes moderate
duties on local exchange carriers; and section 251(c) imposes
more stringent obligations on incumbent LECs. Thus, section
251 of the Act ``create[s] a three-tiered hierarchy of
escalating obligations based on the type of carrier
involved.''61 As explained above, section 251(c) does not
require incumbent LECs to transport and terminate traffic as
part of their obligation to interconnect. Accordingly, it
would not be logical to confer a broader meaning to this term
as it appears in the less-burdensome section 251(a).
26. Furthermore, among the subparts of this provision, section
251(b)(5) establishes a duty for all local exchange carriers
to ``establish reciprocal compensation arrangements for the
transport and termination of telecommunications.''62 Local
exchange carriers, then, are subject to section 251(a)'s duty
to interconnect and section 251(b)(5)'s duty to establish
arrangements for the transport and termination of traffic.
Thus, the term interconnection, as used in section 251(a),
cannot reasonably be interpreted to encompass a general
requirement to transport and terminate traffic. Otherwise,
section 251(b)(5) would cease to have independent meaning,
violating a well-established principle of statutory
construction requiring that effect be given to every portion
of a statute so that no portion becomes inoperative or
meaningless.63 Moreover, section 252 of the Act indicates
that ``interconnection'' and ``transport and termination'' are
separate and distinct duties.64 Section 252 establishes a
process for the negotiation and arbitration of intercarrier
agreements, and this process involves separate pricing
standards for interconnection on the one hand, and for
transport and termination of traffic on the other.65 It would
be difficult to reconcile these separate pricing standards if
the requirement to interconnect incorporated a requirement to
transport and terminate traffic.
27. In sum, we conclude that section 251(a) does not require
AT&T to purchase Total's terminating access services and
refrain from blocking calls to Audiobridge. Section 251(a)
only requires AT&T to provide direct or indirect physical
links between itself and Complainants. Accordingly, we deny
Count Two of the Complaint.
3. Section 214(a) Does Not Require AT&T To Complete Calls
28. In Count Three of their Complaint, Complainants argue that
AT&T violated section 214(a) by discontinuing service to
Audiobridge without the prior consent of the Commission.66
Section 214(a) provides, in pertinent part: ``No carrier
shall discontinue, reduce, or impair service to a community,
or part of a community, unless and until there shall first
have been obtained from the Commission a certificate that
neither the present nor future public convenience and
necessity will be adversely affected.''67 Complainants assert
that the ``discontinuance of service'' provision of section
214(a) applies to intercarrier connections, and not just to
connections between carriers and their end users.68 Moreover,
Complainants argue that the section 214(a) certification
requirement applies to non-dominant carriers like AT&T, and
even when other competing carriers are providing the same or
similar service through the use of access codes.69
29. We conclude that AT&T was not required to obtain section
214(a) authorization before discontinuing its service of
terminating calls to Total. Although Complainants are correct
that a non-dominant carrier must receive a section 214
certification prior to terminating an inter-carrier connection
that will result in discontinuing, reducing, or impairing
service to a community or part of a community, we find that
``service to a community or part of a community'' has not been
discontinued, reduced, or impaired in this instance. We
accept AT&T's uncontroverted assertions that it continues to
complete calls to all residents and businesses in Big Cabin,
Oklahoma other than Audiobridge. In other words, AT&T
completes all calls that are placed pursuant to lawful access
30. There is no evidence that AT&T has discontinued service to a
``community, or part of a community'' as is necessary to
trigger section 214 authorization. AT&T's decision to
discontinue service to Total has affected only one end user,
Audiobridge; AT&T continues to originate and terminate traffic
to all other residents and businesses in Big Cabin, Oklahoma.
Complainants have failed to demonstrate that Audiobridge
constitutes a ``community or part of a community'' for
purposes of section 214. Based on the record before us, such
a population of one end user does not comprise a community, or
even a part of a community, as those terms are commonly
understood.70 Concluding otherwise would not only contradict
the plain language of the statute, but also cause absurdly
burdensome results. For example, a carrier would require a
section 214 certification prior to terminating service to a
single customer due to the not-uncommon occurrence of
nonpayment of bills. This would unduly undermine a carrier's
ability to take appropriate action in response to a customer's
unwarranted failure to pay for service.71 Section 214
requires the Commission to consider the impact that
discontinuation of a service will have on a community, or a
portion of a community, not the impact such discontinuation
will have on an individual subscriber.
31. AT&T's conduct surely has had a significant financial impact
on Total, but such an impact on Total is irrelevant under
section 214. Rather, the relevant focus is the impact on the
community of end-users. As the Commission has previously
In determining the need for prior authority to
discontinue, reduce or impair service under
Section 214(a), the primary focus should be on the
end service provided by a carrier to a community
or part of a community, i.e., the using public.
Thus, in situations where one carrier attempts to
invoke Section 214(a) against another carrier,
concern should be had for the ultimate impact on
the community served rather than on any technical
or financial impact on the carrier itself.72
Here, the ultimate impact on the community served is minimal
because, as stated above, AT&T continues to complete calls to
all residents and businesses in Big Cabin, Oklahoma other than
Audiobridge. To the extent that Audiobridge has legitimate
communications needs, there is no reason it cannot make
alternative lawful arrangements that would enable it to use AT&T
or any other IXC. Accordingly, we deny Count Three of the
4. Section 202(a) Does Not Require AT&T To Complete Calls
32. In Count Four of their Complaint, Complainants argue that
AT&T is violating section 202(a) of the Act by blocking calls
to Audiobridge.73 Section 202(a) of the Act makes it unlawful
``for any common carrier to make any unjust or unreasonable
discrimination in charges, practices, . . . facilities, or
services, . . . or to make or give any undue or unreasonable
preference or advantage to any particular person.''74
Complainants argue that, when an AT&T customer places a long
distance call, AT&T has the legal duty to ensure that the call
is carried to completion.75 Complainants contend that AT&T is
unlawfully discriminating against Total and Atlas by refusing
to terminate calls to Audiobridge, while continuing to deliver
access traffic to other local exchange carriers. According to
Complainants, AT&T has no discretion to refuse calls to
specific numbers in areas it has chosen to serve.76 Finally,
Complainants assert that AT&T participates in chat-line
arrangements similar to the one at issue here, so AT&T cannot
lawfully choose to serve some chat lines and not others.77
33. There is a well-established, three-pronged test for
determining whether a carrier's conduct violates the anti-
discrimination provision of section 202(a): (1) whether the
services at issue are ``like''; (2) if the services are
``like,'' whether the carrier treats them differently; and (3)
if the carrier treats the services differently, whether the
difference is reasonable.78 If the complainant in a section
208 proceeding meets its burden of proving like service and
disparate treatment, the burden of proof shifts to the
defendant to prove that the disparate treatment is
34. Even assuming, arguendo, that Complainants have satisfied
their burden of proving the first two prongs of the anti-
discrimination test, Complainants' claim under section 202(a)
fails, because AT&T has satisfied its burden of proving the
reasonableness of the disparate treatment. That is, AT&T has
shown that, under the particular circumstances of this case,
AT&T's allegedly discriminatory conduct was not unreasonable.
We find that AT&T's conduct was perfectly reasonable in view
of the fact that Total and Atlas engaged in an unlawful scheme
to inflate unjustly the access fees charged to AT&T.
35. We have decided that, under the unique circumstances of this
case, AT&T's decisions to discontinue purchasing terminating
access services from Total and to block traffic to Audiobridge
did not violate sections 201, 202, 214, or 251 of the Act.
Our decision does not mean, however, that an IXC has carte
blanche to discontinue purchasing a CLEC's access services at
any time or in any manner it chooses. In pending proceedings,
the Commission will determine (i) what circumstances, if any,
other than the unique ones present here permit an IXC to
discontinue purchasing a CLEC's access services, and (ii) the
procedures an IXC must follow to execute such a
discontinuance, if permitted.80 In the meantime, IXCs should
not view this order as authorizing them unilaterally to block
access traffic whenever they believe that a CLEC's rates are
too high. In addition, we note that AT&T's decision to
discontinue purchasing Total's terminating access services,
and our decision to find AT&T's conduct lawful on the unique
record of this case, do not render Audiobridge inaccessible to
future customers. AT&T is a non-dominant IXC and any party
wishing to reach Audiobridge may ``dial around'' to the
network of another IXC to complete the call. Accordingly,
Count Four of the Complaint is denied.81
D. The Unlawful Nature of the Complainants' Relationship,
Standing Alone, Does Not Make it Unreasonable for Complainants to
Charge a ``Reasonable Amount'' For Complainants' Access Services
Provided Prior to the Blocking of Calls to Audiobridge.
36. In its request for relief, AT&T essentially seeks, inter
alia, an order prohibiting Complainants from charging any
access fees from AT&T. For the reasons described below, we
grant that request in part, and deny it in part.
37. We reject AT&T's argument that the unlawful relationship
between Atlas and Total, in and of itself, makes it
unreasonable for Total to charge anything for the access
services provided to AT&T. Complainants did provide a service
to AT&T, i.e., completing calls from AT&T's customers to
Audiobridge. Moreover, AT&T recovered revenue through
ordinary long-distance rates from its own customers for calls
completed to Audiobridge. Finally, Complainants may not be
able to recover their legitimate costs, if any, through other
means, that they are entitled to recover. Therefore, Total's
unlawful relationship with Atlas, standing alone, does not
preclude Complainants from charging ``reasonable'' access
charges from AT&T.82
38. Given the particular circumstances of this case, we conclude
that a reasonable access charge is the fee that Atlas would
have charged AT&T for terminating traffic directly to
Audiobridge, had Total never existed.83 We so conclude
because (1) Total and Atlas were effectively the same entity,
(2) Total serves the same territory as Atlas, simply providing
service to a single customer in that territory, and (3) the
record contains no evidence that Atlas' rate (which was a NECA
rate), had it been charged, would have been unreasonably high
or low. Consequently, we grant AT&T's request for relief as
against Complainants such that Total may not charge AT&T
access fees in any amount exceeding the amount that Atlas
would have charged AT&T for the same services.
39. We reject, however, AT&T's request for an order precluding
Total from attempting to charge anything more than a fraction
of a penny per minute for its terminating access services.84
AT&T argues that Total is actually a dominant carrier and, as
a result, should have based its rates on its actual costs and
traffic volume, in accordance with the Commission's dominant
carrier rate-of-return regulations.85 AT&T calculates that
compliance with these regulations would have reduced Total's
access rates to approximately one-tenth of one penny per
minute.86 We have already held that Total is an alter-ego of
Atlas, rather than a separate entity, for the purpose of
determining a reasonable access rate. Accordingly, it is not
appropriate to calculate a reasonable fee based on Total's
costs and revenues; instead, it is Atlas' experience, had
Total not existed, that is relevant. Here, however, Atlas
subscribed to the NECA tariff, which pools the experience of a
large number of carriers nationwide to determine the
appropriate rates for those carriers. One important feature
of the NECA tariffing process is that, due to the large number
of participating carriers, a sudden increase or decrease in
costs or traffic by one carrier will have a marginal, if any,
impact on the rates filed by NECA. There is no evidence in
the record that, absent the existence of Total, Atlas would
have filed its own tariff instead of subscribing to the NECA
tariff. Moreover, there is no evidence in the record that,
had the additional traffic generated by Audiobridge been
attributed to Atlas rather than Total, the NECA rate to which
Atlas subscribed would have decreased.87
40. Finally, AT&T also seeks damages from Atlas equaling the
charges that AT&T paid to Atlas for ``tandem switched
transport.''88 But for its unlawful relationship with Total,
Atlas would not have charged AT&T anything at all for tandem
switched transport to Total; instead, Atlas would have charged
AT&T only for terminating access directly to Audiobridge.
Thus, we grant AT&T's request for damages as against Atlas in
the amount that AT&T paid to Atlas for tandem switched
transport, plus interest.89
E. AT&T's Remaining Counterclaims Are Rejected.
1. AT&T's Claims That the Relationship Between Total
and Audiobridge Violates Sections 228 and Section
201(b) of the Act Are Dismissed as Moot.
41. In Counts I and III of its Counterclaim, AT&T argues that
the revenue-sharing arrangement between Total and Audiobridge
violates sections 228 and 201(b) of the Act.90 We dismiss
these claims as moot, without prejudice. Even assuming,
arguendo, that we were to find that Complainants violated
either section 228 or 201(b) of the Act, AT&T would still not
be entitled to any relief that has not already been awarded.
This is because Complainants' alleged violation of section
201(b) or section 228 of the Act, standing alone, would not
vitiate AT&T's obligation to pay a reasonable access charge
for services already provided. Accordingly, Counts I and III
of AT&T's Counterclaim are dismissed as moot, without
2. AT&T's Claim That Total's Tariff Precludes Total
from Attempting to Prevent AT&T's Blocking Is Dismissed
42. In Count IV of its Counterclaim, AT&T asserts that
Total's attempts to prevent AT&T from refusing to purchase
Total's access service violate Total's tariff, because Total's
tariff permits AT&T to cancel service with thirty day's
notice.91 Given that we have already denied Total's attempt
to prevent AT&T from refusing to purchase Total's access
service, we dismiss as moot Count IV of AT&T's Counterclaim,
3. AT&T's Claims that the Applicable Tariffs Erroneously
Describe the Services at Issue are Dismissed as Moot.
43. In Counts V through IX of its Counterclaim, AT&T alleges
that Atlas and Total violated sections 201(b) and 203 of the
Act by assessing charges for services not accurately described
in their tariffs.92 It is well established that a purchaser
of telecommunications services is not absolved from paying
for the rendered services solely because the services
furnished were not properly encompassed by the carrier's
tariff (where, as here, the provider has no other means of
attempting to obtain compensation).93 Thus, even assuming,
arguendo, that Atlas' and Total's tariffs do not accurately
describe the services provided by them to AT&T, AT&T's claims
in Counts V - IX are moot, because in response to Count II we
have awarded AT&T all of the relief to which it would be
entitled under Counts V - IX: an order (1) precluding Total
from attempting to collect any amount greater than the amount
that Atlas would have charged for the same service under its
tariff, and (2) requiring Atlas to pay damages to AT&T in the
amount that AT&T paid Atlas for tandem switching services,
plus interest. Thus, we dismiss as moot Counts V through IX
of AT&T's Counterclaim, without prejudice.
4. Total's Refusal to Pay AT&T's Attorney's Fees and
Costs In the Court Actions Does Not Violate Total's
44. In Count X of its Counterclaim, AT&T alleges that Total has
unlawfully refused AT&T's request for legal costs and fees
incurred by AT&T while defending the underlying federal court
actions.94 AT&T points out that, under Total's tariff, in any
action to enforce the tariff, ``the prevailing party shall be
entitled to recover its legal fees and court costs from the
non-prevailing party.''95 According to AT&T, it was the
``prevailing party'' in the court actions described above,
because the courts denied Total's requests for preliminary
injunctive relief and granted AT&T's requests for referral to
the Commission under the primary jurisdiction doctrine.96
45. We disagree with AT&T. Even assuming that we have authority
to enforce a tariff provision regarding the payment of legal
fees and costs, we are not convinced that the tariff provision
was triggered. In the absence of any evidence in the record
regarding the meaning of the term ``prevailing party'' in
Total's tariff, we construe the term to mean a party that
obtains in its favor a final, unappealable order resolving the
dispute at issue. AT&T did not previously obtain such an
order regarding the dispute at issue here. The court
decisions merely denied Total's requests for preliminary
relief and referred the dispute to the Commission for further
adjudication. Because the court decisions do not make AT&T a
``prevailing party'' within the meaning of Total's tariff, we
deny Count X of AT&T's Counterclaim.
IV. MISCELLANEOUS MATTERS
46. Total's Petition for Immediate Restoration of Connection,
filed November 1, 1996, is denied for the reasons discussed
above. AT&T's Motion to Dismiss or for Judgment on the
Pleadings, filed December 24, 1996, and Total's Motion to
Dismiss Cross Claim, filed January 25, 1997, are denied as
moot. Total's Motion to Accept Supplement to Record, filed
April 11, 1997, concerning evidence that AT&T itself has
provided teleconferencing services of the kind it opposes in
this proceeding, is granted. Total's Motion to Accept
Supplement to Record, filed December 3, 1997, concerning
AT&T's alleged inconsistent representations to the California
Public Utilities Commission on the issues of blocking and
interconnection, is granted.
V. ORDERING CLAUSES
47. ACCORDINGLY, IT IS ORDERED, pursuant to sections 1, 4(i),
4(j), 201, 202, 206, 207, 208, 214, and 251 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151,
154(i), 154(j), 201, 202, 206, 207, 208, 214, 251, that the
above-captioned complaint filed by Total IS DENIED IN ITS
48. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j),
201, 203, 206, 207, 208, 212, 214, and 228 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151,
154(i), 154(j), 201, 203, 206, 207, 208, 212, 214, 228, that
the cross complaint filed by AT&T IS GRANTED IN PART,
DISMISSED IN PART WITHOUT PREJUDICE, AND DENIED IN PART to the
extent specified herein.
49. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j),
201(b), 206, 207, 208, and 209 of the Communications Act of
1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 201(b), 206,
207, 208, and 209, that Atlas shall pay AT&T damages in the
amount that AT&T paid to Atlas for tandem switched transport
for calls ultimately routed to Total, plus prejudgment
interest computed from November 22, 1995 to the date of
release of this Order at the appropriate I.R.S. rate for
corporate overpayments. Atlas shall pay this amount to AT&T
within 90 days of the date of release of this Order.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
1 47 U.S.C. § 208.
2 47 U.S.C. § 201(b).
3 Total Telecommunications Services, Inc., and Atlas
Telephone Company, Inc. v. AT&T Corp., Answer and Cross Complaint
of AT&T Corp., File No. E-97-03 (filed Dec. 24, 1996) at 30, ¶ 5
(Answer); Total Telecommunications Services, Inc., and Atlas
Telephone Company, Inc. v. AT&T Corp., Answer to Cross Complaint,
File No. E-97-03 (filed Jan. 17, 1997) at 2, ¶ 5 (Answer to Cross
Complaint); Total Telecommunications Services, Inc. and Atlas
Telephone Company, Inc. v. American Telephone and Telegraph
Company, Inc., 919 F. Supp. 472, 475-6 (D.D.C. 1996) (Total and
Atlas v. AT&T), aff'd mem., No. 96-7043 (D.C. Cir. 1996). See
also Total Telecommunications Services, Inc., and Atlas Telephone
Company, Inc. v. AT&T Corp., Brief of AT&T Corp., File No. E-97-
03 (filed July 7, 1997) at 1 (AT&T Brief).
4 Total Telecommunications Services, Inc., and Atlas
Telephone Company, Inc. v. AT&T Corp., Complaint, File No. E-97-
03 (filed Oct. 18, 1996) at 12, ¶ 64 (Complaint); Answer at 10, ¶
64. FN12. Pursuant to the Commission's rules, NECA prepares and
files access charge tariffs on behalf of ``all telephone
companies that do not file separate tariffs or concur in a joint
access tariff of another telephone company for all access
elements.'' 47 C.F.R. § 69.601(a). Each participating company
charges the rates appearing in those tariffs, pools its revenues
with other participants, and receives an amount equal to its
costs and its pro rata share of all earnings.
5 Complaint at 2, 5-6, ¶¶ 4, 7, 23-24.
6 Total and Atlas v. AT&T, 919 F. Supp. at 476, 482.
7 AT&T Brief at 11; Answer at 30, ¶ 6; Answer to Cross
Complaint at 2, ¶ 6; Total Telecommunications Services, Inc., and
Atlas Telephone Company, Inc. v. AT&T Corp., Total
Telecommunications, Inc. Response To Interrogatories, File No. E-
97-03, Response to Interrogatory No. 4 (Total's Response To
Interrogatories) (describing the loan to Total from Atlas'
pension fund); Total and Atlas v. AT&T, 919 F. Supp. at 475-6,
8 Complaint at 2, ¶ 6; Answer at 2, ¶ 6.
9 Answer at 32-33, 34, ¶¶ 13, 16; AT&T Brief at 11. A
carrier that has been found by the Commission to have market
power (i.e., the power to control prices) is considered
``dominant.'' 47 C.F.R. § 61.3(o). All others are classified
``non-dominant.'' Pursuant to section 61.23(c) of the
Commission's rules then in effect, ``[a]ll tariff filings of
domestic and international non-dominant carriers must be made on
at least one day's notice.'' 47 C.F.R. § 61.23(c) (1995).
Tariffs for dominant carriers, however, were not effective until
30 days after filing. 47 C.F.R. § 61.59(a) (1995).
10 AT&T Brief at 6. See also Total Telecommunications
Services, Inc., and Atlas Telephone Company, Inc. v. AT&T Corp.,
Reply Brief of TTS/Atlas, File No. E-97-03 (filed July 28, 1997)
at 9 (Complainants' Reply) (citing AT&T's assertion that Total's
terminating access rates are 27% higher than those of Atlas, and,
while not confirming this figure, admitting that Total's rates
are ``justifiably higher'' that Atlas'). In early pleadings,
AT&T alleged that Total's rates were ten times higher than those
of Atlas, but it subsequently modified that claim. See, e.g.,
Total Telecommunications Services, Inc., and Atlas Telephone
Company, Inc. v. AT&T Corp., Motion of AT&T Corp. To Dismiss or
For Judgment on the Pleadings, File No. E-97-03 (filed Dec. 24,
1996) at 3 (AT&T's Motion to Dismiss).
11 Total Telecommunications Services, Inc., and Atlas
Telephone Company, Inc. v. AT&T Corp., Brief of Total
Telecommunications, Inc. and Atlas Telephone Company, Inc., File
No. E-97-03 (filed July 7, 1997) at 3 (Complainants' Brief); AT&T
Brief at 2; Total and Atlas v. AT&T, 919 F. Supp. at 475. See
also Transcript of Oral Argument, May 6, 1999, at 6-7 (Tr.).
12 Complaint at 6, ¶ 29; Complainants' Brief at 3; AT&T
Brief at 2,5.
13 Complaint at 6, ¶ 29; Complainants' Brief at 3; Tr. at
11. See also Total and Atlas v. AT&T, 919 F.Supp. at 475 n.4.
14 See AT&T Brief at 6.
15 See, e.g., Total Telecommunications Services, Inc., and
Atlas Telephone Company, Inc. v. AT&T Corp., Opposition To Motion
of AT&T To Dismiss or For Judgment On The Pleadings, File No. E-
97-03 (filed Jan. 14, 1997) at 14; Complainants' Reply at 2.
16 Complaint at 8, ¶ 40; Answer at 5, ¶ 40; Total's
Response To Interrogatories, Response to Interrogatory No. 11.
17 Total's Response To Interrogatories, Response to
Interrogatory No. 1.
18 AT&T Brief at 2, 6.
19 Complaint at 8-11, ¶¶ 41-52; Answer at 5-8, ¶¶ 41-52.
AT&T apparently ordered additional trunks from Atlas, instead of
from Total, because AT&T was not directly interconnected with
Total. Once AT&T delivered this traffic to Atlas' facilities,
Atlas was obliged to transfer it to Total's end office. AT&T
denies, however, that it intended to use these additional trunks
exclusively to carry calls to Total. Answer at 7, ¶ 49.
20 Complaint at 11, ¶ 52; Complainants' Brief at 17. AT&T
responds that it is ``without knowledge'' on this issue, but does
not dispute this allegation. Answer at 8, ¶ 52.
21 Complaint at 11, ¶ 56; Answer at 8, ¶ 56.
22 Complaint at 12, ¶ 63; Answer at 9, ¶ 63.
23 Complaint at 14, ¶ 70; Answer at 11, ¶ 70.
24 Complaint at 14-15, ¶¶ 72-74; Answer at 11, ¶¶ 72-74.
See Answer at Attachment 8 (Nov. 7, 1995 Letter from Debbie H.
Joyce, AT&T Corporation, to Dick Segress, President, Total
25 Complaint at 15-16, ¶¶ 74-81; Answer at 11-13, ¶¶ 74-
81. See also Complainants' Brief at 4. Audiobridge thereafter
began utilizing other telephone numbers through Total, which were
not blocked by AT&T. It is unclear from the record whether, or
how much, AT&T paid for the associated access charges for calls
to these new numbers. See Transcript of Oral Argument, May 6,
1999, at 9-10 (Tr.). AT&T states that it was unaware of these
calls going to Total and Audiobridge until Total disclosed that
fact in the instant formal complaint. AT&T thereupon requested
Total to cease using that exchange number and any future new
exchange numbers for Audiobridge's services, and stated that it
would not pay associated access charges for such service. Total
Telecommunications Services, Inc., and Atlas Telephone Company,
Inc. v. AT&T Corp., Reply Brief of AT&T Corp., File No. E-97-03
(filed July 28, 1997) at 7 n.5, Attachment B (AT&T Reply).
26 Complaint at 16, ¶ 85. See also Total and Atlas v.
AT&T, 919 F.Supp. at 476; Complainants' Brief at 17.
27 Answer at 42-44, ¶¶ 53-65; Total and Atlas v. AT&T, 919
F.Supp. at 776. See also Tr. at 34.
28 Complainants initially pursued relief in federal
courts. First, Total brought suit against AT&T on November 24,
1995 in the United States District Court for the Northern
District of Oklahoma. Complaint at 23-24, ¶ 128; Answer at 18, ¶
128. This suit alleged violations of the Communications Act and
sought preliminary injunctive relief and damages. After denying
a preliminary injunction, the court referred the case to this
Commission on November 30, 1995 pursuant to the primary
jurisdiction doctrine. Total and Atlas v. AT&T, 919 F.Supp. at
477. Instead of pursuing the referral, Complainants
``voluntarily dismissed'' the action. Complaint at 24, ¶ 131;
Answer at 18-19, ¶ 131. On December 13, 1995, immediately after
entry of the dismissal order, Complainants filed a similar
complaint before the United States District Court for the
District of Columbia. On February 29, 1996, that court denied
Complainants' requests for both a temporary restraining order and
a preliminary injunction and referred the matter to this
Commission under the doctrine of primary jurisdiction. Total and
Atlas v. AT&T, 919 F.Supp. at 483-4. Furthermore, the court
dismissed, rather than stayed, the action before it. Id.
Complainants appealed the referral order to the United States
Court of Appeals for the District of Columbia Circuit, which
affirmed the district court's opinion in an unpublished
memorandum order issued on October 4, 1996. Total
Telecommunications Services, Inc. and Atlas Telephone Company,
Inc. v. American Telephone and Telegraph Company, Inc., aff'd
mem., No. 96-7043 (D.C. Cir. Oct. 4, 1996). Ten days later,
Complainants filed the instant complaint pursuant to the D.C.
District Court's referral order.
29 47 U.S.C. §§ 201(a), 202(a), 214(a), 251(a).
30 47 C.F.R. § 1.722 (1997).
31 Although nominally captioned as a cross-complaint, we
note that AT&T's pleading is essentially a counterclaim, and will
be referred to as such throughout the remainder of this order.
32 47 C.F.R. Part 61.
33 47 C.F.R. §§ 64.1501-64.1515.
34 47 U.S.C. § 228.
35 47 U.S.C. § 203.
36 Answer at 44-45, 46, 47, ¶¶ 66, 73, 78.
37 Answer at 51.
38 Answer at 39-40, ¶¶ 35-40.
39 Answer at 39-40, ¶ 37; AT&T's Motion to Dismiss at 21-
22; AT&T Brief at 11.
40 AT&T Brief at 12 (citing Policies and Rules Concerning
Rates for Competitive Common Carrier Service and Facilities
Authorized Therefor, Fourth Report and Order, 95 F.C.C.2d 554,
41 AT&T Brief at 3-4, 11; Answer at 30, ¶ 6; Answer to
Cross Complaint at 2, ¶ 6;Total's Response To Interrogatories,
Response to Interrogatory No. 4 (describing the loan to Total
from Atlas' pension fund); Total and Atlas v. AT&T, 919 F. Supp.
at 475-6, 482.
42 Complaint at 19, ¶ 103; Complainants' Reply at 3-4.
Specifically, Complainants assert that AT&T ``appeared before the
Oklahoma Corporation Commission on [Total]'s application for
local exchange service to raise questions regarding [Total]'s
financial qualifications that ultimately forced [Total] to
withdraw its application for the time being.'' Complaint at 19,
¶ 103. AT&T admits that it appeared before the Oklahoma
Corporation Commission and opposed Total's application, but
denies Total's characterization of the ultimate effect of this
presentation. Answer at 16, ¶ 103.
43 Complainants' Reply at 3.
44 Total Telecommunications Services, Inc., and Atlas
Telephone Company, Inc. v. AT&T Corp., Opposition To Motion of
AT&T To Dismiss or For Judgment On The Pleadings, File No. E-97-
03 (filed Jan. 14, 1997) at 9-10.
45 Complaint at 20-21, ¶¶ 105-112. See also Complaint at
27-38, ¶¶ 143-173; Complainants' Brief at 5-7; Complainants'
Reply at 6-7.
46 47 U.S.C. § 201(a) (emphasis added).
48 47 U.S.C. § 201(a). See Complaint at 28-32, ¶¶ 143-
157; Complainants' Brief at 6-7.
49 Complaint at 28, ¶ 146.
50 Our ruling should not be construed to address the
broader question of what other circumstances might permit an IXC
to refuse to purchase, or discontinue purchasing, access service
from a competitive LEC. That is an issue about which the
Commission has previously sought comment, and it is currently
under consideration. See Access Charge Reform, Fifth Report &
Order & Further Notice of Proposed Rulemaking, 14 FCC Rcd 14221,
14342, ¶ 242 (1999).
51 Complaint at 21, 39, ¶¶ 113-115, 176.
52 47 U.S.C. § 251(a).
53 Complainants' Brief at 8; Complainants' Reply at 8.
54 See, e.g., Complainants' Brief at 10 (stating that
``AT&T must cease blocking calls to [Total] under section 251(a)
¾ it must interconnect.'').
55 Complaint at 38-41, ¶¶ 174-180; Complainants' Brief at
7-10; Complainants' Reply at 7-9.
56 47 U.S.C. § 251(c)(2) (requiring incumbent LECs
to provide interconnection to any requesting telecommunications
carrier at any technically feasible point and on rates, terms,
and conditions that are just, reasonable, and nondiscriminatory).
57 Implementation of the Local Competition Provisions in
the Telecommunications Act of 1996, First Report and Order, 11
FCC Rcd 15499, 15590, ¶ 176 (1996) (Local Competition Order),
aff'd in relevant part, Competitive Telecommunications Ass'n v.
FCC, 117 F.3d 1068 (8th Cir. 1997)(CompTel v. FCC); aff'd in
part, vacated in part, Iowa Utilities Bd. v. FCC, 120 F.3d 753
(8th Cir. 1997); cert. granted, AT&T Corp. v. Iowa Utilities Bd.,
522 U.S. 1089 (1998); aff'd in part, reversed in part, AT&T Corp.
v. Iowa Utilities Bd., 525 U.S. 366 (1999), opinion after remand,
Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, Order, 14 FCC Rcd 5263 (1999)
(subsequent history omitted).
58 47 C.F.R. § 51.5.
59 Complainants' Reply at 8.
60 Id. at 8-9.
61 Guam Public Utilities Commission Petition for
Declaratory Ruling concerning Sections 3(37) and 251(h) of the
Communications Act, Declaratory Ruling and Notice of Proposed
Rulemaking, 12 FCC Rcd 6925, 6937-38 ¶ 19 (1997).
62 47 U.S.C. § 251(b)(5).
63 See, e.g., Cablevision Systems Development Company v.
Motion Picture Association Of America, Inc., 836 F.2d 599, 610
(D.C. Cir. 1988); Norfolk & W. Ry. v. United States, 768 F.2d
373, 379 (D.C.Cir.1985), cert. denied, 479 U.S. 882 (1986).
64 47 U.S.C. § 252.
65 Compare 47 U.S.C. § 252(d)(1) with 47 U.S.C. §
66 Complaint at 21-22, ¶¶ 116-120; Complainants' Brief at
67 47 U.S.C. § 214(a).
68 Complaint at 43-44, ¶¶ 186-87; Complainants' Brief at
69 Complainants' Brief at 12-13.
70 Cf. Applications for Authority Pursuant to Section 214
of the Communications Act of 1934 to Cease Providing Dark Fiber
Service, Memorandum Opinion and Order, 8 FCC Rcd 2589, 2597 ¶ 38
& n.94 (1993) (noting that ``community'' can also ``include an
economic community of users, such as international record
carriers or domestic satellite carriers''). See also Inquiry
Into Problems of Public Coast Radiotelegraph Stations, Memorandum
Opinion and Order, 67 FCC 2d 790, 794 ¶ 9 & n.15 (1978) (same).
71 We need not ¾ and do not ¾ decide here whether AT&T
would need section 214 authorization under similar circumstances
before discontinuing service to more than one customer.
72 Western Union Tel. Co., Memorandum Opinion and Order,
74 FCC 2d 293, 296 (1979).
73 Complaint at 22-23, ¶¶ 121-127; Complainants' Brief at
74 47 U.S.C. § 202(a).
75 Complaint at 47, ¶ 195; Complainants' Brief at 20.
77 Complainant's Brief at 20-23; Complainants' Reply at 3.
78 See, e.g., MCI Telecommunications Corp. v. FCC, 917
F.2d 30, 39 (D.C. Cir. 1990); Allnet Communications Serv., Inc.
v. US West, Inc., 8 FCC Rcd 3017, 3025, ¶ 38 n.87 (1993).
79 See, e.g., Competition in the Interstate Interexchange
Marketplace, 6 FCC Rcd 5880, 5903, ¶ 131-32 (1991); PanAmSat
Corp. v. Comsat Corp., 12 FCC Rcd 6952, 6965, ¶ 34 n.90 (1997);
C.F. Communications Corp. v. Michigan Bell Tel. Co., 12 FCC Rcd
2134, 2141-42, ¶ 15 n.47 (1997); The People's Network Inc. v.
American Tel. & Tel., 12 FCC Rcd 21081, 21093, ¶ 25 n.72 (Com.
Car. Bur. 1997).
80 Access Charge Reform, Fifth Report and Order and
Further Notice of Proposed Rulemaking, 14 FCC Rcd 14221 (1999).
See also Commission Asks Parties to Update and Refresh Record on
Mandatory Detariffing of CLEC Interstate Access Services, Public
Notice, 15 FCC Rcd 10181 (Com. Car. Bur. 2000); Common Carrier
Bureau Seeks Comment on the Request for Emergency Temporary
Relief of the Minnesota CLEC Consortium and the Rural Independent
Competitive Alliance Enjoining AT&T Corp. from Discontinuing
Service Pending Final Decision, Public Notice, 2000 WL 217601
(Com. Car. Bur. rel. May 15, 2000).
81 Complainants also allege, and AT&T admits, that callers
who dial Audiobridge receive AT&T's standard error message:
``Your call cannot be completed as dialed. Please check the
number and dial again.'' Complainants' Brief at 23; Answer at
15-16, ¶ 99. AT&T also admits that its operators state that
calls to Audiobridge ``are being restricted from receiving calls
from AT&T due to a service problem.'' Answer at 15-16, ¶ 99;
AT&T Reply at 9. Complainants do not state a claim for relief
arising from this conduct. Nevertheless, we note that AT&T's
conduct is potentially problematic to the extent that the
messages misstate (or omit) the reason that such calls cannot be
82 We note that, although Complainants' complaint refers
to AT&T's failure to pay certain access charges incurred before
AT&T began blocking calls to Audiobridge, Complaint at 16, ¶ 85,
the complaint does not state a claim for relief based on that
conduct. Instead, all of Complainants' claims for relief only
concern AT&T's blockage of calls to Audiobridge. Thus, we have
no basis on which to award pre-blocking damages to Complainants,
either in this order or in response to a supplemental complaint
83 According to Complainants, Atlas' per-minute
terminating access fee was $0.0663. See Tr. at 81.
84 Total Telecommunications Services, Inc., and Atlas
Telephone Company, Inc. v. AT&T Corp., AT&T Notice of
Supplemental Authorities, File No. E-97-03 (filed May 26, 1999)
85 47 C.F.R. §§ 61.31-61.59.
86 Id. at 10.
87 Because we grant AT&T's claim in Count II that Total's
relationship with Atlas violates section 201(b) of the Act, we
need not and do not reach the issue raised in Count I of whether
Total's relationship with Atlas also violates the Commission's
dominant carrier regulations (47 C.F.R. Part 61) and section 212
of the Act, 47 U.S.C. § 212. See Answer at 37-38, ¶¶ 28-30; AT&T
Brief at 11-14.
88 Answer at 42-45, ¶¶ 53-66; AT&T's Motion to Dismiss at
89 The parties must compute interest on the total amount
of tandem switched transport charges paid by AT&T to Atlas for
calls routed to Total, and covering the time period beginning
November 22, 1995 (the date that AT&T began blocking calls to
Total) and concluding on the date Atlas provides full payment to
AT&T. To calculate the amount of accrued interest, the parties
shall use the appropriate I.R.S. rate for corporate overpayments.
See, e.g., Rainbow Programming Holdings, Inc. v. Bell Atlantic-
New Jersey, Inc. and Bell Atlantic Network Services, Inc.,
Memorandum Opinion and Order, 15 FCC Rcd 11754, 11763, ¶ 26
(2000); MCI Telecom. Corp. v. Pacific Northwest Tel. Co.,
Memorandum Opinion and Order, 8 FCC Rcd 1517, 1529-30, ¶¶ 46-48
90 Answer at 37-38, 40-41, ¶¶ 27-34, 41-48; AT&T Brief at
23; AT&T's Motion to Dismiss at 20-24.
91 Answer at 41-42, ¶¶ 49-52.
92 Answer at 42-48, ¶¶ 53-89; AT&T Brief at 24-25; AT&T
Reply at 8.
93 See New Valley Corp. v. Pacific Bell, Memorandum
Opinion and Order, 15 FCC Rcd 5128, 5132-33, ¶ 10 (2000),
affirming New Valley Corp. v. Pacific Bell, Memorandum Opinion
and Order, 8 FCC Rcd 8126, 8127, ¶ 8 (Com.Car.Bur. 1993).
94 Answer at 48-50, ¶¶ 90-99.
95 Total Telecommunications Services, Inc., and Atlas
Telephone Company, Inc. v. AT&T Corp., Opposition of AT&T Corp.
to Motion to Dismiss, File No. E-97-03, at 15 (filed Feb. 5,
96 Id. at 16-17.