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


In the Matter of                )
                                )
Total Telecommunications Services, )
     Inc.,                      )
                                )
and                             )
                                )
Atlas Telephone Company, Inc.,  )
                                )
     Complainants,              )
                                )
          v.                    )  File No. E-97-003
                                )
AT&T Corporation,               )
                                )
     Defendant.                    )


                  MEMORANDUM OPINION AND ORDER

     Adopted:  March 8, 2001            Released:  March 13, 2001


By the Commission:

                       I.     INTRODUCTION
                                
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.

                          II.    BACKGROUND

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 
  27 percent.10
      
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 
  Audiobridge.22

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 
  Total's bills.24 

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

                 III.                   DISCUSSION  

A.   Introduction

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 
To Audiobridge.

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  i.e., an AT&T customer  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 
  Complaint.

     2.   Section 251(a) Does Not Require AT&T To Complete Calls 
To Audiobridge.

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 
To Audiobridge.

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 
  charge arrangements.

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 
  indicated:

          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 
Complaint.  

     4.   Section 202(a) Does Not Require AT&T To Complete Calls 
to Audiobridge.

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 
  reasonable.79

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 
  prejudice.

          2.   AT&T's Claim That Total's Tariff Precludes Total 
          from Attempting to Prevent AT&T's Blocking Is Dismissed 
          as Moot.

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, 
  without prejudice.
     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 
          Tariff.

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 
  ENTIRETY.

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
                              Secretary


_________________________

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, 
482.

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 
Telecommunications Inc.).

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, 
575-79 (1983)).  

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).

47        Id.

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) 
 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.  
252(d)(2).

66        Complaint at 21-22,  116-120; Complainants' Brief at 
11-14.

67        47 U.S.C.  214(a).

68        Complaint at 43-44,  186-87; Complainants' Brief at 
11-12.

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  and do not  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 
18-20.

74        47 U.S.C.  202(a).

75        Complaint at 47,  195; Complainants' Brief at 20.

76        Id.

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 
completed.

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 
for damages.

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) 
at 8-10. 

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 
26.

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 
(1993).
 
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, 
1997). 

96        Id. at 16-17.