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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
AT&T Corp., )
) File No. E-97-02
Winback & Conserve Program, )
MEMORANDUM OPINION AND ORDER
Adopted: August 13, 2001 Released: August 23,
By the Commission:
1. In this Memorandum Opinion and Order, we grant in part
and deny in part the formal complaint filed pursuant to section
208 of the Communications Act of 1934, as amended (``Act''),1 by
AT&T Corp. (``AT&T'') against Winback & Conserve Program, Inc.
(``W&C''). AT&T alleges that W&C violated section 201(b) of the
Act2 by changing the 800-number service provider of 40 end users
(``End Users'') from AT&T to W&C without obtaining the End Users'
authorization.3 We find that AT&T has met its burden of proving
that W&C violated section 201(b) by changing the 800-number
service provider of ten of the 40 End Users without
authorization. We also find, however, that AT&T has not met its
burden of proving that W&C improperly changed the 800-number
service provider of the remaining 30 End Users.
A. Factual Background
2. Complainant AT&T is a facilities-based interexchange
carrier (``IXC'') that provides a variety of telecommunications
services, including 800-number service. During the relevant
period, the terms and conditions pursuant to which consumers
subscribed to AT&T's services were set forth in tariffs filed
with the Commission.4
3. Defendant W&C was, through late 1994/early 1995, a non
facilities-based ``reseller'' of interexchange telecommunications
services.5 In 1993, W&C subscribed to AT&T's Customer Specific
Term Plans II for 800-number service (``CSTP II Plans'').6 W&C
resold the 800-number service to third-party end users, including
the 40 End Users at issue here.7 The end users, including the 40
End Users, were W&C's customers.8
4. Through at least late 1994, W&C obtained billing
services as well as 800-number services from AT&T. As a result,
during that period, AT&T billed W&C's customers for W&C's
services.9 The bills sent by AT&T to W&C's customers made no
reference to W&C. Further, these bills were headed ``AT&T 800
READYLINE,'' bore the AT&T globe logo, and instructed customers
to make their checks payable to AT&T and to mail them to AT&T.10
5. W&C acquired customers in two ways. First, it marketed
its services directly to potential customers. Second, it
acquired customers by securing the transfer and assignment of
CSTP II Plans subscribed to by other resellers, thereby also
acquiring the reseller's customers. 11
6. AT&T required that W&C submit certain forms to AT&T
before AT&T would consider an end user to be W&C's customer for
billing and other purposes. When W&C acquired a customer through
its own marketing efforts, AT&T required that W&C submit a form
executed by the end user and bearing W&C's name at the top
(``Subscriber Form'').12 When W&C acquired customers by
purchasing other resellers' CSTP II Plans, AT&T required that W&C
submit a form signed by the assigning reseller (``Transfer
Form''). In this latter situation, according to our record, AT&T
did not require that W&C submit a form signed by the end users
transferred to W&C pursuant to the assignment, and W&C did not
notify these end users of the transfer. Thus, an end user could
become a W&C customer without ever having heard of W&C.13
7. In December 1994, W&C entered into an agreement with
Combined Companies, Inc. (``CCI''), pursuant to which CCI agreed
to a transfer of W&C's CSTP II Plans (and, therefore those Plans'
participants, including the 40 End Users).14 Neither W&C nor CCI
notified the Plans' participants (including the 40 End Users) of
their transfer to CCI.15 W&C states that, after that date, it
ceased to provide interstate telecommunications services.16
8. In about June 1996, AT&T took the position that CCI was
liable to it for ``shortfall charges'' because CCI had not met
its revenue commitments under the CSTP II Plans. AT&T placed
shortfall charges on the bills of CCI's end user customers --
including the 40 End Users at issue here -- in amounts
apportioned according to each end user's usage.17 The 40 End
Users, among others, telephoned AT&T regarding the shortfall
charges, and were informed that the charges had been imposed
because they were CCI customers.18 In July 1996, AT&T informed
CCI that it would remove the shortfall charges from CCI's
customers' bills and charge CCI instead.19 AT&T also sent a
letter to CCI end users stating that it would submit the charges
to CCI.20 The letter also affirmed AT&T's right to charge the
end users, however, and warned that, until CCI paid the charges,
the end users would not receive the discounts they had been
B. This Proceeding
9. AT&T alleges that W&C violated section 201(b) of the
Act by changing the 800-number service provider of the 40 End
Users from AT&T to W&C without obtaining the End Users'
authorization.22 AT&T asks the Commission to declare that W&C
violated section 201(b), and to ``enjoin W&C from engaging in
continued acts or practices in violation of section 201(b).''23
AT&T states that it will file a supplemental complaint for
damages, if appropriate.24
10. AT&T submitted with its complaint 40 certifications
signed under penalty of perjury by employees or owners of the 40
End Users. The certifications were prepared by AT&T following
telephone interviews with a number of CCI end users who contacted
AT&T regarding the shortfall charges on their bills.25 The
certifications are all virtually identical. Each affiant attests
that: (1) the End User initially subscribed to AT&T for 800-
number service; (2) the affiant did not discover that the End
User was a customer of CCI until he/she telephoned AT&T regarding
the shortfall charges; (3) prior to the telephone call with AT&T,
the affiant ``had never heard of CCI or W&C''; and (4) at no time
did the affiant or anyone acting on behalf of the End User
``knowingly authorize a switch ... from AT&T to CCI [or] W&C
11. In its answer, W&C admits that all of the 40 End Users
were once W&C customers, but were all transferred to CCI when W&C
assigned its CSTP II Plans to CCI.27 W&C denies that it changed
the 800-number service provider of any of the 40 End Users from
AT&T to W&C without authorization.28 Additionally, W&C does not
deny that section 201(b) of the Act precludes the unauthorized
switching of an end user's 800-number service provider.29
A. Section 201(b) of the Act Applies to Carrier Subscription
12. We find that changing an end user's 800-number service
provider without authorization violates section 201(b) of the Act
- a conclusion that no party to this proceeding has contested.
While the exact fact pattern now before us has not been
considered previously under section 201(b), the Commission has
considered highly analogous circumstances. The Commission has
relied on section 201 as authority for its regulations aimed at
preventing carriers from changing a consumer's pre-subscribed IXC
(``PIC'') without proper consent. 30 In addition, the Common
Carrier Bureau has held that changing an end user's PIC without
authorization violates section 201(b).31 In doing so, the Bureau
found that the defendant carrier had ``change[d] ... the
designated [PIC] for ... customers in the Phoenix LATA without
the customers' authorization,''32 and that the carrier therefore
had engaged in unjust and unreasonable practices within the
meaning of section 201(b).33 In light of this precedent and the
failure of any party to challenge the application of section
201(b) to these facts, we conclude that section 201(b) prohibits
unauthorized 800-number service provider changes. For purposes
of section 201(b), there are no material differences between
unauthorized PIC changes and unauthorized 800-number service
provider changes. In both circumstances, consumer choice is
violated and competition in the marketplace is undermined. The
Commission has stressed that changing a subscriber's carrier
without the subscriber's consent undermines the competitive
nature of the interexchange marketplace and deprives consumers of
their right to select their telecommunications providers.34
Therefore, to the extent that AT&T can show that W&C switched an
End User's 800-number service provider without the End User's
authorization, AT&T has demonstrated a violation of section
B. With Respect to 30 of the 40 End Users, AT&T Has Not Met Its
Burden of Proving that W&C Unlawfully Changed the 800-Number
Service Provider from AT&T to W&C Without Authorization.
13. It is well established that, in a formal complaint
proceeding, the complainant has the burden of establishing, by a
preponderance of the evidence, that the defendant has violated
the Act.35 For the reasons explained below, we conclude that
AT&T has not met this burden with respect to 30 of the 40 End
Users. Consequently, as to these 30 End Users, AT&T's complaint
14. AT&T's claim fails with respect to 24 of these End
Users because AT&T has not met its burden of proving that these
End User were switched from AT&T by W&C rather than by another
reseller.36 W&C asserts that these 24 End Users became W&C
customers when W&C acquired other resellers' CSTP II Plans.
Therefore, W&C argues, even if these End Users were changed
without their consent, the wrongful conduct was that of another
800-number service provider, not W&C.37
15. AT&T admits that some or all of the End Users may have
been improperly switched from AT&T by a reseller other than W&C.
38 Further, AT&T provides no evidence to rebut W&C's evidence
that the 24 End Users were not switched from AT&T by W&C.39
Accordingly, AT&T has not met its burden of proving that the 24
End Users were switched from AT&T by W&C.
16. AT&T cursorily argues that, even if an End User
were improperly switched by another reseller rather than by W&C,
W&C has nevertheless violated section 201(b), because it is
liable for the acts of its predecessors-in-interest. AT&T cites
no authority, and we are aware of no authority, that would, on
the facts here, render W&C liable under section 201(b) solely
because a reseller from whom it acquired a customer unlawfully
switched that customer.40
17. We also find that AT&T has not met its burden of proof
with respect to another three End Users. 41 The affiants
submitting certifications on behalf of these End Users state that
they were ``solely responsible for the purchase and
administration of [the End User's] business telephone services,''
and that, ``to [their] knowledge'' the End User never switched to
W&C.42 The record does not reveal when these three End Users
became W&C customers, but does establish that W&C began reselling
the CSTP II Plans in 1993.43 The record also establishes that
the affiants for these End Users were not employed by the End
Users in 1993.44 Therefore, it is possible that, in 1993, the
three End Users authorized a switch from AT&T to W&C, but the
affiants themselves aren't aware of the switch because they were
not employed by the End User until later. The affiants would not
subsequently have become aware of the switch, and may reasonably
have concluded that the End User subscribed to AT&T's 800-number
service, because the End Users' telephone bills, sent by AT&T on
behalf of W&C, strongly suggested that this was the case.45
Accordingly, the certifications do not demonstrate by a
preponderance of the evidence that W&C wrongfully switched the
800-number service provider of these three End Users.
18. We further find that AT&T has not met its burden of
proof with respect to another three End Users, because W&C has
provided Subscriber Forms signed by these End Users,46 and AT&T
does not allege that the signatures are forged. These affiants'
assertion in their certification that they ``never heard of ...
W&C''47 appears to be incorrect, because the Subscriber Forms are
headed ``Winback & Conserve Program, Inc.'' AT&T fails to
explain these inconsistencies.
C. AT&T Has Met Its Burden of Proving That W&C Unlawfully
Changed the 800-Number Service Provider of Ten End Users From
AT&T To W&C Without Authorization.
19. In our view, a preponderance of record evidence
establishes that W&C changed the 800-number service provider of
the remaining ten End Users from AT&T to W&C without obtaining
these End Users' authorization.48 We base this conclusion
primarily on the contents of the applicable certifications. As
described above, the affiants submitting these certifications
state that (1) the End User initially subscribed to AT&T for 800-
number service; (2) the affiant did not discover that the End
User was a customer of CCI until he/she telephoned AT&T regarding
the shortfall charges; (3) prior to the telephone call with AT&T,
the affiant ``had never heard of CCI or W&C''; and (4) the End
User never ``knowingly authorize[d] a switch ... to CCI [or] W&C
...''.49 Furthermore, these affiants were employed by the End
User at the time of the switch to W&C,50 and presumably would
have been aware of the switch had it been authorized. Moreover,
W&C admits that these End Users initially subscribed to AT&T's
800-number service,51 and that it acquired these End Users
through its own marketing, rather than from another reseller.52
20. W&C asserts a number of defenses, all of which fail.53
First, it contends that AT&T ``fails to state a cause of
action,'' because ``the [End Users'] accounts were validly
transferred by order of the United States District Court for the
District of New Jersey on May 19, 1995 to CCI.''54 W&C
mischaracterizes the district court's ruling. The ruling only
concerned the validity of W&C's assignment of the end users to
another reseller. The court said nothing about the validity of
W&C's acquisition of those end users in the first place.
21. Second, W&C argues that it relied solely upon
independent contractors to market its services, and that it
cannot be held liable for their misconduct.55 Section 217 of the
Act, however, expressly imposes liability on carriers for the
acts of their independent contractors.56
22. Third, W&C denies that the certifications satisfy
AT&T's burden of proving that W&C switched the End Users without
their permission. To support its denial, W&C first observes that
AT&T has failed to produce the Subscriber Forms for the End
Users, even though AT&T would not have changed the End Users to
W&C unless W&C had previously submitted a Subscriber Form signed
by the End Users. According to W&C, this failure suggests that
the Subscriber Forms contained valid signatures demonstrating
that the End Users authorized the switch to W&C.57 This argument
does not succeed, because W&C also has not submitted Subscriber
Forms for any of the ten End Users. Moreover, AT&T was under no
legal obligation to retain the Subscriber Forms, and states that
it did not do so.58 Thus, any implication to be drawn from the
absence of the Subscriber Forms from our record fails to overcome
the clear and express statements made in the certifications.59
23. To further rebut the certifications, W&C points to the
fact that the End Users were billed for W&C's services by AT&T on
bills strongly implying that AT&T, rather than W&C, was the End
User's 800-number service provider, and further notes that the
event of signing on with W&C was a one-time occurrence, whereas
each End User received AT&T's bills monthly over extended
periods.60 W&C speculates that AT&T's allegedly misleading
billing practices, coupled with the inherently complicated nature
of the relationship between a reseller and the underlying
facilities-based carrier, caused the End Users to become confused
as to W&C's role. Alternatively, W&C suggests that the End Users
simply forgot that W&C was their 800-number service provider.61
24. The clarity and simplicity of the ten End Users'
certifications contradict W&C's assertion that these End Users
are merely confused. The affiants state that they ``never heard
of ... W&C'' and that the End Users ``never entered into any
agreement with ... W&C.''62 We also doubt that the End Users
forgot that they subscribed to W&C's services. W&C began
reselling the CSTP II Plans only three years before these
certifications were signed. If the End Users had forgotten that
they switched to W&C, the act of reviewing the certifications
prior to execution almost certainly would have reminded them.
25. W&C argues further that the End Users' certifications
``are not credible nor validly obtained.''63 W&C first observes
that the certifications were not prepared by the End Users
themselves, but by AT&T -- W&C's competitor and adversary in two
pending federal court actions.64 W&C also argues that the End
Users signed the certifications to avoid the re-imposition of the
shortfall charges by AT&T. According to W&C, the certifications
were ``solicited by AT&T from companies over whose heads AT&T
held a huge financial club (the threat of re-imposition of the
[shortfall] charges).''65 W&C further asserts that the End Users
signed the certifications out of misdirected anger at CCI. In
W&C's view, ``AT&T deceitfully advised each of the 40 [End Users]
that CCI was solely responsible for [the shortfall charges] being
placed on their bills, magnanimously removed the [shortfall]
charges from the bills which the end users never owed in the
first place, and proceeded to weave a very skillful verbal web
leading these people to believe they had been [switched without
26. The foregoing circumstances do require us to review the
certifications with greater caution than would otherwise apply.
Even when so viewed, however, we believe them to be credible.
The affiants almost certainly understood the significance of what
they were signing. The language of the certifications is
straightforward and clear. Moreover, the solemnity and
importance of the documents are apparent, because the
certifications are expressly made under penalty of perjury, bear
the caption of this action, and state that the affiant ``make[s]
this certification ... in support of AT&T's complaint against ...
27. Further, the allegations in the certifications receive
independent support from W&C's Late Payment Letter, which W&C
sent to any of its customers who were late paying a bill. This
Late Payment Letter strongly suggests that AT&T was the end
user's 800-number service provider. It begins: ``AT&T recently
advised us that your account is now past due. In addition to the
monthly AT&T invoices sent to you, AT&T also sent you a reminder
at 45 days past due. We must now collect this money for
AT&T.''68 Thus, the Late Payment Letter could easily lead the
end user to believe that it owed the money to AT&T and that,
therefore, AT&T was its service provider. W&C appears to be
AT&T's collection agent, informed by AT&T when accounts are past
due and ``collect[ing]'' the money ``for AT&T.'' Adding to the
potential confusion, the letter warns that payment must be
received ``to avoid possible interruption of your AT&T 800
line.'' The remaining portions of the letter also are confusing.
They do not reveal the nature of the relationship between W&C and
the end user, and refer repeatedly to ``AT&T'' and ``your AT&T
account number.''69 In short, the Late Payment Letter does not
appear designed to accomplish the legitimate purpose of assuring
end users that their calls would be carried on AT&T's lines.
Rather, the Late Payment Letter may well lead end users to
believe erroneously that AT&T was their service provider. Such
correspondence would be necessitated if some of W&C's end users
had not authorized the switch to W&C. W&C's provision of these
confusing materials regarding its status as a service provider to
its end users therefore buttresses the End Users' assertions in
the certifications that they did not authorize a switch from
28. Finally, in addition to W&C's other defenses described
above, Mr. Inga, W&C's President, states in summary that none of
the 40 End Users was improperly switched by W&C.71 As discussed
above, we do not believe the weight of the evidence supports that
view. In particular, we do not find his assertion sufficient to
overcome the detailed and sworn certifications of the ten End
Users. Moreover, Mr. Inga's overall testimony contained
significant contradictions72 and often was not based on personal
29. In conclusion, we find that AT&T has met its burden of
proving that W&C violated section 201(b) of the Act by switching
ten of the End Users from AT&T to W&C without authorization.
Accordingly, as to those ten End Users, AT&T's complaint is
IV. ORDERING CLAUSE
30. Accordingly, IT IS ORDERED, pursuant to sections 4(i),
4(j), 201(b), and 208 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 154(i), 154(j), 201(b), and 208, that the
formal complaint filed by AT&T Corp. against Winback & Conserve
Program, Inc., IS GRANTED to the extent indicated herein and is
in all other respects DENIED.
1 47 U.S.C. § 208.
2 47 U.S.C. § 201(b). Section 201(b) of the Act states, in
pertinent part: ``All ... practices ... for and in connection
with [interstate or foreign] communication service, shall be
just and reasonable, and any such ... practice ... that is
unjust or unreasonable is hereby declared to be unlawful ...''.
3 Toll-free, or 800-number, service is an interexchange service
in which a subscriber agrees in advance to pay for all calls
made to its 800-number from a specified area. See In the
Matter of Provision of Access for 800 Service, Report and Order,
8 FCC Rcd 1423, 1423 at ¶ 2 (1993).
4 AT&T Corp. v. Winback & Conserve Program, Inc., Complaint of
AT&T Corp., File No. E-97-02 (filed Oct. 25, 1996)
(``Complaint'') ¶¶ 2-3.
5 A ``reseller'' purchases a large volume of telecommunications
services from a facilities-based IXC at a lower rate than would
apply if a smaller volume of services were purchased. The
reseller then sells the services to third parties (usually end
users), passing on a portion of the volume discount to the end
users, and retaining a portion of the volume discount for
itself. The end users are customers of the reseller and not of
the underlying IXC; the reseller is both the IXC's customer and
its competitor. See generally, WATS Int'l Corp. v. Group Long
Distance (USA), Inc., Memorandum Opinion and Order, 11 FCC Rcd
3720, 3728 at ¶¶ 15-16 (Com. Car. Bur. 1995), app. for rev.
denied, Memorandum Opinion and Order, 12 FCC Rcd 1743 (1997).
6 Complaint ¶¶ 6-9. See Complaint Ex. A (Certification of
Howard Appel, dated October 4, 1996) (``Appel Cert.'') Ex. A, at
Attachment E; AT&T Corp. v. Winback & Conserve Program, Inc.,
Verified Answer of Winback & Conserve Program, Inc., File No. E-
97-02 (filed Dec. 18, 1996) (``Answer'') ¶¶ 3, 9, 29-32, and Ex.
1 (Certification of Alfonse Inga dated Dec. 18, 1996) (``Inga
Cert.'') Ex. H.
7 Complaint ¶¶ 6, 9; Answer ¶¶ 25, 27.
8 Appel Cert. Ex. A, at Attachment E; Answer ¶¶ 29-33, 42-43,
and Inga Cert. Ex. C.
9 Answer at i; AT&T Br. at 2.
10Answer Ex. 2. See AT&T Br. at 25 - 26. AT&T's bills,
submitted on behalf of other resellers, were in the same format.
AT&T Corp. v. Winback & Conserve Program, Inc., Supplemental
Answer, File No. 97-02 (filed Feb. 19, 1997) ¶¶ 3-6.
11 Inga Cert. ¶¶ 19, 26, 28, 29.
12 Inga Cert. ¶ 20, and Ex. C; AT&T Corp. v. Winback & Conserve
Program, Inc, AT&T's Initial Brief, File No. E-97-02 (filed Nov.
14, 1997) (``AT&T Br.'') at ii.
13 Inga Cert. ¶¶ 29-31, and Ex. D. See AT&T Br. at 18-19. AT&T
Corp. v. Winback & Conserve Program, Inc., Reply Brief of
Winback & Conserve Program, Inc., File No. 97-02 (filed Dec. 19,
1997) (``W&C Br.'') at 20. See also, Inga Cert. Ex. F.
14 Answer at i, ¶¶ 3, 9, 24, 28; AT&T Reply Ex. 1 (Combined
Companies, Inc. v. AT&T Corp., No. 95-908, slip op. (D. N.J. May
15 Complaint Exs. 1-42 at ¶¶ 5, 7; Answer ¶¶ 28, 33.
16 Answer ¶¶ 3, 6.
17 Appel Cert. Ex. A; AT&T Br. at 3-4.
18 AT&T Complaint Exs. 1-42 ¶ 5; Answer at i.
19 Appel Cert. Ex. A.
20 Appel Cert. Ex. A, at Attachment E; Answer at ii.
21 Appel Cert. Ex. A, at Attachment E. The record does not
reveal whether CCI paid the shortfall charges.
22 See, e.g., Complaint ¶¶ 12, 13.
23 Complaint ¶ 22(c).
24 Complaint ¶ 22(b) (citing 47 C.F.R. § 1.722).
25 Appel Cert. ¶¶ 4-5; Complaint Exs. 1-42 ¶¶ 4-5.
26 Complaint Exs. 1-42 ¶¶ 3-11.
27 Answer at ii, ¶¶ 27, 33; Inga Cert. ¶ 25, and Ex. A.
28 Answer ¶¶ 9-1, 23-26. W&C also submitted a counter complaint
alleging that AT&T's imposition of the shortfall charges
violated section 201(b). AT&T Corp. v. Winback & Conserve
Program, Inc., Counter Complaint of Winback & Conserve Program,
Inc., File No. 97-02 (filed Dec. 18, 1996). W&C's Counter
Complaint was dismissed without prejudice on W&C's motion. AT&T
Corp. v. Winback & Conserve Program, Inc., Letter Ruling, File
No. 97-02 (dated July 15, 1997).
29 Answer ¶ 18.
30 See In the Matter of Investigation of Policies and Rules
Concerning Changing Long Distance Carriers, Report and Order, 7
FCC Rcd 1038, 1047 at ¶ 54 (1992) (citing section 201 as
authority for its PIC-change verification rules).
31 Hi-Rim Commun., Inc. v. MCI Telecomm. Corp., Memorandum
Opinion and Order, 13 FCC Rcd 6551 (Com. Car. Bur. 1998).
32 Id. at 6555 ¶ 14.
34 See, e.g., In the Matter of CCN, Inc., Order to Show Cause
and Notice of Opportunity for Hearing, 12 FCC Rcd 8547, 8552 ¶
16 (1997). The ruling in WATS Int'l Corp. v. Group Long
Distance (USA), Inc., Memorandum Opinion and Order, 11 FCC Rcd
3720 (Com. Car. Bur. 1995), app. for rev. denied, 12 FCC Rcd
1743 (1997), further demonstrates that section 201(b) prohibits
resellers from infringing upon consumer choice. In that
decision, the Bureau held that section 201(b) prohibited a
reseller from changing its underlying network provider without
informing its customers of the change because the reseller had
induced customers to subscribe to its services with the
understanding that their calls would be carried over the
original provider's network, and the Commission affirmed.
35 Hi-Tech Furnace Systems, Inc. v. FCC, 224 F.3d 781, 787 (D.C.
Cir. 2000) (affirming the Commission's decision to impose the
burden of proof on the complainant). See also Consumer.Net v.
AT&T Corp., Memorandum Opinion and Order, 15 FCC Rcd 281, 284-85
at ¶ 6 (1999); In the Matter of Implementation of the
Telecommunications Act of 1996, Amendment of Rules Governing
Procedures to be Followed When Formal Complaints Are Filed
Against Common Carriers, Report and Order, 12 FCC Rcd 22497,
22615 at ¶ 291 (1997); America's Choice Communs., Inc. v. LCI
Int'l Telecom. Corp., Memorandum Opinion and Order, 11 FCC Rcd
22494, 22496 at ¶ 8 (1996); American Telegram Corp. v. New
Valley Corp., Memorandum Opinion and Order, 11 FCC Rcd 11846,
11851 at ¶ 12 (1996).
36 These 24 End Users' certifications are found at Complaint
Exs. 1-5, 8, 13, 14, 17, 18, 20, 22, 23, 25, 28-30, 32-34, 37-
39, and 42.
37 Answer ¶ 25; Inga Cert. ¶¶ 28, 34, 46, 48, 53, 62, 67, 69,
74, 76, 83, 87, 92, 100, and at Exs. A, E, I.
38 See, e.g., AT&T Br. at 13 (stating that AT&T was the End
Users' 800-number service provider ``immediately preceding the
slamming by W&C or its ... predecessor-in-interest'') (emphasis
39 The End User certifications provide no such evidence. An End
User switched without its knowledge from AT&T by a reseller
other than W&C, and then assigned by the reseller to W&C, could
accurately state, as do the End User certifications, that they
never ``heard of CCI or W&C,'' and never ``authorize[d] a switch
... from AT&T ...''. See e.g., Complaint Ex. 1 ¶¶ 7, 9, 10.
The End Users would not be aware of the initial switch from
AT&T, because it was unauthorized. The End Users also would not
be aware of the subsequent assignment to W&C, because AT&T did
not require that W&C memorialize such an assignment with a form
signed by the End User. Further, AT&T's bills to the resellers'
customers strongly suggested that AT&T remained the customers'
800-number service provider, as they contained many references
to AT&T and none to the reseller. See ¶ 4, supra.
40 The sole authority cited by AT&T is AT&T Co. v. MCI
Communications Corp., 735 F. Supp. 1294, 1298 (D. N.J. 1990).
That decision stands for no such proposition. The court,
disposing of motions to transfer and dismiss for lack of
jurisdiction, merely mentions in passing that the defendant
telemarketing company ``or its predecessors'' provided
telemarketing services to the co-defendant. Id. AT&T does not
allege, and the record does not indicate, that W&C was aware of
any alleged impropriety in the other resellers' acquisitions of
customers. Further, AT&T has not raised, and we do not address,
the issue of whether any of the assignments to W&C were a
material change such that W&C should have notified the end users
of the assignment. Cf., WATS Int'l Corp. v. Group Long Distance
(USA), Inc., Memorandum Opinion and Order, 11 FCC Rcd 3720, 3728
at ¶¶ 15 -16 (1995) (Com. Car. Bur. 1995), app. for rev. denied,
Memorandum Opinion and Order, 12 FCC Rcd 1743 (1997) (discussed
above at ¶ 12).
41 These three End Users' certifications are found at Complaint
Exs. 6, 7, and 15.
42 Complaint Exs. 6, 7 and 15 at ¶¶ 1, 10.
43 See n.6, supra.
44 Complaint Exs. 6, 7 and 15 at ¶ 1.
45 As previously described, AT&T's bills to W&C's customers made
no reference to W&C, were headed ``AT&T 800 READY LINE,'' bore
the AT&T globe logo, and directed the end user to make their
checks payable to AT&T and mail them to AT&T. See ¶ 4, supra.
46 Inga Cert. at Exs. C, F, and H. These three End Users'
certifications are found at Complaint Exs. 9, 26, and 31.
47 Complaint Exs. 9, 26, and 31, at ¶ 7.
48 The End User certifications submitted on behalf of these ten
End Users are found at Complaint Exs. 10-12, 16, 19, 21, 24, 27,
40, and 41.
49 Complaint Exs. 10-12, 16, 19, 21, 24, 27, 40, and 41, at ¶¶
50 See, e.g., Complaint Ex. 10 ¶ 1.
51 See, e.g., W&C Br. at 31-32 (arguing that ``AT&T knew that
it had lost these customers whenever it was that it lost
them''); Answer ¶¶ 29-32 (asserting that, when ``an 800 [-
number] customer account formerly serviced directly by AT&T is
[switched to a reseller],'' AT&T does not suffer damages)
52 Inga Cert. Ex. A.
53 W&C asserts as an affirmative defense that AT&T's complaint
is ``barred by the statute of limitations,'' apparently invoking
section 415(b) of the Act, 47 U.S.C. § 415(b). Answer ¶ 35.
Section 415(b) applies only to claims for damages. See ACC Long
Distance Corp. v. Yankee Microwave, Inc., Memorandum Opinion and
Order, 10 FCC Rcd 654, 670 at ¶ 30 (1995). Accordingly, this
defense will be addressed if AT&T files a supplemental complaint
for damages. We note, however, that had W&C shown that AT&T
delayed unreasonably in bringing its claims for declaratory and
injunctive relief, we have discretion to dismiss those claims on
equitable grounds. See generally Black Radio Network v. New
York Tele. Co., Memorandum Opinion and Order, 12 FCC Rcd 13,737,
13748 n.40 (Com. Car. Bur. 1997).
54 Answer ¶ 28 (citing Combined Companies, Inc. v. AT&T Corp.,
No. 95-908, slip op. (D. N.J. May 19, 1995)), (AT&T Reply at Ex.
1), in which the court ruled that W&C and CCI had ``established
their right to a have the transfer of CSTP II plans [from W&C to
CCI] ... recognized and authorized by AT&T,'' and granted a
preliminary injunction ordering AT&T ``to provide CCI full
service on the CSTP II Plan[s] ...'').
55 W&C Br. at 25-26.
56 47 U.S.C. § 217 (providing, in pertinent part: ``In
construing and enforcing the provisions of this Act, the act
... of any officer, agent, or other person acting for or
employed by any common carrier ... acting within the scope of
his employment, shall in every case be also deemed the act ...
of such carrier ...''). See In the Matter of Long Distance
Direct, Inc., Notice of Apparent Liability for Forfeiture, Order
of Forfeiture, 15 FCC Rcd 3297 (2000) (imposing a forfeiture on
an IXC for violations of sections 201(b) and 258 of the Act even
though the IXC asserted that the acts complained of were those
of its independent contractors).
57 W&C Br. at 19-20.
58 AT&T Br. Ex. A (AT&T Corp. v. Winback & Conserve Program,
Inc., Response of AT&T Corp. to the First Set of Interrogatories
of Defendant Winback & Conserve Program, Inc., File No. E-97-02
(dated Jan. 17, 1997) (``AT&T's Interrogatory Responses''),
Response to Interrogatory No. 11).
59 W&C argues that the Subscriber Forms contained the End User's
AT&T account number, and that this information could be obtained
only from the End Users. Inga Cert. ¶ 25; W&C Br. at 20. Yet,
W&C could have obtained this information from the End Users by
representing itself as AT&T.
60 See W&C Br. at 23.
61 W&C Br. at 12, 23, 26.
62 See, e.g., Complaint Ex. 10 ¶¶ 6, 8.
63 Answer ¶ 26.
64 W&C Br. 10-11. In 1993, AT&T sued W&C in federal court
alleging that, in soliciting customers, W&C sales
representatives misrepresented that they were acting on behalf
of AT&T. Complaint ¶ 20 (citing AT&T Company v. Winback &
Conserve Program, Inc., 851 F. Supp. 617, 619 (D.N.J.), remanded
for further consideration, 42 F.3d 1421 (3rd Cir. 1994)); W&C
Br. at 2. In 1995, W&C brought an action seeking a ruling that
its assignment of the CSTP II Plans to CCI, and the subsequent
transfer of the Plans to another reseller, were valid. See AT&T
Reply Ex. 1 (Combined Companies, Inc. v. AT&T Corp., No. 95-908,
slip op. (D. N.J. May 19, 1995)).
65 W&C Br. at 11.
66 Answer at i-ii. W&C also argues that the certifications are
not credible because AT&T settled with CCI. W&C Br. at 11. We
do not agree. The certifications were signed long before AT&T
and CCI had settled their dispute here.
67 See, e.g., Complaint Ex. 10 ¶ 2.
68 Inga Cert. at Ex. B (emphasis in original).
69 W&C argues that, because W&C's name is on the Late Payment
Letter's letterhead, and the letter begins ``Dear Client,'' the
Late Payment Letter made clear that the reader was not ``dealing
with AT&T''. W&C Br. at 31. W&C fatally ignores the vast
majority of the letter, as described above.
70 W&C asserts that four of the ten End Users received customer
service and/or Late Payment Letters from W&C, contradicting
these End Users' statements in their certifications that they
``never heard of ... W&C.'' W&C Br. at 17-19. W&C's only
evidence is a document described by W&C as a ``summary of
information maintained in W&C's database.'' W&C Br. at 17
(describing Inga Cert. Ex. A). W&C's ``summary'' (without
providing the underlying data) is hearsay, and therefore
entitled to less weight than the End Users' certifications. W&C
also submits a check drawn on the account of Trudy Philbin.
Inga Cert. Ex. G. W&C states that the initials on the check are
the same as those of End User T.L.P. Technologies Inc., asserts
that the check is that of the secretary of that company, and
contends that the check was mailed to W&C in payment of a past
due phone bill. Inga Cert. ¶ 65. Because we doubt that a
personal check would be used to pay a company's bill, we do not
find the check sufficient to contradict the statements made in
this End User's certification. Finally, W&C cites to a
certification dated December 4, 1996 by Mr. Inga purporting to
describe his telephone conversations with employees of certain
of the End Users. Answer ¶ 10. This certification is hearsay,
and therefore does not overcome these End Users' direct
71 Inga Cert. ¶ 2.
72 For example, in three different places in the record, Mr.
Inga specifies three different times when W&C ceased marketing
-- early 1994, late 1994, and early 1995. Compare W&C Br. at 25
(by Mr. Inga pro se) with Answer ¶ 37, and with Inga Cert. ¶ 19.
Similarly, Mr. Inga's explanation of certain dates set forth in
a W&C letter pertaining to the End Users, W&C Br. at 14
(discussing Complaint Exs. 2, 18), is contrary to the clear
language of the letter. His explanation also would mean that
one of the End Users became a W&C customer in 1991, and another
in 1992, see Complaint Exs. 6, 7; yet W&C states that it did not
begin selling the CSTP II Plans until 1993. Answer ¶¶ 29-32.
73 For example, Mr. Inga states that ``[t]here was not one [End
User] company that was slammed, even by the original [reseller]
company, that signed them on ...'' W&C Br. at 11 (by Mr. Inga
pro se). We do not understand how Mr. Inga can know that none
of the End Users was improperly switched by the resellers whose
CSTP II Plans W&C acquired, particularly as he also states that
those resellers were W&C's ``competit[ors]''. Id.
74 Nevertheless, we deny AT&T's request that the Commission
enjoin W&C from engaging in continued acts in violation of
section 201(b). AT&T does not contest W&C's assertion that,
prior to the filing of AT&T's complaint here, W&C ceased to
provide interstate telecommunications services. Answer ¶¶ 3, 6.
Accordingly, AT&T's request is moot.