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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                 )
                                )
AT&T Corp.,                      )
                                 )    File No. E-97-02
      Complainant,               )
v.                               )
                                )
Winback  &   Conserve   Program, )
Inc.,                            )

       Defendant.


                  MEMORANDUM OPINION AND ORDER

   Adopted:  August 13, 2001            Released:    August   23, 

2001

By the Commission:

                        I.   INTRODUCTION

     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. 



                       II.     BACKGROUND

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 
receiving.21 

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 
...''.26 

     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

                           II.  DISCUSSION

A.     Section 201(b) of the Act Applies to Carrier Subscription 
Processes.

     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 
201(b).

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 
is denied.

     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 
their authorization].''66

     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 ... 
W&C.''67

     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 
AT&T.70

     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 
knowledge.73 

     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 
granted.74
                    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.


          
                                         FEDERAL   COMMUNICATIONS 
COMMISSION



                                                  Magalie   Roman 
Salas
                                Secretary




_________________________

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  ...''.  
Id.  

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 
19, 1995)). 

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.

33 Id.

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 
added).

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   
3-11.

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) 
(emphasis added).

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 
testimony.

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.