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

                                 
In the Matter of                   )
                                 )
GERRI MURPHY REALTY, INC.,         )
                                 )
               Complainant,        )
          v.                     )      File  No.  EB-01-TC-
F008
                                 )
AT&T CORPORATION                 )
                                 )
               Defendant,          )
                                 )


                MEMORANDUM OPINION AND ORDER

Adopted: October 12, 2001                         Released: 
October 15, 2001 

By the Commission:

                      I.  INTRODUCTION

     1.   In this Memorandum Opinion  and Order, we deny the 
above-captioned formal complaint  filed by complainant Gerri 
Murphy  Realty, Inc.  (GMRI).   The  Complaint raises  three 
issues  for  the  Commission's  consideration:  (1)  whether 
AT&T's Tariff F.C.C. No. 1, Section 2.4.1.A on file with the 
Commission at  the time  of the events  giving rise  to this 
proceeding is  lawful;1 (2) whether GMRI  is liable pursuant 
to AT&T's  tariff for charges associated  with long distance 
telephone calls made in September  1999 by third parties who 
obtained  unauthorized   access  to   GMRI's  communications 
system;2 and (3)  whether AT&T's conduct with  regard to the 
unauthorized calls was unreasonable in violation of Sections 
201(b), 203, and  206 of the Communications Act  of 1934, as 
amended.3 For the reasons discussed below, we conclude that: 
(1) AT&T's tariff is lawful; (2) GMRI is liable under AT&T's 
tariff for the unauthorized  charges; and (3) AT&T's conduct 
with regard  to the unauthorized calls  was not unreasonable 
or otherwise in violation of the Communications Act.
                         II.  BACKGROUND

     A.   Parties To the Proceeding

     2.   GMRI  is  a  real estate  agency  incorporated  in 
Georgia.4 In 1996, GMRI acquired  the assets of Head Realty, 
Co. (Head Realty) and pursuant to that transaction, became a 
subscriber to  AT&T's 800  Service under AT&T  Tariff F.C.C. 
No. 2  and AT&T's  Long Distance  Message Telecommunications 
Service (LDMTS) under AT&T Tariff F.C.C. No. 1.  Pursuant to 
the Head  Realty transaction, GMRI also  acquired a contract 
with Southern Bell  for ESSX-1 service, which  it renewed in 
1997.5  The ESSX system  controlled GMRI's telephone service 
and also controlled the  physical phone lines connecting the 
central office switch with  GMRI.6   In addition, the ESSX-1 
service  included  a  Direct  Inward  Dialing  feature  that 
allowed ``incoming calls from the exchange or toll network'' 
to  ``be dialed  directly  to completion  to'' any  outbound 
number.7 During the relevant time frame, GMRI was also using 
an on  site Panasonic  telephone/voice mail system  that was 
password protected.8 Whether  that system permitted external 
or remote access is a matter of dispute.9
 
     3.   AT&T is  an interexchange  carrier (IXC)  and, for 
purposes of this proceeding, was engaged in the provision of 
interLATA telecommunications services.  Under the regulatory 
framework in place at the time  of the events giving rise to 
this proceeding,  AT&T was  classified as  a ``nondominant'' 
interexchange  carrier. As  a result,  AT&T was  required to 
file and maintain tariffs with the Commission that contained 
charges,  terms,  and  conditions   of  its  common  carrier 
offerings.

     B.   Underlying Facts

     4.   On or  about September 7, 1999,  AT&T noticed that 
GMRI's 800  number was  receiving a  high number  of inbound 
calls  from the  New York  area and  that there  was a  high 
number of  international calls to locations  where suspected 
fraud has occurred in  the past.10  AT&T's security division 
then  contacted GMRI  to inform  it of  the unusual  calling 
patterns   detected.11    Subsequent  conversations   ensued 
between the parties,  the contents of which  are in dispute.  
GMRI  alleges  that despite  complying  with  all of  AT&T's 
recommendations,  the  fraudulent  toll  calls  continued.12   
AT&T contends that GMRI decided to contact GMRI's voice mail 
technician  to  resolve the  problem  and,  when advised  to 
authorize  a block  of the  area codes  at issue,  initially 
declined.13   According  to  AT&T,  after  several  days  of 
continued unauthorized  calling, AT&T placed a  block on the 
area codes  without prior  authorization and the  toll fraud 
ceased.14   GMRI contends  that the  toll fraud  ceased only 
after AT&T advised  it to discontinue its  800 number except 
for calls from Alaska and Guam.15

     5.   AT&T  subsequently  billed  GMRI for  all  of  the 
telephone calls, both  authorized and unauthorized, pursuant 
to AT&T's  Tariff F.C.C. No.  1, Section 2.4.1.A  and F.C.C. 
No. 2, Section 2.4.1.A.16

     C.   Procedural History

     6.   On March 8, 2000, GMRI filed an informal complaint 
with the  Commission alleging that AT&T's  effort to collect 
charges  for unauthorized  telephone calls  originating from 
GMRI's telephone number were illegal and unjust.17        On 
November 16, 2000, AT&T filed  its response, stating that it 
could not  offer any  resolution to the  complainant because 
the account was in  pre-litigation.18  On December 20, 2000, 
the  Commission's  Consumer  Information Bureau  closed  the 
complaint.19  

     7.   On February 5, 2001,  AT&T filed a lawsuit against 
GMRI in the United  States District Court, Northern District 
of Georgia, Atlanta Division20 seeking $90,270.89 in charges 
for  the  provision   of  long  distance  telecommunications 
services  relating to  the calls  at issue.21   The District 
Court stayed the  proceeding pending the filing  of a formal 
complaint  with the  Commission, retained  jurisdiction over 
AT&T's claims, and dismissed GMRI's counterclaims.22  On May 
15, 2001, GMRI filed  the above-captioned Complaint alleging 
that AT&T's tariff is unlawful,  that GMRI is not liable for 
the unauthorized calls and that AT&T's effort to collect the 
unauthorized charges violates Sections  201, 203, and 206 of 
the Communications Act.23

                      III.  DISCUSSION

     A.   Lawfulness of AT&T's Tariff

     8.   GMRI  challenges the  lawfulness of  AT&T's Tariff 
F.C.C. No. 1, Section 2.4.1.A on grounds that the allocation 
of risk associated  with toll fraud is  improperly placed on 
individual  customers.24   The   relevant  tariff  provision 
provides  that  ``[t]he  Customer  is  responsible  for  the 
payment...for LDMTS calls or  services: -- Originated at the 
Customer's  number(s).''    GMRI  suggests  that   ``a  more 
reasonable means for recovering the loss of the risk of toll 
fraud is through spreading it  and sharing it'' among AT&T's 
entire customer  base.25  We disagree that  AT&T's tariff is 
unlawful.

     9.   As AT&T notes in its Brief, it offers a variety of 
enhanced NetProtect options to  limit customer liability for 
toll fraud.26  Furthermore, customers  who do not choose one 
of  the   enhanced  NetProtect  options   are  automatically 
enrolled  in AT&T's  Basic service  which caps  liability at 
$25,000  prior  to  AT&T's  notification, and  offers  a  50 
percent  reduction in  charges if  the customer  detects the 
fraud  first  and  notifies   AT&T.27   We  find  that  such 
provisions both  provide customers with  reasonable security 
options and  create appropriate incentives for  customers to 
secure and monitor their telephone systems.  Particularly in 
view of the security options  available to its customers, we 
find  no  merit  in  GMRI's argument  that  AT&T  should  be 
required  to  spread  the  risk of  fraud  over  its  entire 
customer base.   We therefore reject GMRI's  allegation that 
AT&T's tariff unlawfully allocates the risk of toll fraud to 
individual customers.

     B.   Liability for Unauthorized Calls 

     10.  GMRI  contends  that  it  is not  liable  for  the 
unauthorized calls  placed over its telephone  lines because 
the calls  were ``not  specifically requested by  GMRI, were 
not made at GMRI's locations,  were not originated at GMRI's 
phones and  were the  result of  telephone toll  fraud.'' 28  
While GMRI  attempts to distinguish  the facts in  this case 
from prior  Commission precedent,  our holding  in Chartways 
Technologies, Inc. v. AT&T29
is dispositive.  

     11.  In Chartways,  the Commission affirmed  the Common 
Carrier  Bureau's  determination  that a  customer  who  had 
subscribed to AT&T's  LDMTS and 800 services  was liable for 
unauthorized calls  made from  remote locations  through the 
customer's  PBX  system.  Construing the  very  same  tariff 
provisions   that  are   before  the   Commission  in   this 
proceeding, the Commission held  that ``the clear meaning of 
the  relevant  tariff  provisions  is  that  the  customer's 
obligation   includes  liability   for  unauthorized   usage 
involving  incoming 800  Service calls  or LDMTS  calls that 
originate at  the customer's  numbers.'' 30    Moreover, the 
Commission found  that the unauthorized calls  did, in fact, 
originate  at   the  customer's   number  even   though  the 
unauthorized  calls  involved   inbound  800  calls.31   The 
Commission noted that each  incoming unauthorized call using 
the 800 service is ``separate and distinguishable'' from the 
outgoing unauthorized calls using   LDMTS.''32  As a result, 
the Commission  concluded that  with regard to  800 Service, 
there  is  no  requirement  under the  tariff  that  a  call 
originate  at the  customer's number  because all  800 calls 
terminate  there and  because  the  service is  specifically 
designed to  allow unknown callers access  to the service.33  
Hence,  the complainant  in Chartways  was liable  under the 
tariff for  charges associated with the  incoming 800 calls.  
With  regard  to  the  disputed outgoing  LDMTS  calls,  the 
Commission held  in Chartways that because  the unauthorized 
callers  were able  to obtain  a  local dial  tone from  the 
premises,   the  unauthorized   calls  did   originate  from 
Chartways' numbers.34   The Commission therefore  found that 
Chartways was  liable for these  calls as well  under AT&T's 
tariff.35  

     12.  While there  is some dispute  in the record  as to 
the particular facility misused by the callers, both parties 
agree that  the inbound callers  used GMRI's ESSX  system in 
order  to obtain  a  local dial  tone.36   GMRI argues  that 
because  the  ESSX  system  was  not  within  its  immediate 
control, the  unauthorized calls did not  ``originate at the 
customer's  number''  within  the meaning  of  the  relevant 
tariff  provision.37   We   disagree.  Consistent  with  our 
decision in  Chartways, we  find that regardless  of whether 
GMRI had physical control over  the ESSX system, that system 
was exploited by the unauthorized  callers who then made use 
of GMRI's  number to  make fraudulent toll  calls.  Although 
there are no stipulated facts  in this proceeding to suggest 
that GMRI had physical control over the ESSX system, we find 
it significant that GMRI,  with the assistance of BellSouth, 
installed  the ESSX  system without  consulting AT&T  in any 
way, and that it was  this equipment that provided the point 
of   vulnerability    for   the    unauthorized   callers.38    
Furthermore, there is no indication  in the record that AT&T 
had the ability to determine whether particular 800 or LDMTS 
calls were authorized or that  AT&T represented to GMRI that 
it had such capabilities.39  In  order to determine that the 
high number of international  calls placed over GMRI's lines 
were fraudulent,  AT&T first  had to  verify with  GMRI that 
those calls were not authorized. Moreover, there is evidence 
in the  record to suggest that  GMRI could have made  use of 
several  BellSouth  service  options to  restrict  its  ESSX 
service  from making  outbound calls.40   In addition,  AT&T 
offered several  enhanced NetProtect options that,  had GMRI 
elected  to  subscribe  to  them,  would  have  reduced  its 
liability  associated  with  the unauthorized  calls.41   We 
therefore find that  absent any evidence that AT&T  was in a 
position to restrict  access to and egress  from GMRI's ESSX 
system,  and because  there  is undisputed  evidence in  the 
record  suggesting that  GMRI had  control over  the system, 
GMRI  is   liable  under  AT&T's  tariff   for  the  charges 
associated with the fraudulent calls.

     C.   Alleged Violations of the Communications Act

     13.  GMRI contends  that AT&T's  effort to  collect the 
unauthorized charges violates Sections  201, 203, and 206 of 
the Communications  Act.42  Specifically, GMRI  argues that: 
(1)  AT&T breached  its alleged  duty  to warn  GMRI of  the 
potential  for  telephone fraud,  and  its  alleged duty  to 
inform  GMRI of  the existence  of four  NetProtect programs 
offered by  AT&T to limit  customer liability; and  (2) AT&T 
was  negligent either  in  failing to  block the  fraudulent 
calls immediately, or alternatively,  in failing to promptly 
disconnect  or recommend  the  disconnection  of GMRI's  800 
number.43   We  address  these  arguments  below,  rejecting 
GMRI's contention that AT&T violated the Communications Act.

     1.   Alleged Duty to Warn or Inform

     14.  We  find that  GMRI's allegation  that AT&T  had a 
duty to warn its customers of  the risk of toll fraud, or to 
inform its customers of other services it provides to reduce 
liability  in  such  circumstances,   is  not  supported  by 
Commission precedent.  In Chartways,  and again in Directel, 
Inc. v. AT&T,44 the Commission held that AT&T has no duty to 
warn its  customers of  the risk associated  with fraudulent 
telephone   activity.45    In  Chartways,   the   Commission 
concluded that the record did not demonstrate ``a failure by 
AT&T  to  comply  with any  existing  disclosure  obligation 
imposed by the  Commission or required by  Section 201(b) of 
the Act.''46  The Commission further held that the record in 
Chartways did  not indicate  that AT&T  ``had any  basis for 
questioning  [complainant's]  choices about  which  security 
measures  to   implement  in  connection  with   [it's]  own 
telecommunications  equipment.''47  Similarly,  in Directel, 
complainants alleged  that AT&T  had an affirmative  duty to 
warn  it   of  the  risks  associated   with  toll  fraud.48 
Referencing  its  decision   in  Chartways,  the  Commission 
reiterated its position AT&T had no affirmative duty to warn 
complainant about toll  fraud risks.49  We find  the same to 
be true in this proceeding.

     15.  In  support of  its  allegation that  AT&T had  an 
affirmative  duty to  warn its  customers of  potential toll 
fraud,  GMRI   cites  language  in  a   notice  of  proposed 
rulemaking  in which  the  Commission  requested comment  on 
whether  tariff   provisions  that  fail  to   recognize  an 
obligation by  the carrier  to warn  customers of  risks are 
unreasonable.50  Because the  Commission never  subsequently 
issued an order or adopted a rule on the issue, the language 
cited  by GMRI  cannot be  used to  support any  allegations 
regarding a carrier's duty to  warn its customers about toll 
fraud.   As  AT&T correctly  notes,  three  years after  the 
Commission  issued  the  NPRM  on  toll  fraud,  it  decided 
Directel, in which it held that AT&T had no affirmative duty 
to warn the complainant about the risks associated with toll 
fraud.51   We therefore  find  unpersuasive GMRI's  argument 
regarding AT&T's duty  to warn customers about  the risks of 
toll fraud.52

     16.  GMRI  further contends  that  AT&T had  a duty  to 
inform its customers of other services it provides to reduce 
any liability that  may result from toll  fraud.53  While we 
agree that  such information  would be useful  to consumers, 
long-standing case  law contradicts  GMRI's claim  that AT&T 
had  such  a  duty.54    GMRI's  reliance  on  language  the 
Commission used in a  proceeding implementing Section 254(g) 
of  the Communications  Act is  inapposite.55  We  therefore 
find that  AT&T did not  have a duty  to inform GMRI  of the 
other  services it  provides  that may  have reduced  GMRI's 
liability under these circumstances. 

     2.   Alleged Negligence

     17.  GMRI also  contends that AT&T's conduct  after the 
toll fraud was discovered  was unreasonable, in violation of 
the Communications  Act.56  Specifically, GMRI  alleges that 
AT&T was negligent either in failing to block the fraudulent 
calls immediately, or alternatively,  in failing to promptly 
disconnect  or recommend  the  disconnection  of GMRI's  800 
number.57  We reject GMRI's claims in this regard.  

     18.  AT&T's  tariff  limits  AT&T's  liability  to  its 
customers except in instances of willful misconduct.58  When 
GMRI took service under this tariff, it implicitly agreed to 
this  standard  of  liability.    Therefore,  we  limit  our 
discussion  to whether  AT&T's conduct,  with regard  to the 
unauthorized calls, rose to the level of willful misconduct.

     19.  Willful  misconduct  has  been  defined  as  ``the 
intentional performance  of an  act with knowledge  that the 
performance of  that act will  probably result in  injury or 
damage,  or...the intentional  omission  of  some act,  with 
knowledge that such omission  will probably result in damage 
or injury....''59  We  conclude that AT&T did  not engage in 
any activity that supports  a finding of willful misconduct.  
To the contrary,  the evidence in the  record indicates that 
immediately after  AT&T discovered the high  volume of calls 
originating from  GMRI's telephone lines, it  contacted GMRI 
to warn  it of the  potential of fraud.60  GMRI  admits that 
AT&T made  several calls to GMRI,  recommending preventative 
action.61  GMRI contends that notwithstanding its compliance 
with  all of  AT&T's  recommendations,  the fraudulent  toll 
calls continued  until AT&T advised GMRI  to discontinue its 
800   number.62   While   AT&T's  factual   account  differs 
significantly from  GMRI's, even under the  factual scenario 
provided by  GMRI, we  find no evidence  that AT&T  took any 
actions  with the  knowledge that  its conduct  would likely 
injure GMRI.  To the  contrary, AT&T's actions were intended 
to reduce the incidence of  fraud. There is also no evidence 
to suggest that AT&T made any affirmative representations to 
GMRI that  it would correct  the problem and then  failed to 
follow  up  on those  representations.63   In  light of  the 
record before us, we find that any acts or omissions by AT&T 
here do not constitute willful misconduct.64

                         IV.  CONCLUSION

     20.  For the  reasons discussed  above, we  find AT&T's 
tariff  lawful and  find that  GMRI is  liable under  AT&T's 
tariff  for  the  disputed   charges  associated  with  long 
distance  telephone calls  made in  September 1999  by third 
parties   who  obtained   unauthorized   access  to   GMRI's 
communications system.  In addition, we conclude that AT&T's 
effort to collect  such charges pursuant to  its tariff does 
not violate Sections 201, 203,  or 206 of the Communications 
Act.                       V.  ORDERING CLAUSES

     21.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to 
Sections 4(i),  4(j), and 208  of the Communications  Act of 
1934,  as amended,  47 U.S.C.   154(i),  154(j), 208,  the 
above-captioned complaint filed  by GMRI on May  15, 2001 is 
DENIED.

     22.  IT  IS  FURTHER  ORDERED  that the  Chief  of  the 
Telecommunications  Consumers  Division of  the  Enforcement 
Bureau shall forward  a copy of this  Memorandum Opinion and 
Order to  the Clerk,  United States  District Court  for the 
Northern District of Georgia.


                         FEDERAL COMMUNICATION COMMISSION


                         Magalie Roman Salas
                         Secretary





_________________________

1    Complaint at 12.

2    Id; see Brief of GMRI in Support of Formal Complaint, 
Summary (filed July 27, 2001) (GMRI Brief).

3    Complaint at 11;  47 U.S.C.  201, 203, 206.
4    Complaint at 3.

5    Id. at 5-6; see also AT&T's Brief at 1-2.
  
6    Complaint at 6.

7    See Georgia state tariffs of Southern Bell Telephone 
and Telegraph Company, appended to GMRI's Complaint, Exhibit 
J, Sections A112.8.1A and O.1.a.(2).
 
8    Complaint at 6; AT&T Brief at 2-3.

9    See Reply Brief of GMRI at 2 (Reply Brief).

10   AT&T Brief at 6; GMRI Brief at 2-3

11   AT&T Brief at 6; GMRI Brief at 3.

12   GMRI Brief at 4.

13   AT&T Brief at 7.

14   Id.

15   GMRI Brief at 4.

16   AT&T Brief at 7; GMRI Complaint at 1. 

17   Joint Statement of the Parties (filed June 20, 2001) at 
9 (Joint Statement).

18   Id; see AT&T Response, (filed November 16, 2000).

19   Joint Statement at 9.

20   AT&T Corp. v. GMRI, a/k/a Coldwell Banker GMRI, et al., 
Civil Action No. 1:01-CV-0337 (District Court Action). 

21   Joint Statement at 9.
22   Id.

23   Complaint at 11; 47 U.S.C.  201, 203, 206.

24   Complaint at 15.

25   Id.

26   AT&T Brief at 19.  AT&T's NetProtect Plus Service 
offers a $2,000 liability cap prior to notification of the 
fraud, with a 50 percent reduction if the customer detects 
the fraud first and notifies AT&T.  AT&T's NetProtect 
Premium has a $0 liability cap up to two hours after 
notification of the fraud.  See AT&T Tariff F.C.C. No. 1,  
5.9, 5.8.

27   Id.
28   Complaint at 1.

29   8 FCC Rcd 5601 (1993).

30   8 FCC Rcd at 5603,  11.

31   Id. at 5603,  13.

32   Id.

33   Id.  The Commission adds that ``the customer has, by 
subscribing to the service, implicitly authorized any call 
utilizing the service.''  Id.

34   Id.

35   Id.

36   AT&T Brief at 10; GMRI Brief at 9.  AT&T contends that 
the fraud was most likely facilitated by GMRI's on-site 
voice mail system. See AT&T's Brief at 11.
37   GMRI's Reply Brief at 7.

38   See Chartways, 8 FCC Rcd at 5604,   16.  Federal 
courts have also recognized that in instances where the 
complainant creates the vehicle and mechanism through which 
the fraudulent calls are made, regardless of whether that 
mechanism is in the immediate control of complainant, the 
unauthorized toll calls ``originated'' at customer's number 
within the meaning of the relevant tariff provision. See 
AT&T v. Intrend Ropes and Twines, Inc., 944 F.Supp. 701, 710 
(C.D. Ill. 1996).

39   We reject GMRI's unsupported allegations that AT&T 
maintained control over the ESSX system merely by virtue of 
its past affiliation with BellSouth or Lucent Technologies 
Inc., the claimed manufacturer of the equipment used by 
BellSouth to provide the ESSX service. See Complaint at 16.

40   See the ``Secondary Optional Features'' set forth in 
Georgia state tariffs of Southern Bell Telephone and 
Telegraph Company, appended to GMRI's Complaint, Exhibit J, 
Sections A112.8.10.5. (w), (x), and (y); Code Restriction 
Arrangements, Section A112.8.10.5. (m).

41   AT&T Brief at 1; Complaint at 11.

42   Complaint at 11;  47 U.S.C.  201, 203, 206.  GMRI 
briefly alleges that AT&T's practices are unreasonable, in 
violation of sections 201 and 203 of the Act, and that it is 
entitled to recover damages under section 206.   
43   GMRI Brief at 6-12.

44   11 FCC Rcd 7554 (1996).

45   Chartways, 8 FCC Rcd at 5604,  16; Directel, 11 FCC 
Rcd at 7562-63,  19.

46   Chartways, 8 FCC Rcd at 5604,  16.

47   Id.

48   Directel, 11 FCC Rcd at 7558,  8.

49   Id. at 7562-63,  19.

50   Policies and Rules Concerning Toll Fraud, Notice of 
Proposed Rulemaking, 8 FCC Rcd 8618, 8630,  24 (1993).
51   See AT&T Brief at 14, 15; Directel, 11 FCC Rcd 7554 at 
 19.

52   Because we find that AT&T did not have a duty to warn 
GMRI of the risks associated with toll fraud, we do not 
address whether AT&T breached that duty.

53   Complaint at 12.

54   See AT&T v. Intrend Ropes and Twines, Inc., 944 F.Supp. 
at 708; see also Marco Supply Co. v. AT&T, 875 F.2d 434, 436 
(4th Cir. 1989).

55   Policy and Rules Concerning the Interstate 
Interexchange Marketplace, Implementation of Section 254(g) 
of the Communications Act as Amended, CC Docket No. 96-61, 
Second Report and Order, 11 FCC Rcd 20730 (1996) (Second 
Report and Order.  In Re: Western Union Tel. Co. 27 F.C.C. 
2d 515 (1971) is not on point.  The issue in that proceeding 
was ``discrimination'' and the Commission's holding was 
based on an extra charge imposed on customers for physical 
delivery.  GMRI makes no allegation of discrimination in 
this proceeding.  In addition, no extra charge was directly 
imposed on GMRI for its lack of knowledge.  To the contrary, 
GMRI's failure to select one of AT&T's enhanced NetProtect 
options automatically placed GMRI into the default 
NetProtect option offered by AT&T.


56   Complaint at 2; GMRI's Brief at 10.

57   GMRI's Brief at 10.

58   See AT&T Tariff No. 1, Section 2.3.1. GMRI does not 
argue that the willful misconduct provision of the tariff is 
itself unlawful. 
59   Berner v. British Commonwealth Pac. Airlines, Ltd., 346 
F.2d 532, 536-37 (2d Cir. 1965), cert. denied, 382 U.S. 983 
(1966).

60   Complaint at 7.

61   Id. at 8.

62   Id.

63   See MCI v. Management Solutions, Inc., 798 F.Supp. 50, 
52 (D.Me.1992)(holding that affirmative representation to 
correct a problem and subsequent failure to follow up on 
those representations may constitute willful misconduct).

64   We reject GMRI's unsupported allegation that the actual 
charges sought under AT&T's tariff for unauthorized 
telephone fraud are unreasonable.  See Complaint at 16.