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

In the Matter of                )
                                )
AT&T Corporation,               )
                                )
     Complainant,               )
                                )
          v.                    )  File No. E-97-04
                                )
Beehive Telephone Company, Inc. )
and Beehive Telephone, Inc. Nevada,     )
                                )
     Defendants.                   )
                                )
               - and -                  )
                                )
Beehive Telephone Company, Inc. )
and Beehive Telephone, Inc. Nevada,     )
                                )
     Complainants,              )
                                )
          v.                    )  File No. E-97-14
                                )
AT&T Corp.,                     )
                                )
     Defendants.                   )


                  MEMORANDUM OPINION AND ORDER

     Adopted:  June 14, 2002            Released:  June 20, 2002

By the Commission:

                       I.     INTRODUCTION

1.   In this Memorandum Opinion and Order (``Order''), we resolve 

  two complaint proceedings that we have consolidated for 

  administrative convenience.1  First, we grant in part and 

  dismiss and deny in part a formal complaint that AT&T 

  Corporation (``AT&T'') filed against Beehive Telephone 

  Company, Inc. and Beehive Telephone, Inc. Nevada 

  (collectively, ``Beehive'') pursuant to section 208 of the 

  Communications Act of 1934, as amended (``Act'' or 

  ``Communications Act'').2  Second, we dismiss and deny in its 

  entirety a formal complaint that Beehive filed against AT&T 

  pursuant to section 208 of the Act.3  

2.   In its complaint, AT&T alleges that Beehive exceeded its 

  authorized rate of return and engaged in various unlawful 

  billing practices, in violation of sections 201(b)4 and 

  203(c)5 of the Act.6  In addition, AT&T alleges that an access 

  revenue-sharing arrangement between Beehive and an information 

  service provider to which Beehive terminated traffic breached 

  Beehive's common carrier duties, in violation of section 

  201(b) of the Act,7 and constituted unreasonable 

  discrimination, in violation of section 202(a) of the Act.8  

  We grant AT&T's claims that Beehive violated section 203(c) of 

  the Act by failing to comply with various billing requirements 

  of Beehive's effective tariff.  We also grant AT&T's claims 

  that Beehive violated section 203(c) of the Act by failing to 

  comply with its tariff's requirements regarding billing access 

  charges based upon call attempts, but only as to liability and 

  not as to damages.  We further grant AT&T's claims that 

  Beehive exceeded its authorized rate of return, but only as to 

  liability and not as to damages.  Finally, on the basis of the 

  facts and arguments presented in this record, we deny AT&T's 

  claims regarding the access revenue-sharing arrangement 

  between Beehive and the information service provider, because 

  AT&T has failed to meet its burden of demonstrating that this 

  arrangement violated either section 201(b) or section 202(a) 

  of the Act.9

3.   In its complaint, Beehive alleges conditionally that, if 

  (and only if) the Commission grants AT&T's claims that 

  Beehive's access revenue-sharing arrangement was unlawful, 

  then the Commission must also grant Beehive's claims that 

  certain of AT&T's billing arrangements with customers violated 

  sections 201(b), 203, and 228 (the Telephone Disclosure and 

  Dispute Resolution Act (``TDDRA'')) of the Act for precisely 

  the same reasons.10  Beehive also alleges that AT&T violated 

  sections 1.1711 and 1.729(b)12 of the Commission's rules by 

  failing to disclose certain information in the AT&T Complaint 

  proceeding.13  Because we deny AT&T's claims that Beehive's 

  access revenue-sharing arrangement was unlawful, the condition 

  precedent pled by Beehive has not been satisfied, and thus we 

  dismiss Beehive's claims under sections 201(b), 203, and 228 

  of the Act.  In addition, we deny Beehive's claims under 

  sections 1.17 and 1.729(b) of the Commission's rules, because 

  Beehive has failed to meet its burden of demonstrating that 

  AT&T deliberately failed to disclose material information in 

  the AT&T Complaint proceeding.

                       II.     BACKGROUND

4.   At all relevant times, Beehive was an incumbent local 
  exchange carrier (``LEC'') located in rural Utah and Nevada 
  that served approximately 700 access lines.14  Beehive 
  provided local exchange service to end user customers, and 
  exchange access services to AT&T and other interexchange 
  carriers (``IXCs'').15  

5.   Prior to March 31, 1994, Beehive charged IXCs access rates 
  at the levels contained in the interstate access tariff filed 
  by the National Exchange Carrier Association (``NECA'') on 
  behalf of its member companies.16  The NECA tariff specified a 
  rate of approximately $.07 per terminating access minute.17  
  On March 31, 1994, pursuant to section 61.39 of the 
  Commission's rules,18 Beehive withdrew from the NECA tariff 
  and filed its own interstate access tariff (``Tariff'') 
  specifying a terminating interstate access rate of $.47 per 
  minute.19  That Tariff became effective on July 1, 1994.20  
  Although it contained its own access rates, Beehive's Tariff 
  explicitly incorporated the non-rate regulations, terms, and 
  conditions for access services set forth in NECA's Tariff 
  F.C.C. No. 5.21  As of July 1, 1995, Beehive reduced its 
  interstate access rate to $0.14 per terminating minute.22

6.   In October, 1994, Beehive entered into an access revenue-
  sharing arrangement with Joy Enterprises, Inc. (``Joy''), an 
  information service provider to which Beehive terminated 
  traffic.23  Initially, the compensation arrangement required 
  Beehive to pay Joy $.04 per access minute for each long 
  distance call terminated to Joy; eventually, in October, 1995, 
  the compensation was adjusted to a flat-rate of $84,000 per 
  month.24  Subsequently, in January, 1997, the amount was 
  reduced to $42,000 per month.25                       III.     DISCUSSION

A.   Beehive Violated Section 203(c) of the Act By Imposing 
     Access Charges on AT&T For Unsuccessful Call Attempts. 
     
7.   AT&T alleges  and Beehive admits  that Beehive charged 
  AT&T for terminating unsuccessful long-distance call attempts, 
  i.e., calls that did not terminate to the end user, due to 
  either a ``no answer'' or ``busy signal'' at the called 
  number.26  AT&T maintains that this practice contradicted the 
  terms of Beehive's Tariff, in violation of section 203(c).27  
  For the following reasons, we agree.

8.   As the parties acknowledge, Beehive ``was absolutely bound 
  by section 203(c) . . . to provide access services in exact 
  accordance with its tariff.''28  The parties also agree that 
  section 2.6 of NECA Tariff F.C.C. No. 5 governed whether 
  Beehive could properly impose access charges for terminating 
  unsuccessful call attempts.29  This Tariff section provided, 
  in pertinent part:

          For the purpose of calculating chargeable usage, 
          the term `Access Minutes' denotes customer usage 
          of exchange facilities in the provision of 
          interstate or foreign service. . . .  On the 
          terminating end of an interstate or foreign call, 
          usage is measured from the time the call is 
          received by the end user in the terminating 
          exchange.  Timing of usage at both originating and 
          terminating ends of an interstate or foreign call 
          shall terminate when the calling or called party 
          disconnects, whichever event is recognized first 
          in the originating and terminating exchanges, as 
          applicable.30 

9.   We interpret this Tariff provision to mean that usage for 
  which Beehive may impose access charges on AT&T does not begin 
  to accrue until a called party ``receives'' a call.  Under 
  this provision, a called party does not ``receive'' a call 
  that goes uncompleted (generally due to a no answer or busy 
  signal at the called number); rather, a called party 
  ``receives'' a call only when that party actually answers it.  
  Our interpretation of the tariff term ``receive'' comports 
  with the common understanding of the word.  For example, the 
  dictionary definition of ``receive'' is, in pertinent part: 
  ``1. take or accept (something offered or given) into one's 
  hands or possession. . . . 3. accept delivery of (something 
  sent).31  A called party does not ``take'', ``accept'', or 
  ``accept delivery of'' a call until he/she answers it.  Thus, 
  under the pertinent tariff provision, an uncompleted call 
  generates no usage for which Beehive may impose access charges 
  on AT&T.

10.  To try to counter this reading, Beehive only points out 
  that, under the Tariff, the timing of usage ``terminate[s] 
  when the calling or called party disconnects. . . .''32  Based 
  on this observation, Beehive argues that it can, in fact, 
  charge for uncompleted calls, because a calling party can 
  ``disconnect'' a call even when the called party never picks 
  up.33  This reading of the Tariff fatally ignores the fact 
  that the standard for determining when usage terminates does 
  not even apply unless and until the standard for determining 
  when usage begins has been met.  As explained above, an 
  uncompleted call does not meet that latter standard.  
  Consequently, Beehive's practice of imposing access charges on 
  AT&T for terminating uncompleted calls violated Beehive's 
  Tariff and, thus, section 203(c) of the Act.  

11.  AT&T's Complaint requests an order requiring Beehive ``to 
  refund AT&T all amounts which [Beehive] has unlawfully charged 
  [AT&T] in connection with'' uncompleted calls.34  However, 
  AT&T has neither submitted evidence regarding the appropriate 
  amount of such a refund, nor sought bifurcation of this 
  proceeding to make a complete damages showing in a subsequent 
  action.35  Perhaps this is because the parties have agreed to 
  an arbitration mechanism to resolve billing disputes, or 
  because AT&T can assert these unlawful charges as a claim or 
  an offset in the Utah Court Action.36  In any event, based on 
  this record, we find that AT&T has established that Beehive's 
  conduct regarding uncompleted calls violated section 203(c) of 
  the Act but has not proven damages.37

12.  Accordingly, we grant Count Nine of AT&T's Complaint as to 
  liability, but deny Count Nine as to damages.38  We express no 
  opinion, however, as to whether AT&T may pursue a damages 
  claim in the Utah Court Action or in the parties' 
  arbitration.39

B.   Beehive Violated Section 203(c) of the Act By Failing to 
     Comply With Certain Other Billing Requirements of Its 
     Tariff.

13.  AT&T argues that Beehive violated section 203(c) of the Act 
  by ``consistently and intentionally''40 submitting bills to 
  AT&T for access services that were ``seriously inaccurate,''41 
  confusing, and non-compliant with the billing requirements of 
  Beehive's own Tariff.42  According to AT&T, the most egregious 
  problems were ``inconsistent and overlapping time periods 
  contained in each bill and the intentionally deceptive manner 
  in which Beehive identifies the days on which terminating 
  usage accrued.''43  Specifically, AT&T maintains that 
  Beehive's bill dates varied, Beehive's billing periods ranged 
  from three days to thirty-eight days, Beehive's bills often 
  included charges for usage incurred outside the billing 
  period, and Beehive billed some days twice or not at all.44  
  Moreover, AT&T asserts that Beehive identified some of the 
  dates on its bills through the use of the Julian calendar, 
  instead of the modern calendar, which is known as the 
  Gregorian calendar.45  According to AT&T, the Julian calendar 
  is approximately 13 days ahead of the Gregorian calendar, and 
  has not been observed since the 16th century.46  As evidence 
  of all these practices, AT&T submits three bills it received 
  from Beehive and an AT&T staff analysis of alleged 
  discrepancies in 173 Beehive bills (``AT&T Chart'').47

14.  As explained above, section 203(c) of the Act requires that 
  a carrier adhere to the terms of its published tariff.48  As 
  also explained above, Beehive's Tariff incorporated by 
  reference the non-rate terms and conditions set forth in NECA 
  Tariff F.C.C. No. 5.49  That Tariff clearly specified that the 
  minimum billing period would be one month; that Beehive would 
  establish a uniform bill date each month that would not change 
  except upon sixty days' notice to AT&T; and that Beehive would 
  not double-bill for the same usage.50  Beehive admits that it 
  failed to comply with the first two of these requirements.51  
  Beehive explains that it could not adhere to a standard 
  billing cycle of at least one month because (i) it depended on 
  data from US West, which data often arrived out of sequence 
  and overdue, and (ii) its billing systems experienced 
  problems.52  Even if factually correct, these explanations do 
  not excuse Beehive from the obligation to comply with its 
  Tariff.  Moreover, AT&T has submitted substantial evidence of 
  numerous and prolonged billing errors, which Beehive does not 
  refute.53  Thus, AT&T has met its burden of proving that 
  Beehive violated section 203 of the Act by committing numerous 
  billing errors and by failing to adhere to a standard billing 
  cycle of at least one month.54

15.  We further find, however, that the record fails to support a 
  finding that Beehive committed anything more than a de minimus 
  violation of either section 203(c) or 201(b) by rendering 
  access bills based upon the Julian calendar.  The evidence 
  submitted by AT&T is underwhelming.  There is no allegation 
  (much less proof) that any of the three bills submitted by 
  AT&T into the record fails to properly identify the billing 
  period based upon the Gregorian calendar.55  Moreover, the 
  AT&T Chart that purports to summarize errors discovered on 173 
  bills indicates that almost all of those bills expressed dates 
  based upon both the Julian and Gregorian calendars.56  
  Finally, although Beehive admits that it submitted five 
  invoices to AT&T between February and May 1995 that referred 
  only to Julian calendar dates, Beehive denies that this 
  practice continued thereafter,57 and there is no evidence in 
  the record to the contrary.  Thus, assuming, arguendo, that 
  billing based solely on the Julian calendar would violate 
  sections 201(b) and 203(c), we conclude that any such 
  violations here were too trivial to warrant any adverse 
  Commission finding.58

16.  In sum, we conclude that AT&T has met its burden of proving 
  that Beehive violated section 203 with respect to all of the 
  billing practices alleged, except the use of the Julian 
  calendar.  Therefore, we largely grant and partially deny 
  Counts Six and Seven of AT&T's Complaint accordingly.59  We 
  note that AT&T neither requested nor sought to prove damages 
  arising from the billing practices alleged in Counts Six and 
  Seven.

C.   Beehive's Access Rates Violated Section 201(b) by Generating 
     Earnings Above the Prescribed Rate of Return in 1994, 1995, 
     and 1996.

17.  AT&T alleges that Beehive's $.47 per minute and $.14 per 
  minute rates for terminating interstate access services 
  violated section 201(b) of the Act, because they caused 
  Beehive to exceed its prescribed rate of return of 11.25% in 
  1994, 1995, and 1996.60  AT&T did very little to seek or 
  submit in this proceeding's record evidence to substantiate 
  its allegations of overearnings.61  AT&T did eventually 
  request, however, that we take official notice of Beehive's 
  acknowledgment in another Commission proceeding that Beehive's 
  interstate access charges exceeded the prescribed rate of 
  return in 1994, 1995, and 1996.62  For the reasons explained 
  below, we accede to AT&T's request and, as a result, conclude 
  that AT&T has met its burden of showing that Beehive exceeded 
  the prescribed rate of return in 1994, 1995, and 1996.

18.  On August 5, 1997, pursuant to section 204(a) of the Act,63 
  the Common Carrier Bureau's Competitive Pricing Division 
  suspended the interstate access tariff that Beehive had 
  belatedly filed on July 22, 1997 for the 1997-1999 period 
  (``Transmittal No. 6'').64  In doing so, the Suspension Order 
  stated that Transmittal No. 6 raised ``significant questions 
  of lawfulness'' about, inter alia, whether it contained rates 
  violative of section 201(b) of the Act.65  On December 2, 
  1997, the Common Carrier Bureau designated for investigation 
  various issues regarding Transmittal No. 6 and directed 
  Beehive to provide to the Commission detailed information 
  concerning its costs and revenues during 1994, 1995, and 
  1996.66

19.  On December 15, 1997, in response to the Designation Order, 
  Beehive submitted to the Commission its ``Direct Case'' 
  containing cost and revenue information for 1994, 1995, and 
  1996.67  This information indicated that, for interstate 
  services, Beehive had earned a 15.18% rate of return in 1994, 
  a 62.60% rate of return in 1995, and a 67.95% rate of return 
  in 1996, all well above the prescribed rate of return of 
  11.25%.68  Two weeks later, on December 29, 1997, Beehive 
  filed another pleading in that proceeding acknowledging the 
  accuracy of those excessive rates of return.69 

20.  The Commission has broad discretion in its adjudicatory 
  proceedings to take official notice of factual issues 
  ``related directly to the agency's expertise or relate[d] to 
  certain aspects of the parties' situation of which the 
  commission has a good deal of prior knowledge.''70  The 
  historic rate-of-return information submitted by Beehive in 
  the Commission's investigation of Beehive's Transmittal No. 6 
  falls well within such discretion.71  Consequently, we agree 
  with AT&T that we should take official notice of Beehive's 
  acknowledgement in the Commission's proceeding investigating 
  Beehive's Transmittal No. 6 that Beehive exceeded its 
  prescribed interstate access rate of return in 1994, 1995, and 
  1996.

21.  Beehive proffers several reasons why we should refrain from 
  considering AT&T's overearnings claims or taking official 
  notice of Beehive's prior statements that Beehive exceeded its 
  prescribed interstate access rate of return in 1994, 1995, and 
  1996.72  All of those reasons lack merit.

22.  First, Beehive argues that the two-year statute of 
  limitations in section 415(c) of the Act73 bars AT&T's claim 
  regarding Beehive's $.47 rate, because AT&T knew or should 
  have known of the grounds for the claim when the rate took 
  effect on July 1, 1994, more than two years before AT&T filed 
  its complaint on October 29, 1996.74  Beehive argues that 
  section 415 also bars AT&T's claim regarding Beehive's $.14 
  rate, because AT&T knew or should have known of the grounds 
  for the claim when the rate took effect on July 1, 1995, more 
  than two years before AT&T submitted supporting evidence on 
  July 2, 1997.75  It is well established, however, that the 
  statute of limitations on a claim alleging overearnings does 
  not even begin to run until the defendant carrier files with 
  the Commission final information indicating that it did, in 
  fact, overearn during a particular period.76  The record 
  contains no evidence that Beehive filed such information with 
  the Commission more than two years before AT&T filed the 
  instant complaint.77  Thus, Beehive's statute of limitations 
  defense fails.78

23.  Second, Beehive maintains that we should not take official 
  notice of information submitted in the Commission's 
  investigation of Transmittal No. 6, because such submissions 
  occurred after a statutory deadline for resolving AT&T's 
  claims in this proceeding had lapsed.79  Even assuming, 
  arguendo, the validity of Beehive's premise, Beehive's 
  conclusion does not follow.  It is well established that the 
  expiration of a statutory deadline for the Commission to act 
  does not divest the Commission of authority to continue moving 
  toward resolution of a proceeding.80  Accordingly, we have 
  authority to take official notice of information submitted in 
  the Commission's investigation of Transmittal No. 6, whether 
  or not such submissions occurred after a statutory deadline 
  for resolving AT&T's claims in this proceeding had lapsed.81  
  Thus, Beehive's statutory deadline defense fails.

24.  Third, Beehive contends that section 207 of the Act bars 
  AT&T's claims regarding the lawfulness of Beehive's rates, 
  because AT&T previously alleged the unlawfulness of Beehive's 
  rates as a defense in the Utah Court Action.82  Section 207 
  provides, in pertinent part, that ``[a]ny person claiming to 
  be damaged by any common carrier . . . may either make 
  complaint to the Commission . . . or may bring suit for the 
  recovery of the damages for which such common carrier may be 
  liable . . . in any district court of the United States . . .; 
  but such person shall not have the right to pursue both such 
  remedies.''83  Beehive overlooks the key facts, however, that 
  AT&T raised this defense in the context of a motion to dismiss 
  or stay the matter on primary jurisdiction grounds,84 and that 
  ultimately the federal court essentially granted AT&T's 
  motion.85  It is well established that section 207 does not 
  apply in the context of a primary jurisdiction referral.86  
  Thus, Beehive's section 207 defense fails.87

25.  Fourth, Beehive asserts that we should not look to the 
  Commission's investigation of Transmittal No. 6 for any 
  purpose here, because the procedural rules governing the 
  investigation were ad hoc and different from formal complaint 
  procedures; the investigation included ex parte presentations; 
  the investigation proceeded on an unlawfully abbreviated 
  schedule; the investigation concerned Beehive's 1997 
  interstate switching rates, not its 1994-1996 overall access 
  rates; and the investigation record contained no data 
  concerning Beehive's costs and demand in 1993.88  All of these 
  assertions miss the point.89  None of these assertions changes 
  the fact that, during the course of the Commission's 
  investigation of Transmittal No. 6, Beehive itself submitted 
  information to the Commission clearly indicating that Beehive 
  exceeded its prescribed interstate access rate of return in 
  1994, 1995, and 1996; and Beehive has shown nothing in the 
  investigation proceeding or in this proceeding that undermines 
  the validity of Beehive's submissions.  Thus, Beehive's 
  defense based on the nature and content of the Commission's 
  investigation of Transmittal No. 6 fails.

26.  Finally, Beehive argues that AT&T cannot challenge the 
  lawfulness of Beehive's interstate access rates in 1995-1996, 
  because AT&T refused during that time to first pay all of the 
  charges based on those rates.90  Beehive's argument fatally 
  ignores the fact that its own Tariff contemplates that a 
  customer may withhold payment of disputed charges pending 
  resolution of the dispute.91  Under the filed rate doctrine, 
  therefore, Beehive's argument fails.92

27.  In sum, Beehive presents no valid argument why we should 
  refrain from considering AT&T's overearnings claims and taking 
  official notice of information submitted by Beehive during the 
  Commission's investigation of Transmittal No. 6.  
  Consequently, we take official notice of the fact that, 
  according to Beehive's own records, Beehive earned interstate 
  access revenues above its prescribed rate of return in 1994, 
  1995, and 1996.  Moreover, nothing in the record refutes this 
  evidence.  Thus, AT&T has met its burden of demonstrating that 
  Beehive's access rates during those years were unjust and 
  unreasonable, in violation of section 201(b) of the Act.93  

28.  AT&T has not met its burden, however, of demonstrating the 
  extent to which it was damaged by Beehive's unlawful rates.  
  Although the record contains some pertinent information, the 
  record does not contain everything needed to make a precise 
  damage calculation.  Moreover, nowhere in the record does AT&T 
  explain exactly how much it believes we should award due to 
  these violations or precisely how it would calculate such an 
  amount based on record evidence.  Thus, we grant AT&T's 
  overearnings claims in Counts Four and Five of the Complaint 
  as to liability, but deny those claims as to damages.  Again, 
  however, we express no opinion as to whether AT&T may pursue a 
  damages claim in the Utah Court Action or in the parties' 
  arbitration.94

D.   AT&T Has Not Demonstrated on This Record that the Access 
     Revenue-Sharing Arrangement Between Beehive and Joy Violated 
     Section 201(b) or 202(a) of the Act. 

29.  AT&T alleges in its Complaint that the access revenue-
  sharing arrangement between Beehive and Joy breached Beehive's 
  common carrier duties, in violation of section 201(b) of the 
  Act, and constituted unreasonable discrimination, in violation 
  of section 202(a) of the Act.95  AT&T's allegations and 
  arguments are identical to those raised and denied in AT&T v. 
  Jefferson96 and AT&T v. Frontier.97  Thus, for the reasons 
  explained in those orders, we conclude that AT&T has failed on 
  this record to meet its burden of demonstrating that Beehive 
  violated either section 201(b) or section 202(a) of the Act.98  
  Therefore, we deny Counts One, Two, and Three of AT&T's 
  Complaint.99  

E.   Beehive's Complaint Lacks Merit.

30.  In its Complaint, Beehive alleges that, if (and only if) the 
  Commission were to find in this consolidated proceeding that 
  its access revenue-sharing arrangement with Joy was unlawful, 
  then the Commission must also find that AT&T's use of so-
  called Terminating Switched Access Arrangements (``TSAAs'') 
  with AT&T's end user customers is unlawful.100  Elsewhere in 
  this Order, we find that, based on the record in this 
  proceeding, AT&T has failed to meet its burden of proving that 
  Beehive's access revenue-sharing arrangement with Joy was 
  unlawful.101  Therefore, the condition precedent pled by 
  Beehive has not been satisfied, and Beehive's claims must 
  fail.102  Accordingly, we dismiss the First and Second Causes 
  of Action of Beehive's Complaint.103

31.  Beehive further alleges that, if (and only if) the 
  Commission were to find in a different pending proceeding that 
  a similar access revenue-sharing arrangement between another 
  carrier (Total Telecommunications Services, Inc.) and an 
  information provider was an unlawful attempt to evade the 
  requirements TDDRA, then the Commission must also find that 
  AT&T's use of TSAAs constituted an unlawful evasion of TDDRA, 
  as well.104  In Total Telecommunications Services, Inc., and 
  Atlas Telephone Company, Inc. v. AT&T Corp., we rejected this 
  TDDRA claim as moot,105 and AT&T did not raise a TDDRA claim 
  in its Complaint here.  Therefore, again, the condition 
  precedent pled by Beehive has not been satisfied, so Beehive's 
  claim must fail.  Accordingly, we dismiss the Fifth Cause of 
  Action of Beehive's Complaint. 106

32.  Finally, Beehive alleges that AT&T concealed material facts 
  in this complaint proceeding, in violation of sections 1.17 
  and 1.729(b) of the Commission's rules.107  These facts dealt 
  with the existence and details of certain of AT&T's TSAAs.  
  Based on our review of the entire record in this proceeding, 
  we conclude that Beehive has failed to meet its burden of 
  proving that AT&T willfully withheld material information.  
  Accordingly, we deny the Third and Fourth Causes of Action of 
  Beehive's Complaint.108

                    IV.     ORDERING  CLAUSES

33.  ACCORDINGLY, IT IS ORDERED, pursuant to sections 1, 4(i), 
  4(j), 201(b), 202(a), 203(c), and 208 of the Communications 
  Act of 1934, as amended, 47 U.S.C.  151, 154(i), 154(j), 
  201(b), 202(a), 203(c), and 208, that the above-captioned 
  complaint filed by AT&T IS GRANTED IN PART AND DISMISSED OR 
  DENIED IN PART to the extent described herein.

34.  IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j), 
  201(b), 202(a), 203(c), and 208 of the Communications Act of 
  1934, as amended, 47 U.S.C.  151, 154(i), 154(j), 201(b), 
  202(a), 203(c), and 208, that the above-captioned complaint 
  filed by Beehive IS DISMISSED AND DENIED IN ITS ENTIRETY WITH 
  PREJUDICE.

35.  IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j), 
  201(b), 202(a), 203(c), and 208 of the Communications Act of 
  1934, as amended, 47 U.S.C.  151, 154(i), 154(j), 201(b), 
  202(a), 203(c), and 208, that AT&T's May 20, 1997 Motion to 
  Dismiss, Beehive's July 16, 1997 Motion to Strike, and 
  Beehive's March 16, 1998 Petition for Reconsideration are 
  DISMISSED as moot.



                              FEDERAL COMMUNICATIONS COMMISSION  


                              Marlene H. Dortch
                              Secretary
_________________________

1         AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive 
Telephone Inc. Nevada, and Beehive Telephone Co., Inc. and 
Beehive Telephone Inc. Nevada v. AT&T Corp., Letter from Russell 
D. Lukas, Counsel for Beehive Telephone Co., to Thomas D. Wyatt, 
Associate Chief, Enforcement Division, Common Carrier Bureau, 
FCC, File Nos. E-97-04, E-97-14 (dated Jan. 21, 1998) (confirming 
that the parties agreed to the consolidation of these complaint 
proceedings during a conference call held with Commission staff 
on January 9, 1998).  
2         47 U.S.C.  208.  See AT&T Corp. v. Beehive Telephone 
Co., Inc. and Beehive Telephone Inc. Nevada, Verified Complaint, 
File No. E-97-04 (filed October 29, 1996) (``AT&T Complaint'').
3         AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive 
Telephone, Inc. Nevada, Cross Complaint, File E-97-14 (filed 
March 25, 1997) (``Beehive Complaint'').
4         47 U.S.C.  201(b).  Section 201(b) of the Act 
provides, in pertinent part, that ``[a]ll charges [and] practices 
. . . in connection with such communication service shall be just 
and reasonable, and any such charge [or] practice . . . that is 
unjust or unreasonable is hereby declared to be unlawful.''  47 
U.S.C.  201(b).
5         47 U.S.C.  203(c).  Section 203(c) of the Act states 
that a carrier must provide communications services in strict 
accordance with the terms and conditions contained in its tariff.  
47 U.S.C.  203(c).
6         AT&T Complaint at 9-12,  28-47.
7         AT&T Complaint at 6-8,  16-23.
8         47 U.S.C.  202(a).  See AT&T Complaint at 8,  24-27.  
Section 202(a) of the Act makes it unlawful ``for any common 
carrier to make any unjust or unreasonable discrimination in 
charges, practices, . . . facilities, or services for or in 
connection with like communication service . . . or to make or 
give any undue or unreasonable preference or advantage to any 
particular person.''  47 U.S.C.  202(a).
9         See generally Hi-Tech Furnace Systems, Inc. v. FCC, 224 
F.3d 781, 787 (D.C. Cir. 2000) (affirming that the complainant in 
a proceeding conducted under section 208 of the Act bears the 
burden of proof).  We also dismiss as moot AT&T's billing claims 
under section 201(b) of the Act, because they are based on the 
same facts, and seek the same relief, as the claims under section 
203(c) that we grant.
10        Beehive Complaint at 9-10, 12-13,  34-40, 54-61.
11        47 C.F.R.  1.17.  Section 1.17 of the Commission's 
rules forbids a carrier from making ``any misrepresentation or 
willful material omission bearing on any matter within the 
jurisdiction of the Commission.''  47 C.F.R.  1.17.
12        47 C.F.R.  1.729(b) (1996).  At the relevant time, 
section 1.729(b) of the Commission's rules required 
interrogatories to be answered ``fully in writing under oath or 
affirmation.''  Id.  That obligation now appears in section 
1.729(e) of our rules.  47 C.F.R.  1.729(e) (2001).
13        Beehive Complaint at 10-12,  41-53.
14        AT&T Complaint at 2-3,  2-3, 5; AT&T Corp. v. Beehive 
Telephone Co., Inc. and Beehive Telephone Inc. Nevada, Answer, 
File No. E-97-04 (filed December 18, 1996) at 1-2,  2-3, 5 
(``Beehive Answer''); AT&T Corp. v. Beehive Telephone Co., Inc. 
and Beehive Telephone Inc. Nevada, Brief for Defendants, File No. 
E-97-04 (filed June 5, 1997) at 3 (``Beehive Initial Brief''); 
Beehive Complaint at 1,  1-2.
15        AT&T Complaint at 2-3,  2-3, 5; Beehive Answer at 1-
2,  2-3, 5; AT&T Corp. v. Beehive Telephone Co., Inc. and 
Beehive Telephone Inc. Nevada, Initial Brief of AT&T Corp., File 
No. E-97-04 (filed June 5, 1997) at 1 (``AT&T Initial Brief'').
16        AT&T Complaint at 3,  6; Beehive Answer at 2,  6; 
AT&T Initial Brief at 1.
17        AT&T Complaint at 3,  6; Beehive Answer at 2,  6; 
AT&T Initial Brief at 1-2.
18        47 C.F.R.  61.39 (permitting certain small local 
exchange carriers to base their tariffed access rates upon 
historic costs and revenues).
19        AT&T Complaint at 3,  6-7; Beehive Answer at 2,  6-
7; AT&T Initial Brief at 1-2; Beehive Initial Brief at 3.
20        AT&T Complaint at 3,  7; Beehive Answer at 2,  7; 
AT&T Initial Brief at 2.
21        AT&T Complaint at 11,  44; Beehive Answer at 7-8,  
44; Beehive Initial Brief at 23-24; AT&T Initial Brief at 22.  
Beehive's current Tariff is available on the Commission web site 
at http://svartifoss2.fcc.gov/cgi-
bin/ws.exe/prod/ccb/etfs/webpublic/search.hts. 
22        AT&T Complaint at 4,  11; Beehive Answer at 3,  11; 
AT&T Initial Brief at 4.  At about that same time, AT&T began to 
refuse to pay some or all of Beehive's interstate terminating 
access charges.  Beehive Answer at 3-4,  12; Beehive Initial 
Brief at 6.  Five months later, on December 5, 1995, Beehive 
filed suit against AT&T in federal district court in Utah seeking 
to recover access charges allegedly withheld unlawfully by AT&T 
(the ``Utah Court Action'').  Beehive Answer at 3-4,  12; 
Beehive Initial Brief at 6.  On January 5, 1996, pursuant to 
Fed.R.Civ.P. 12(b), AT&T filed, in lieu of an answer, a motion to 
dismiss or stay the complaint on primary jurisdiction grounds.  
See AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive 
Telephone Inc. Nevada, Reply Brief of AT&T Corp., File No. E-97-
04 (filed July 2, 1997) (``AT&T Reply Brief'') at Exhibits C, D.  
On April 29, 1997, the federal district court stayed the Utah 
Court Action pending a ruling by the Commission in this 
proceeding.  AT&T Corp. v. Beehive Telephone Co., Inc. and 
Beehive Telephone Inc. Nevada, Letter from Peter H. Jacoby, 
Counsel for AT&T Corp., to Greg Lipscomb, Attorney, Formal 
Complaints and Investigations Branch, Enforcement Division, 
Common Carrier Bureau, FCC, File No. E-97-04 (dated May 6, 1997), 
Attachment; AT&T Reply Brief at 14-15. 
23        AT&T Complaint at 3-4,  9; Beehive Answer at 2-3,  9; 
AT&T Initial Brief at 3.
24        Beehive Initial Brief at 4 n.4; AT&T Initial Brief at 
Exhibit 4 (Defendant's Response to Complainant's First Set of 
Interrogatories), Response to Interrogatory No. 1.
25        AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive 
Telephone Inc. Nevada, Reply Brief For Defendants, File No. E-97-
04 (filed July 2, 1997) at 6 (``Beehive Reply Brief'').  
26        AT&T Complaint at 5, 11-12,  14, 43-47; Beehive 
Answer at 4,  14; Beehive Initial Brief at 23-24.  See AT&T 
Initial Brief at 23-26; AT&T Reply Brief at 24-25.
27        AT&T Complaint at 11-12,  43-47; AT&T Initial Brief 
at 23-26.
28        Beehive Initial Brief at 11.  See, e.g., Public Service 
Enterprises of Pennsylvania, Inc. v. AT&T Corp., Memorandum 
Opinion and Order, 10 FCC Rcd 8390, 8402 (1995) (stating that 
``[s]ection 203 is intended primarily to insure that carriers 
file all rates and regulations in their tariffs and abide by them 
upon all occasions.''), vacated and remanded on other grounds, 
AT&T Corp. v. FCC, 86 F.3d 242 (1996).  See also Philippine Long 
Distance Telephone v. World Communications, Inc., Order and 
Notice of Apparent Liability for Forfeitures, 8 FCC Rcd 755, 759 
n.35 (1993), recon. granted on other grounds, Philippine Long 
Distance Telephone v. World Communications, Inc., Order, 13 FCC 
Rcd 21520 (1998).
29        See AT&T Complaint at 11,  44; Beehive Answer at 7-8, 
 44; Beehive Initial Brief at 23-24; AT&T Initial Brief at 22.  
We note that AT&T failed to enter into the record section 2.6 of 
NECA Tariff F.C.C. No. 5.  This did not violate any existing 
rule, however.  At the time the complaint was filed in this 
proceeding, section 1.720(h) of the Commission's rules merely 
encouraged parties to provide copies of any relevant tariff 
provisions.  47 C.F.R.  1.720(h) (1996).  This rule has since 
been revised to require that parties provide copies of relevant 
tariff provisions.  47 C.F.R.  1.720(h) (2001).
30        NECA Tariff F.C.C. No. 5, Section 2.6, Definitions, 
Access Minutes (emphasis added).  Because neither party submitted 
into the record the version of section 2.6 of NECA Tariff F.C.C. 
No. 5 that was effective during the relevant period, we quote 
from the currently effective version of NECA Tariff No. 5 (which 
is available on the Commission web site at 
http://svartifoss2.fcc.gov/cgi-
bin/ws.exe/prod/ccb/etfs/webpublic/search.hts), and assume that 
the current version does not materially differ from the version 
in effect at the relevant time.
31        The Oxford American Dictionary of Current English 
(Oxford University Press 1999) at 665.
32        Beehive Initial Brief at 23, quoting NECA Tariff F.C.C. 
No. 5,  2.6 at 2-61 (emphasis added).
33        Beehive Initial Brief at 23-24.
34        AT&T Complaint at 13.
35        See 47 C.F.R.  1.722 (1996).
36        Beehive Initial Brief at 22; AT&T Reply Brief at 23-24; 
Beehive Reply Brief at 27.
37        Beehive alleges that the Filed Rate Doctrine bars 
AT&T's claim of overcharges based on charges for uncompleted 
calls.  Beehive Answer at 8,  50-52.  This defense is patently 
meritless.  To the extent that Beehive billed AT&T in violation 
of its Tariff and the Act, the Filed Rate Doctrine provides no 
shelter.  See, e.g., AT&T Corp. v. Business Telecom, Inc., 
Memorandum Opinion and Order, 16 FCC Rcd 12312, 12317-18,  9 
(2001).
38        In addition, we dismiss as moot Count Eight of AT&T's 
Complaint because, although based on section 201(b) rather than 
section 203(c), Count Eight is identical in all other material 
respects to Count Nine.
39        This is because this proceeding stems from a primary 
jurisdiction referral.  See paragraph 24, infra.
40        AT&T Initial Brief at 19.
41        AT&T Initial Brief at 19.
42        AT&T Complaint at 5, 10-11,  13, 38-42.
43        AT&T Initial Brief at 19.  See AT&T Complaint at 5,  
13.
44        AT&T Complaint at 5,  13; AT&T Initial Brief at 19-23; 
AT&T Reply Brief at 22-23.
45        AT&T Complaint at 5,  13; AT&T Initial Brief at 20; 
AT&T Reply Brief at 23.  The Julian calendar was adopted by 
Julius Caesar in 46 B.C.E.  The Julian calendar closely resembles 
the Gregorian calendar, as both derive from 365 days divided into 
twelve months. By the thirteenth century, however, scholars 
realized that the Julian calendar included a minor flaw, which 
resulted in the calendar slowly becoming out of sync with the 
solar year.  The flaw was this: under the Julian calendar, a year 
was 365.25 days long (i.e., an extra day was inserted every 
fourth year, typically known as a ``leap year'').  This 
significantly differs from the ``real'' length of the solar year, 
which is approximately 365.242199 days long.  This error amounted 
to slightly more than 11 minutes per year.  As a result, as the 
centuries passed, the Julian calendar became increasingly 
inaccurate with respect to the seasons.  By the 16th century, the 
Julian calendar was running nearly two weeks late.  To fix this 
growing problem, astronomers proposed eliminating ten days from 
the calendar and changing the rules regarding leap years.  Pope 
Gregory XIII adopted this proposal in 1582.  Thus, under the 
Gregorian calendar, ``leap year'' is skipped three times every 
four hundred years.  See ``Calendar,'' 15 ENCYCLOPEDIA BRITANNICA 
432, 444-46 (15th ed., 1991); Peter Meyer, ``The Julian and 
Gregorian Calendars,'' 
http://serendipity.magnet.ch/hermetic/cal_stud/cal_art.htm; L. E. 
Doggett, ``Calendars,'' 
http://astro.nmsu.edu/~lhuber/leaphist.html.
46        AT&T Complaint at 5,  13; AT&T Initial Brief at 20.  
AT&T is incorrect.  Although Pope Gregory XIII issued a papal 
decree establishing the Gregorian calendar in 1582, several 
nations continued to use the Julian calendar for some time 
thereafter.  For example, Britain (and the British colonies, such 
as America) continued to use the Julian calendar until 1752.  
Other countries that continued to use the Julian calendar include 
Sweden (switched in 1753), Japan (1873), Egypt (1875), the Soviet 
Union (1918), and Turkey (1927), to name just a few.  Alaska 
retained the Julian calendar until 1867, when it was transferred 
from Russia to the United States.  See ``Calendar,'' 15 
ENCYCLOPEDIA BRITANNICA 432, 444-46 (15th ed., 1991); Peter 
Meyer, ``The Julian and Gregorian Calendars,'' 
http://serendipity.magnet.ch/hermetic/cal_stud/cal_art.htm.
47        AT&T Reply Brief at Exhibit I; AT&T Initial Brief at 
Exhibit 3, Attachment A.
48        47 U.S.C.  203(c).  See n.28, supra.
49        See  8 and n.29, supra.
50        NECA Tariff F.C.C. No. 5, sections 2.4.1, 2.4.2 
(appended to AT&T's Initial Brief at Exhibit 7).  Although no 
provision of the NECA tariff expressly prohibits double billing, 
this duty is implied throughout section 2.4.1.  For example, 
section 2.4.1(B) states that Beehive ``shall bill on a current 
basis all charges incurred by and credits due to the customer 
under this tariff . . . .''  NECA Tariff F.C.C. No. 5, section 
2.4.1(B).
51        See AT&T Initial Brief at Exhibit 4, Response to 
Interrogatory No. 10.  For example, three Beehive bills submitted 
into the record by AT&T indicate billing periods of six, five, 
and four days.  See AT&T Reply Brief at Exhibit I.
52        Beehive Reply Brief at 26.
53        See AT&T Initial Brief at Exhibit 3, Attachment A.
54        Because of this holding, we dismiss as moot AT&T's 
claim in Count Seven that Beehive violated section 201(b), based 
on the same conduct.  
55        See AT&T Reply Brief at Exhibit I.
56        See AT&T Initial Brief at Exhibit 3, Attachment A.
57        Beehive Answer at 4,  13.
58        In order to minimize uncertainty and confusion in 
interstate access billing matters, we strongly encourage carriers 
to use the standard, generally accepted calendar.
59        Beehive alleges that the Filed Rate Doctrine bars 
AT&T's claims of unlawful billing practices.  Beehive Answer at 
8,  50-52.  This defense is patently meritless.  See supra, 
n.37.
60        AT&T Complaint at 9-10,  28-37; AT&T Initial Brief at 
26-29; AT&T Reply Brief at 20-22; AT&T Corp. v. Beehive Telephone 
Co., Inc. and Beehive Telephone Inc. Nevada, Initial Brief of 
AT&T Corp., File Nos. E-97-04, E-97-14 (filed Apr. 20, 1998) at 
8-11, 24-15 (``AT&T Supplemental Brief''); AT&T Corp. v. Beehive 
Telephone Co., Inc. and Beehive Telephone Inc. Nevada, Reply 
Brief of AT&T Corp., File Nos. E-97-04, E-97-14 (filed May 4, 
1998) at 7-13 (``AT&T Supplemental Reply Brief'').  See 
Represcribing the Authorized Rate of Return for Interstate 
Services of Local Exchange Carriers, Order, 5 FCC Rcd 7507, 7509, 
 13 (1990) (prescribing a rate of return of 11.25% for certain 
incumbent LECs, including Beehive).
61        See generally AT&T Reply Brief at 20-22 (acknowledging 
that, based on the record evidence at that time, the Commission 
could not be ``completely certain'' that Beehive had exceeded its 
prescribed rate of return).
62        AT&T Supplemental Brief at 24-25; AT&T Supplemental 
Reply Brief at 3-11.
63        47 U.S.C.  204(a) (authorizing the Commission to 
suspend a tariff and to determine whether new or revised charges 
contained in the tariff are just and reasonable).
64        Beehive Telephone Co., Inc., Tariff F.C.C. No. 1, 
Transmittal No. 6, Suspension Order, 12 FCC Rcd 11695 (Com. Car. 
Bur., Com. Pric. Div. 1997) (``Suspension Order'').
65        Suspension Order, 12 FCC Rcd at 11697,  6.
66        Beehive Telephone Co., Inc., Tariff F.C.C. No. 1, 
Transmittal No. 6, Order Designating Issues for Investigation, 12 
FCC Rcd 20249 (Com. Car. Bur. 1997) (``Designation Order'').
67        Beehive Telephone Co., Inc., Tariff F.C.C. No. 1, 
Transmittal No. 6, Direct Case, CC Docket No. 97-237 (filed Dec. 
15, 1997) (``Direct Case'').
68        Direct Case at 4, 7, 11.
69        Beehive Telephone Co., Inc., Tariff F.C.C. No. 1, 
Transmittal No. 6, Rebuttal to Opposition to Direct Case, CC 
Docket No. 97-237 (filed Dec. 29, 1997) at 13 (``Rebuttal'').  
The Commission ultimately determined that Beehive's switching 
rates in Transmittal No. 6 were excessive, and thus prescribed 
lower switching rates and ordered refunds.  Beehive Telephone 
Co., Inc., Tariff F.C.C. No. 1, Transmittal No. 6, Memorandum 
Opinion and Order, 13 FCC Rcd 2736 (1998) (``Refund Order''), 
modified on recon., Order on Reconsideration, 13 FCC Rcd 11795 
(1998), aff'd, Beehive Telephone Co., Inc. v. FCC, 180 F.3d 314 
(1999).  In so ruling, the Commission determined that Beehive's 
rate of return on switching alone was 12.2% in 1994, 111% in 
1995, and 65% in 1996.  Refund Order, 13 FCC Rcd at 2741,  13.
70        Aman & Mayton, Administrative Law  8.4.8 at 232 (West 
1993).  See 5 U.S.C.  556(e); 47 C.F.R.  1.361, 1.727(b); Fed. 
R. Evid. 201.
71        See, e.g., Bachow/Coastel, L.L.C. v. GTE Wireless of 
the South, Inc., Order on Review, 16 FCC Rcd 4967, 4968-69,  5 
(2001); In Re Applications of Chesapeake and Potomac Company of 
Virginia, Memorandum Opinion and Order, 98 F.C.C. 2d 238, 239 n.4 
(1984); Revision of the Processing Policies for Waivers of the 
Telephone Company-Cable Television ``Cross Ownership Rules,'' 
Memorandum Opinion and Order, 82 F.C.C. 2d 254, 260-61 & n.6 
(1980), recon. granted in part on other grounds, Revision of the 
Processing Policies for Waivers of the Telephone Company-Cable 
Television ``Cross Ownership Rules,'' Memorandum Opinion and 
Order, 86 FCC 2d 983 (1981).
72        AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive 
Telephone Inc. Nevada, Supplemental Brief for Defendants in File 
No. E-97-04 and Initial Brief for Complainants in File No. E-97-
14, File Nos. E-97-04, E-97-14 (filed Apr. 20, 1998) at 17-26 
(``Beehive Supplemental Brief''); AT&T Corp. v. Beehive Telephone 
Co., Inc. and Beehive Telephone Inc. Nevada, Reply Brief, File 
Nos. E-97-04, E-97-14 (filed May 4, 1998) at 8-12, 27-28 
(``Beehive Supplemental Reply Brief''). 
73        47 U.S.C.  415.
74        Beehive Supplemental Brief at 17-20; Beehive 
Supplemental Reply Brief at 22.
75        Beehive Supplemental Brief at 20-23.
76        See, e.g., MCI Telecommunications Corp. v. FCC, 59 F.3d 
1407, 1416-17 (D.C. Cir. 1995), cert. dismissed sub nom. 
BellSouth Telecommunications, Inc. v. FCC, 517 U.S. 1129 (1996), 
cert. denied sub nom. BellSouth Telecommunications, Inc. v. FCC, 
517 U.S. 1240 (1996); General Communication, Inc. v. Alaska 
Communications Systems Holdings, Inc., et al., Memorandum Opinion 
and Order, 16 FCC Rcd 2834, 2860-61,  67-68 (2001), appeal 
pending, ACS of Anchorage, Inc. v. Federal Communications 
Commission, No. 01-1059 (D.C. Cir., filed Feb. 7, 2001).
77        See generally 47 C.F.R.  65.600 (requiring local 
exchange carriers not subject to price cap regulation to file 
with the Commission an annual rate-of-return monitoring report).
78        For the same reasons, Beehive's laches defense also 
fails.  Answer at 9-12,  57-71.
79        Beehive Supplemental Brief at 20-23 (citing 47 U.S.C.  
208(b)(1)).
80        See, e.g., Contract Freighters, Inc. v. Dep't of 
Transportation, 260 F.3d 858, 860 n.3 (8th Cir. 2001); 
Southwestern Bell Telephone Co. v. FCC, 138 F.3d 746, 749-50 (8th 
Cir. 1998); Gottleib v. Pena, 41 F.3d 730, 733-37 (D.C. 
Cir.1994); 800 Data Base Access Tariffs and the 800 Service 
Management System Tariff, Order on Reconsideration, 12 FCC Rcd 
5188, 5193-94,  15 (1997).
81        Given this conclusion, we need not and do not decide 
whether the submissions at issue here occurred after a statutory 
deadline for resolving AT&T's claims in this proceeding had 
lapsed.
82        47 U.S.C.  207.  See Beehive Initial Brief at 15-16. 
83        47 U.S.C.  207.
84        AT&T Reply Brief at Exhibits D, C.
85        AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive 
Telephone Inc. Nevada, Letter from Peter H. Jacoby, Counsel for 
AT&T Corp., to Greg Lipscomb, Attorney, Formal Complaints and 
Investigations Branch, Enforcement Division, Common Carrier 
Bureau, FCC, File No. E-97-04 (dated May 6, 1997), Attachment.  
See Beehive Initial Brief at 10; AT&T Reply Brief at 14-15.
86        See, e.g., Allnet Communication Service, Inc. v. 
National Exchange Carrier Association, Inc., 965 F.2d 1118, 1122 
(D.C. Cir. 1992).
87        It is true that AT&T filed its complaint here perhaps a 
bit prematurely, a few months before the federal court granted 
AT&T's primary jurisdiction motion.  At this point, however, long 
after the court has granted AT&T's motion, dismissing AT&T's 
complaint on that basis would unduly exalt form over substance.  
This is especially true, given that Beehive has alleged no 
prejudice arising from AT&T's filing of the complaint in 
anticipation of the court's order granting referral.  Indeed, 
section 207 might not even apply here, because AT&T raised the 
issue of rate reasonableness in the context of a Rule 12(b) 
motion, not in the context of an affirmative defense or 
counterclaim.  Nevertheless, we caution future complainants that 
the mere filing of a primary jurisdiction motion in court does 
not vitiate section 207 concerns.  
88        Beehive Supplemental Brief at 23-26; Beehive 
Supplemental Reply Brief at 11-12, 27-28.
89        We note that the D.C. Circuit affirmed the Commission's 
order concluding the investigation of Transmittal No. 6, which 
found that Beehive's interstate rate of return for local 
switching in 1994-1996 was excessive, and which rejected the 
``due process'' arguments raised here.  Beehive Telephone 
Company, Inc., Tariff F.C.C. No. 1, Transmittal No. 6, Memorandum 
Opinion and Order, 13 FCC Rcd 2736 (1998), modified on recon., 
Order on Reconsideration, 13 FCC Rcd 11795 (1998), aff'd, Beehive 
Telephone Co., Inc., 180 F.3d 314 (D.C. Cir. 1999). 
90        Beehive Initial Brief at 16-17.
91        NECA Tariff F.C.C. No. 5, section 2.4.1(D).  Given this 
result, we need not decide whether Beehive's defense has any 
other flaws.
92        See, e.g., AT&T v. Central Office Telephone, Inc., 524 
U.S. 214 (1998).  Beehive also seems to argue that the filed rate 
doctrine precludes AT&T from challenging the reasonableness of 
Beehive's tariffed access rates.  Beehive Answer at 8,  50-52; 
Beehive Initial Brief at 16-17.  That argument is patently 
meritless.  It is well established that the Commission has the 
authority to determine the reasonableness of a tariffed rate in 
the context of a section 208 complaint proceeding.  See, e.g., 
AT&T Corp. v. Business Telecom, Inc., Memorandum Opinion and 
Order, 16 FCC Rcd 12312, 12317-20,  9-12 (2001).
93        We must assess the lawfulness of Beehive's rates and 
earnings in 1994 in combination with Beehive's rates and earnings 
in 1993.  See 47 C.F.R.  65.600(b), 65.702(b).  See also Virgin 
Islands Telephone Corp. v. FCC, 989 F.2d 1231 (D.C. Cir. 1993).  
Here, we conclude that Beehive's rates in 1994 were unlawful 
based, in part, on an assumption that Beehive did not materially 
underearn in 1993.  This assumption is reasonable, because 
Beehive knew that AT&T was urging us to consider information 
regarding Beehive's rates and earnings in 1994, yet offered no 
evidence (such as monitoring reports) indicating that any 
overearnings in 1994 had been offset by underearnings in 1993.  
This assumption is especially appropriate because (i) Beehive 
participated in the NECA tariff during 1993 and half of 1994, and 
(ii) the record contains some evidence that Beehive actually 
overearned in the 1993-94 period.  See AT&T Reply Brief at 
Exhibit H (a Beehive preliminary report indicating that its 
interstate rate of return during 1993-94 would be 16.93%).  
Beehive moves us to strike this (and other) evidence as untimely 
filed, AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive 
Telephone Inc. Nevada, Letter from Russell D. Lukas, Counsel for 
Beehive Telephone Co., to Greg Lipscomb, Attorney, Enforcement 
Division, Common Carrier Bureau, FCC, File No. E-97-04 (dated 
Jul. 16, 1997), but we deny that motion, because Beehive had 
ample opportunity in its briefs filed in 1998 to respond to this 
(and other) evidence, which AT&T filed in 1997.
94        See n.39, supra.
95        AT&T Complaint at 6-8,  16-27.  See AT&T Initial 
Brief at 5-19; AT&T Reply Brief at 9-12, 15-20.
96        AT&T Corp.  v. Jefferson Telephone Co., Memorandum 
Opinion and Order, 16 FCC Rcd 16130 (2001) (``AT&T v. 
Jefferson'').
97        AT&T Corp. v. Frontier Communications of Mt. Pulaski, 
Inc. et al., Memorandum Opinion and Order, 17 FCC Rcd 4041 (2002) 
(``AT&T v. Frontier'').
98        See generally Hi-Tech Furnace Systems, Inc. v. FCC, 224 
F.3d 781, 787 (D.C. Cir. 2000) (affirming that the complainant in 
a proceeding conducted under section 208 of the Act bears the 
burden of proof).  We note that, although AT&T suggests that 
Beehive's corporate relationship with Joy was somehow improper, 
see, e.g., AT&T Initial Brief at 2, 5, AT&T asserts no claim on 
this basis.
99        Moreover, we decline to reach two issues that AT&T 
raised for the first time in its briefs, because the tardy 
raising of these issues renders the record insufficient to permit 
a reasoned decision.  See, e.g., AT&T  v. Jefferson, 16 FCC Rcd 
at 16133 n.18; Consumer.Net v. AT&T Corp., Order, 15 FCC Rcd 281, 
300,  40 n.93 (1999) (declining to consider an argument raised 
for the first time in the briefs).  Cf., Building Owners and 
Managers Association International v. FCC, 254 F.3d 89, 100 n.14 
(D.C. Cir. 2001) (declining to address an issue raised cursorily 
in the brief).  Specifically, in its briefs, AT&T maintains for 
the first time that the revenue-sharing arrangement between 
Beehive and Joy also violated section 201(b) by ``evading the 
requirements'' of TDDRA.  AT&T Initial Brief at 14-16; AT&T Reply 
Brief at 9-12.  In addition, in its briefs, AT&T argues for the 
first time that Beehive's practice of billing AT&T for traffic 
terminated to Joy violated the Commission's tariff regulations.  
AT&T Initial Brief at 10-13; AT&T Reply Brief at 8-9.  
100       Beehive Complaint at 2, 9-10, 12-13,  5, 34-40, 54-
61.  See Beehive Supplemental Brief at 26-30; Beehive 
Supplemental Reply Brief at 12-18; Beehive Telephone Co., Inc. 
and Beehive Telephone Inc. Nevada v. AT&T Corp., Opposition to 
Motion to Dismiss, File No. E-97-14 (filed June 4, 1997) at 4-5.
101       See section III.D, supra.
102       Beehive filed a petition for reconsideration of a staff 
discovery ruling regarding information about AT&T's TSAAs.  
Beehive Telephone Co., Inc. and Beehive Telephone Inc. Nevada v. 
AT&T Corp., Petition For Reconsideration, File No. E-97-14 (filed 
Mar. 26, 1998); AT&T Corp. v. Beehive Telephone Co., Inc. and 
Beehive Telephone Inc. Nevada, and Beehive Telephone Co., Inc. 
and Beehive Telephone Inc. Nevada v. AT&T Corp., Letter from 
Deena M. Shetler, Attorney, Enforcement Division, Common Carrier 
Bureau, FCC, to Peter H. Jacoby, Counsel for AT&T Corp., and 
Russell D. Lukas, Counsel for Beehive Telephone Co., File Nos. E-
97-04, E-97-14 (dated Mar. 16, 1998); AT&T Corp. v. Beehive 
Telephone Co., Inc. and Beehive Telephone Inc. Nevada, and 
Beehive Telephone Co., Inc. and Beehive Telephone Inc. Nevada v. 
AT&T Corp., Letter from Deena M. Shetler, Attorney, Enforcement 
Division, Common Carrier Bureau, FCC, to Peter H. Jacoby, Counsel 
for AT&T Corp., and Russell D. Lukas, Counsel for Beehive 
Telephone Co., File Nos. E-97-04, E-97-14 (dated Mar. 24, 1998).  
As this Order makes clear, such information was not germane to 
our resolution of any of the claims by either party.  Thus, we 
dismiss Beehive's petition as moot.
103       Because we dismiss these claims on other grounds, we 
need not reach the arguably antecedent question whether these 
claims should be dismissed due to their conditional nature.
104       Beehive Complaint at 12-13,  54-61.  See Beehive 
Supplemental Brief at 26-30; Beehive Supplemental Reply Brief at 
18-19.
105       Total Telecommunications Services, Inc., and Atlas 
Telephone Company, Inc. v. AT&T Corp., Memorandum Opinion and 
Order, 16 FCC Rcd 5726, 5744  41 (2001), appeal pending, AT&T 
Corp. v. FCC, Case Nos. 01-1188, 01-1201 (D.C. Cir., filed Apr. 
20, 2001).
106       Again, because we dismiss this claim on other grounds, 
we need not reach the arguably antecedent question whether this 
claim should be dismissed due to its conditional nature.
107       Beehive Complaint at 2, 10-11,  5, 41-53.  See 
Beehive Supplemental Brief at 14-15, 30-32; Beehive Supplemental 
Reply Brief at 6-8, 23-27.
108       Because we deny these claims on other grounds, we need 
not reach the arguably antecedent question whether alleged 
violations of sections 1.17 and 1.729(b) of our rules  which 
govern carriers' dealings with the Commission, not their 
provision of telecommunication services  state a claim under 
section 208 of the Act.  In addition, because we deny Beehive's 
Complaint in its entirety, we also dismiss as moot AT&T's Motion 
to Dismiss Beehive's Complaint.  See AT&T Corp. v. Beehive 
Telephone Co., Inc. and Beehive Telephone Inc. Nevada, Motion to 
Dismiss, File No. E-97-14 (filed May 20, 1997).