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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Qwest Communications Company, LLC, Complainant, v. Budget
Prepay, Inc. d/b/a Budget Phone, and Budget Phone, Inc., Defendants. ) ) )
) ) ) ) ) ) ) ) ) ) File No.: EB-08-MD-012
MEMORANDUM OPINION AND ORDER
Adopted: April 30, 2013 Released: April 30, 2013
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order, we dismiss in part and otherwise
deny a formal complaint^ filed by Qwest Communications Company, LLC
(Qwest)^ against Budget Prepay, Inc. d/b/a Budget Phone, and Budget
Phone, Inc. (collectively, Budget) under Section 208 of the
Communications Act of 1934, as amended (Act).^ In its Complaint, Qwest
alleges that Budget violated Sections 201(b) and 203(c) of the Act by
imposing excessive interstate access service charges on Qwest for
toll-free traffic.^ As explained below, we find that Qwest's claims
are barred by the applicable statute of limitations for the initial
period at issue in the Complaint (May 2004 through March 2005), when
Budget did not have a federal access services tariff on file. With
respect to the remaining period at issue (April 2005 through August
2007), when Budget did have a federal tariff, Qwest does not show that
Budget's access charges violated its tariff and, therefore, does not
establish that Budget violated Sections 201(b) or 203(c) of the Act.
A. The Parties
2. Qwest is an interexchange carrier (IXC), providing interexchange and
toll services throughout the United States. Qwest is also the
Responsible Organization (RespOrg) for certain toll-free 8XX numbers,
and offers those numbers to other telecommunications carriers for a
fee.^ Budget is a non-facilities based competitive local exchange
carrier (LEC), leasing facilities from incumbent LECs to provide local
exchange service to end users and exchange access service to IXCs such
3. Budget offers its end user customers a pre-paid toll call service
accessed by dialing a toll-free 8XX number.^ In order to provide this
pre-paid service during the period at issue, Budget subscribed to a
series of 8XX numbers from Qwest.^ When a Budget pre-paid calling
services customer dialed one of these 8XX numbers, the underlying
incumbent LEC transported the call to Qwest. Qwest then transported
the call for ultimate delivery to Budget's pre-paid calling platform,
which validated the originating number to ensure it was a Budget
customer, and then prompted the end user to dial the called party's
number.^ In the Complaint, Qwest alleges that Budget imposed excessive
originating access charges on Qwest for this platform-bound 8XX
traffic (Platform 8XX Traffic).^
B. Budget's Access Charges
4. In order to calculate access charges, LECs such as Budget must
determine the percent of IXC access traffic that is interstate and the
percent that is intrastate.^ This determination is necessary because
interstate traffic is governed by federal rather than state tariffs,
and interstate access rates are usually different from (and often
lower than) intrastate rates. Thus, the LEC must determine how much of
an IXC's access traffic is subject to each rate. Where the
jurisdiction of a particular kind of traffic is not readily
ascertainable, LECs calculate access charges by applying a Percent of
Interstate Use (PIU) factor, which is an estimate of the percent of
interstate traffic.^ LEC interstate access tariffs typically provide
for IXCs to prepare and file periodic PIU reports with the LEC, and
also typically provide that, if traffic is jurisdictionally
indeterminate and the IXC does not file a PIU report, a "default" PIU
of 50% will be used to calculate the IXC's access charges.^ Budget,
however, had no federal tariff until 2005.
5. From the beginning of the Complaint period (May 2004) until April
2006, Qwest submitted no PIU reports to Budget for the Platform 8XX
Traffic, and Budget calculated Qwest's access charges as if the
Platform 8XX traffic were 50 percent interstate. In April 2006, Qwest
submitted its first PIU report to Budget for the Platform 8XX traffic,
and for the rest of the Complaint period, Budget applied the PIU
reported by Qwest to calculate Qwest's access charges.^
6. In May 2006, Qwest sent Budget a "Notice of Dispute," contending that
the Platform 8XX Traffic was 90% interstate and that Budget had
therefore over-billed Qwest. Qwest asserted that Budget should have
determined the actual jurisdiction of Qwest's Platform 8XX traffic to
calculate Qwest's access charges. Qwest stated, "[Budget] is capable
of determining the state in which the calls to [its] 8XX phone numbers
terminate."^ In its response to the Notice of Dispute, Budget denied
that it could determine the jurisdiction of the Platform traffic and
asserted that, because Qwest had not provided PIU reports, Budget was
entitled under its state access service tariffs to apply a "default"
50% PIU to the traffic.^ Qwest filed an informal complaint with the
Commission in May 2008, again asserting that Budget should have
determined the actual jurisdiction of the Platform 8XX Traffic.^
C. Budget's Tariff
7. Budget did not have a federal access services tariff from at least the
beginning of this dispute until March 28, 2005.^ Budget's 2005 tariff
(Tariff) was in effect from March 28, 2005 though the remainder of the
period at issue. The Tariff sets forth the manner in which the
jurisdiction of access traffic will be determined in a section headed
"Obligations of the Customer [i.e., Qwest]/Jurisdictional Report
Requirements."^ Subsection 3 of that section states in relevant part
When a Customer [i.e., Qwest] orders...8XX Toll Free..., the Telephone
Company [i.e., Budget], where the jurisdiction can be determined from the
call detail, will determine the interstate percentage as follows. For
originating access minutes, the interstate percentage will be developed on
a monthly basis by end office when the...8XX Toll Free...access minutes
are measured...when the call detail is adequate to determine the
appropriate jurisdiction. When originating call details are insufficient
to determine the jurisdiction for the call, the Customer shall supply the
projected [PIU] or authorize the Telephone Company to use the Telephone
Company developed [PIU]. In the event the Customer [i.e., Qwest] does not
supply the projected PIU and the Telephone Company [i.e., Budget] does not
have the sufficient call detail to develop a PIU, then a PIU of 50 percent
shall be used by the Telephone Company....^
A. Qwest's Claims for the Period when Budget had no Federal Tariff are
8. In its Complaint, Qwest alleges that Budget imposed excessive access
charges on the Platform 8XX Traffic from May 2004 to August 2007, and
requests damages.^ We find that Qwest's claims for the period May 1,
2004 through March 27, 2005, when Budget did not have a federal access
services tariff on file, are time-barred. These claims are governed by
Section 415(b) of the Act, which provides that "complaints against
carriers for the recovery of damages not based on overcharges shall be
filed with the Commission within two years from the time the cause of
action accrues...."^ Section 415(g) defines "overcharges" as charges
in excess of those applicable pursuant to federal tariff.^ Thus,
Qwest's claims are not based on "overcharges" as defined by Section
415(g), and its claims are subject to the two-year limitation set
forth in Section 415(b).
9. Qwest did not bring its claims within Section 415(b)'s two-year
limitations period. It is well established that a claim challenging
the lawfulness of a carrier's charges accrues when the customer
receives the carrier's invoice containing the allegedly unlawful
charges.^ Qwest received its first Budget invoice during the period
during which Budget had no tariff in June 2004, and received the last
such invoice in June 2005.^ Therefore, Qwest's claims accrued from
June 2004 through June 2005. Yet Qwest did not file its Informal
Complaint until May 2008, more than two years after its claim had
accrued even with respect to the June 2005 invoice.^
10. Qwest does not agree that its claims accrued on receipt of Budget's
invoices. Qwest invokes the discovery rule, under which a cause of
action accrues on the date of injury or, if the injury is not readily
discoverable, on the date the complainant should have discovered the
injury.^ Qwest states that it "did not know that Budget did not have a
tariff...[two years before Qwest filed its Informal Complaint] despite
having made a diligent inquiry into the facts and circumstances...."^
Qwest's argument is unavailing. The question of whether Budget had a
tariff on file with the Commission was a matter of public record and
therefore readily discoverable by Qwest. In any event, even if we
assume that Qwest reasonably did not inquire into the existence of a
Budget tariff when it received Budget's invoices, Qwest would still be
time-barred. Qwest admits that it contacted Budget in December 2005 to
challenge Budget's bills.^ Qwest cannot argue that its cause of action
began to accrue after this date. Under the discovery rule, "[a]ccrual
does not wait until the injured party has access to or constructive
knowledge of all the facts required to support its claim....Once the
prospective plaintiff is on notice that it might have a claim, it is
required to make a diligent inquiry into the facts and circumstances
that would support the claim."^
11. Qwest contends that Budget fraudulently concealed the fact that it had
no federal tariff.^ This argument is also unsuccessful. Qwest alleges
that, after failing to locate a Budget tariff in the Commission's
files or on Budget's website, it asked Budget for a copy of its
tariff, and that Budget responded that it followed the dominant
carrier rates for interstate services.^ Qwest admits that it
"understood that response [by Budget] to be an implication that Budget
did not have an interstate tariff filed with the Commission."^ Thus,
Qwest was not deceived, and the Section 415(b) limitations period is
12. In short, Qwest has not established either that it acted with due
diligence in pursuing its claims or that Budget deceived it.
Accordingly, Qwest's claims relating to the period when Budget did not
have a federal tariff -- from May 1, 2004 through March 27, 2005 --
are time-barred pursuant to Section 415(b) and are dismissed.^
B. Qwest's Claims for the Period when Budget had a Federal Tariff are
Denied Because Qwest Does Not Show that Budget Violated its Tariff.
13. We also deny Qwest's claims for the remaining period at issue (March
28, 2005 to August 31, 2007). At the beginning of this period, Budget
applied the Tariff's 50% default PIU to calculate Qwest's originating
access charges for the Platform 8XX Traffic.^ In April 2006, Qwest
submitted its first PIU report to Budget and, for the rest of the
Complaint period, Budget applied the PIU reported by Qwest to
calculate Qwest's access charges. In its Complaint, Qwest asserts that
Budget violated the Tariff because Budget should have determined the
actual interstate percentage of Qwest's Platform 8XX Traffic rather
than applying PIUs to bill for this traffic. Qwest notes that Budget's
pre-paid calling platform records reflected both the calling party
number and the called party number.^ Qwest asserts, therefore, that
"Budget possessed adequate or sufficient call detail to determine the
actual jurisdiction of the [Platform] 8XX Traffic and was obligated to
jurisdictionalize and bill that traffic accordingly...."^ Further,
Qwest alleges that, pursuant to the contract for Qwest's providing 8XX
numbers to Budget, Budget submitted a PIU report to Qwest stating that
the Platform 8XX Traffic was 100% interstate. Qwest argues that this
report "confirms that Budget knew the jurisdiction of 8XX traffic."^
14. Qwest, however, ignores the language of the Tariff. In keeping with
the industry-standard Carrier Access Billing System (CABS), under
which originating access charges are billed on an end office basis,^
the Tariff provides that Budget is to determine the actual interstate
percentage of originating traffic "by end office." Subsection 3
When a customer [i.e., Qwest] orders... 8XX Toll Free..., the Telephone
Company [i.e., Budget], where the jurisdiction can be determined from the
call detail, will determine the interstate percentage as follows. For
originating access minutes, the interstate percentage will be developed on
a monthly basis by end office...when the call detail is adequate to
determine the appropriate jurisdiction.^
This language requires Budget to "develop the interstate percentage" of
originating traffic only if Budget can do so "by end office." Therefore,
under subsection 3, determinate traffic is traffic whose jurisdiction can
be determined by end office. Subsection 3 provides further that a PIU
applies, "[w]hen originating call details are insufficient to determine
the jurisdiction for the call" - that is, when Budget cannot determine
jurisdiction "by end office." In short, Budget is obligated to determine
the actual jurisdiction of originating traffic only if it can do so "by
end office." Otherwise, the traffic is indeterminate and is billed by
applying a PIU.
15. The record is clear that Budget could not determine the jurisdiction
of the Platform 8XX Traffic "by end office," and Qwest does not
contend otherwise. In accordance with the CABS process, the underlying
incumbent LEC, not Budget, recorded the originating call detail used
to generate the access charge bills at issue, and this call detail
would have included minutes of use "by end office."^ Yet this call
detail necessarily would not reveal the jurisdiction of the Platform
8XX Traffic because Budget's end users did not dial the called party's
number until the call had left the underlying LEC's network and
reached Budget's platform. As a result, the underlying LEC had no
information as to the called party number, and therefore could not
generate records revealing whether the call was interstate or
16. Qwest asserts, however, that Budget was required to determine the
actual jurisdiction of the traffic regardless of whether it could do
so "by end office." Qwest argues first that the "the language [in
subsection 3] referencing `end office' is [merely] part of a basic
description of how an interstate percentage is developed or
implemented into billing."^ Qwest is mistaken. The language at issue
is not descriptive (there is no "such as" or "for example"), but
mandatory: "the interstate percentage will be developed...by end
office." Indeed, as stated above, the requirement that the
jurisdiction of traffic be measured "by end office" is consistent with
the industry-standard CABS process.^ Qwest argues next that the phrase
"adequate call detail" is ambiguous and should be read in Qwest's
favor.^ We find no ambiguity. In effect, Qwest asks us to read the
reference in subsection 3 to "adequate" call detail in isolation,
ignoring the subsection 3's statement that jurisdiction "will be
developed...by end office." Yet a tariff is to be construed in its
entirety, and a construction that would render a word or phrase
meaningless should be avoided.^
17. Thus, under subsection 3, Budget could not measure the actual
jurisdiction of the Platform 8XX Traffic because the interstate
percentage of that traffic could not be measured "by end office."
Accordingly, Qwest's assertion that Budget submitted a 100% PIU report
for the Platform Traffic and that, therefore, Budget knew the actual
jurisdiction of the traffic, also falls wide of the mark. Qwest does
not argue that the contract pursuant to which Budget allegedly
submitted the PIU report obligated Budget to measure traffic "by end
office." Moreover, any such PIU report would be, by definition, an
estimate of interstate use, and therefore could not establish that
Budget could measure the actual percentage of interstate traffic.^
18. In conclusion, Qwest's Complaint does not succeed. Qwest's claims are
time-barred for the initial period at issue in the Complaint, when
Budget had no federal tariff. With respect to the remaining period at
issue, Qwest fails to show that Budget violated its Tariff, and
therefore also fails to establish that Budget violated Sections 201(b)
or 203(c) of the Act.
IV. ORDERING CLAUSE
19. Accordingly, IT IS ORDERED, pursuant to Sections 1, 4(i), 4(j), 201,
203, 208 and 415 of the Communications Act of 1934, as amended, 47
U.S.C. SS 151, 154(i), 154(j), 201, 203, 208 and 415 that the
Complaint is DISMISSED to the extent indicated and otherwise DENIED,
and that THIS PROCEEDING IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
^ Formal Complaint, File No. EB-08-MD-012 (filed Dec. 30, 2008)
^ After the Complaint was filed, Qwest merged with CenturyTel Inc., d/b/a
CenturyLink. See Applications Filed by Qwest Communications, Memorandum
Opinion and Order, 26 FCC Rcd 4194 (2011).
^ 47 U.S.C. S 208.
^ 47 U.S.C. SS 201(b), 203(c). See, e.g., Complaint at 1-2, 12-16, paras.
13-22, 18-20 , paras. 27-38.
^ Second Revised Joint Statement, File No.EB-08-MD-012 (filed Sept. 20,
2010) ("Joint Statement") at 2, paras. 3 -4, 24, para. 12. A RespOrg is
the organization (usually a carrier) authorized to reserve one or more
toll-free numbers (8XX numbers) in the Service Management System toll-free
numbers database and to manage the billing, routing and other records for
those numbers. See Implementation of the Subscriber Carrier Selection
Changes Provisions of the Telecommunications Act of 1996, Third Order on
Reconsideration and Second Notice of Proposed Rulemaking, 18 FCC Rcd 5099
(2003) at 5134, para. 92; 47 C.F.R. S 52.101(b) (defining "RespOrg" as
"[t]he entity chosen by a toll free subscriber to manage and administer
the appropriate records in the toll free Service Management System for the
toll free subscriber").
^ Joint Statement at 3-4 , paras. 8-13. Budget states that the toll-free
service at issue in the Complaint does not involve use of a pre-paid
calling card. See id. at 3, para. 9.
^ Joint Statement at 4, para. 13, 24-26, para. 12. See Complaint Ex. B
(Qwest-Budget Wholesale Services Agreement).
^ Joint Statement at 4, paras. 13-15, 17-18 , paras. 4-11. Qwest delivered
the call to a third party carrier, which then transported the call to
Budget's platform. Id.
^ See Complaint at 18, paras. 28-29 (Count I), 10, para. 32 (Count II),
20, para. 38 (Count III).
^ See Joint Statement at 5, paras. 16-19; Complaint at 5-6, para. 7;
Second Amended Answer of Budget Prepay, Inc., File No. EB-08-MD-012 (filed
Mar. 24, 2009) ("Answer") at 14-15, para. 7.
^ See Joint Statement at 5-6, para. 20; Complaint at 6, para. 8; Answer at
15, para. 8.
^ See Joint Statement at 5-6, paras. 20-21; Complaint at 6-7, paras. 8-9;
Answer at 15-16, paras. 8-9.
^ Joint Statement at 7, para. 26.
^ Complaint, Canfield Dec'n, Ex. C (Notice of Dispute).
^ Joint Statement at 14, paras. 47-48; Complaint, Canfield Dec'n, Ex. C
(Kim Wilber e-mail).
^ Letter to Lisa Griffin, Enforcement Bureau, FCC, from Qwest (filed May
20, 2008) ("Informal Complaint") at 2 ("The traffic at issue here was not
of indeterminate jurisdiction."), 4 and 5 (same).
^ Joint Statement at 23, para. 27. Competitive LECs are not required to
file interstate access services tariffs. See Hyperion Telecommunications,
Inc. Petition Requesting Forbearance, Memorandum Opinion and Order and
Notice of Proposed Rulemaking, 12 FCC Rcd 8596, 8596-8601, paras. 1-9
^ Complaint Ex. A (Budget Tariff FCC No. 1) at 27-35, S 2.3.3.A.
^ Complaint Ex. A (Budget Tariff FCC No. 1) at 31, S 2.3.3.A.3; Joint
Statement at 8-9, para. 34.
^ Complaint at 21, para. 41. See Complaint at 20, para. 34 (Count III)
(Budget violated section 201(b)'s requirement that charges and practices
in connection with interstate telecommunications services be "just and
reasonable" because, without a federal tariff, "Budget had no lawful basis
for assessing on Qwest any interstate access charges...").
^ 47 U.S.C. S 415(b).
^ See 47 U.S.C. S 415(g) ("The term `overcharges' as used in this section
shall be deemed to mean charges for services in excess of those applicable
thereto under the schedules of charges lawfully on file with the
^ See, e.g., Operator Communications, Inc.v. Comtel of the South, Inc.,
Memorandum Opinion and Order, 20 FCC Rcd 19783, 19787, para. 11 (2005).
^ Joint Statement at 12, para. 42.
^ Section 415(d), which extends the section 415(b) limitations period by
an additional ninety days when, on or before expiry of the limitations
period, a carrier collects lawful service charges, does not help Qwest
because Qwest waited more than two years and ninety days from the time its
cause of action accrued to file its Informal Complaint. See 47 U.S.C. S
^ See Reply at 17 (citing Communications Vending Corp. of Arizona, Inc. v.
FCC, 365 F.3d 1064, 1073 (D.C. Cir 2004) and Sprint Communications Co. v.
FCC, 76 F.3d 1221, 1226-31 (D.C. Cir. 1996)).
^ Qwest Communications Corp.'s Reply to Second Amended Answer of [Budget],
File No. EB-08-MD-012 (filed Apr. 13, 2009) ("Reply") at 17.
^ Complaint, Canfeld Dec'n, at 2, para. 4.
^ Sprint Communications, 76 F.3d at 1228 (citations omitted).
^ Reply at 19-20. See Operator Communications, 20 FCC Rcd at 19788, para.
14 (fraudulent concealment of the facts giving rise to a claim can toll
the operation of section 415(b)); Sprint Communications, 76 F.3d at 1226
^ Complaint, Canfeld Dec'n, at 10, para. 24; Reply, Second Canfeld Dec'n
at 2, para. 4.
^ Complaint, Canfeld Dec'n, at 10, para. 24.
^ As the existence of a tariff is a matter of public record, it is
unlikely that Qwest's argument could succeed in any event. See, e.g.,
Aetna Life Ins. Co. v. AT&T, Memorandum Opinion and Order, 3 FCC Rcd 2126
(1988) at 2131, para. 16 (party alleging fraudulent concealment must
establish "that the wrongful conduct resulted in the knowing concealment
of the operative facts forming the basis of the cause of action and that
these facts were not discovered despite the exercise of due diligence");
Communications Vending, 365 F.3d at 1075 (the federal courts and the
Commission "have set a high hurdle for equitable tolling, allowing a
statute to be tolled `only in extraordinary and carefully circumscribed
instances'") (citations omitted). We do not understand how Qwest could
have been deceived by Budget's providing Qwest two pages from the 2005
Tariff in December 2006. See Reply at 18. These Tariff pages, each of
which states that it was issued on March 28, 2005, did not constitute a
representation that Budget had filed a federal tariff before that date.
See Reply, Hilton Dec'n, Ex. B (Tariff pages 34, 48).
^ Budget argues that Qwest's claims for the remaining period at issue
(March 28, 2005 to August 31, 2007) also are time-barred because the
Tariff contains a ninety-day notice of claim provision with which Qwest
allegedly did not comply, and because Qwest's Notice of Dispute and
Informal Complaint allegedly did not apprise Budget of the nature of the
dispute. Budget argues further that Qwest's claims for the remaining
period are barred by the doctrines of laches, estoppel, or waiver. See
Answer at 7-12, paras. 14-22; id., Legal Analysis, at 18-28. We do not
address these defenses here because, as discussed below, we deny Qwest's
claims for the remaining period on the merits.
^ The parties agree that the Tariff's default rate of 50% is "typical" of
LEC access tariffs. Joint Statement at 6, para. 21. See Complaint at 7,
para. 9 (explaining that LEC tariff default PIUs are "typically
established" at 50%).
^ See Joint Statement at 28, para. 2; Complaint, Canfield Dec'n, at 13,
para. 20 and Cok Dec'n at 2, paras. 3-5; Reply at 36-40.
^ Qwest Communications Company, LLC's Opening Final Brief, File No.
EB-08-MD-012 (filed Oct. 29, 2010) ("Qwest Opening Final Br.") at 1. See,
e.g., Complaint at 15 ("Because the [Platform 8XX Traffic] was
jurisdictionally identifiable, it was never subject to PIU billing under
the terms of Budget's tariff...."); Complaint, Legal Analysis, at 11
("Budget had sufficient `call detail' within the meaning of the 2005
Budget Tariff to have jurisdictionalized the [Platform 8XX Traffic]
without resort to PIU surrogates."); Qwest Opening Final Br. at 2 ("[T]he
only question is whether Budget possessed adequate or sufficient call
detail to determine the actual jurisdiction of the [Platform 8XX
^ Complaint at 14, para. 17. See id. at 2 and 14-15, paras. 17-19; Qwest
Opening Final Br. at 2, 7.
^ See Reply, Larson Dec'n, Ex. A (ATIS Multiple Exchange Carrier Access
Billing Guidelines) at 5-3 ("Current requirements for usage billing
displays at end office and summary levels remain unchanged."), 4-17 ("End
office detail must be provided by Common Language Location Identification
(CLLI) Code."), 5-2 ("Prior to implementing [Meet Point Billing],
providers must exchange End Office identifiers that appear on the
bill...."). See also Answer, Robertson Dec'n, at Ex. 1 (Budget access bill
for Qwest dated Feb. 26, 2007) (showing minutes of use and other
information by end office). An "end office" is the point at which an end
user's loop connects with the LEC switch. See, e.g., 47 C.F.R. S 69.2(pp)
(defining "end office").
^ Complaint Ex. A (Tariff) at 31, S 2.3.3.A.3 (emphasis added). Subsection
3 governs Qwest's initial access services order: "When a customer
orders....8XX Toll Free...". Id. Subsequent periods are governed by Tariff
subsection 6, which requires Qwest to submit quarterly PIU reports except
where Budget is able to determine the actual jurisdiction of the traffic
"as set forth in [subsection] 3. preceding." Id. at 31, S 2.3.3.A.6.
Subsection 6 provides further that, if Qwest fails to fulfill its
quarterly PIU report obligation, a default 50% PIU applies. Id.
^ See Answer, Marnell Dec'n, at 2-4, paras. 6-11, 6, para. 19; Reply,
Canfield Dec'n, at 7-8, para. 10.
^ See Joint Statement at 17-18, paras. 3-11, 20, para. 2(f); Final Brief
of Budget Prepay, Inc., File no. EB-08-MD-012 (filed Nov. 12, 2010)
("Budget Final Br.") at 4-7; Qwest Complaint, Legal Analysis, at 9 ("[T]he
jurisdiction of calls within the [Platform] 8XX Traffic could not be
ascertained by reference solely to the call records provided by the
facilities-based local exchange carrier associated with [the first] leg of
the call...."). Further, Budget's platform did not identify the end office
associated with the call. See Joint Statement at 28-30, paras. 1-17
(describing the call detail recorded at Budget's platform). Moreover, even
if Budget's platform records did have call detail by end office, this
information could not reasonably have been integrated into the CABS
process because, as noted, the underlying ILEC, not Budget, generates the
records used to bill IXCs such as Qwest. See, e.g., Answer, Robertson
Dec'n, at 2-6, paras. 5-18 (explaining the generation of Exchange Message
Interface (EMI) records).
^ Qwest Communications Company, LLC's Reply Final Brief, File No.
EB-08-MD-012 (filed Nov. 19, 2010) ("Qwest Reply Final Br.") at 2. See
Qwest Opening Final Br. at 5 n.12 (arguing that the Tariff's "end office"
language "simply describes basic characteristics of an interstate
percentage and how it is developed or implemented into billing").
^ See supra para. 14 (noting that, under CABS, originating access charges
are billed by end office).
^ See Complaint, Legal Analysis, at 11 (citing Durbin Paper Stock Co. v.
ICC, 585 F.2d 543, 544 (D.C. Cir. 1978) for the proposition that
ambiguities in a tariff are construed against the drafter); Qwest Opening
Final Br. at 5, 12-13; Qwest Reply Final Br. at 3.
^ See, e.g., U.S. v. Missouri-Kansas-Texas Ry. Co., 194 F.2d 777, 778-779
(5^th Cir. 1952); Christensen v. No. Pacific Ry. Co., 184 F.2d 534, 536
(8^th Cir. 1950); Burrus Mill & Elevator Co. of Oklahoma v. Chicago, Rock
Island & Pac. Ry. Co., 131 F.2d 532, 534 (10^th Cir. 1942). See also
Restatement (Second) of Contracts S 203 (1981) ("In the interpretation of
a promise..., the following standards of preference are generally
applicable: (a) an interpretation which gives a[n]...effective meaning to
all the terms is preferred to an interpretation which leaves a part...of
^ As Qwest itself repeatedly emphasizes, a PIU is an estimate of
jurisdiction. See, e.g., Reply at 46 ("PIUs are not supposed to be applied
to determinate traffic...."); id. at 47 ("Budget's tariff...call[s] for
Qwest to be billed for traffic of determinate jurisdiction based on its
actual and known jurisdictional mix and to be billed for traffic of
indeterminate jurisdiction based on PIUs.... PIUs used for the second
category of traffic (indeterminate traffic)...do not impact the first
category (determinate traffic)."). Qwest does not establish that Budget
did, in fact, file such a report. See Budget Final Br. at 2-3 (arguing
that the only evidence of Budget's 100% PIU report is equally consistent
with Qwest itself having input a 100% Budget PIU into its computer
system). See also Qwest Opening Final Br. at 9 (arguing for the first time
that Budget could have developed a PIU for the Platform 8XX Traffic
without explaining how that PIU would have satisfied Budget's obligation
to determine the actual jurisdiction of the traffic); Qwest Reply Final
Br. at 2-3 (same).
(Continued from previous page)
Federal Communications Commission DA 13-773
Federal Communications Commission DA 13-773