Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
)
MAP Mobile Communications, Inc.,
)
Complainant,
)
v.
)
Illinois Bell Telephone Company, Indiana
Bell Telephone Company, Incorporated, ) File No. EB-05-MD-013
Michigan Bell Telephone Company, The Ohio
Bell Telephone Company, Wisconsin Bell, )
Inc., Pacific Bell Telephone Company, and
)
Southwestern Bell Telephone, L.P.,
)
Defendants.
)
)
)
)
Memorandum opinion and order
Adopted: May 13, 2009 Released: May 13, 2009
By the Chief, Enforcement Bureau:
I. introduction
1. In this Memorandum Opinion and Order, we grant in part and otherwise
dismiss or deny the claims alleged in the formal complaint that MAP
Mobile Communications, Inc. ("MAP") filed against Illinois Bell
Telephone Company, Indiana Bell Telephone Company, Incorporated,
Michigan Bell Telephone Company, The Ohio Bell Telephone Company, and
Wisconsin Bell, Inc. (collectively, the "Midwest ILECs"), and against
Pacific Bell Telephone Company ("PacBell") and Southwestern Bell
Telephone, L.P. ("SWBT") under section 208 of the Communications Act
of 1934, as amended ("Act"). In short, the Complaint alleges that
Defendants violated sections 201(b), 251(b)(5), and 415 of the Act,
and sections 20.11, 51.703, and 64.2401 of the Commission's rules, by
(a) unlawfully charging MAP for (i) transport and termination of
Defendant-originated traffic and (ii) services that MAP cancelled or
never requested; (b) failing to pay MAP for terminating local traffic;
(c) providing unclear and confusing bills; and (d) demanding payment
of charges that were more than two years old. MAP bifurcated its
claims for damages pursuant to the Commission's rules, and thus this
Order addresses MAP's liability claims only.
2. As explained below, we dismiss without prejudice those portions of the
Complaint that relate to PacBell, because MAP's interconnection
agreement with PacBell requires MAP to resolve its claims against
PacBell in a proceeding before the California Public Utilities
Commission ("California PUC"). Moreover, we grant MAP's claims
alleging that the Midwest ILECs and SWBT violated section 201(b) of
the Act and section 51.703(b) of the Commission's rules by charging
MAP for the transport and termination of certain intraMTA traffic that
originated on their networks. Because our ruling under section 201(b)
of the Act and section 51.703 of the Commission rules will afford MAP
all the relief to which it is entitled for the unlawful transport and
termination charges, we find it unnecessary to address counts in the
Complaint alleging that these charges also violated section 251(b)(5)
of the Act, and we dismiss those counts without prejudice. We deny
MAP's other claims.
II. background
3. MAP is a Commercial Mobile Radio Service ("CMRS") carrier that
provided one-way paging services in California and several Midwestern
states from the mid-1990s until 2004. SWBT, PacBell, and the Midwest
ILECs are all incumbent local exchange carriers ("incumbent LECs")
under the Act.
4. To provide its paging services, MAP interconnected its network with
the public switched telephone network in Defendants' service areas via
interconnection facilities MAP ordered from Defendants. In 1998, MAP
and PacBell entered into an interconnection agreement pursuant to
section 252(i) of the Act. MAP never executed an interconnection
agreement with either SWBT or the Midwest ILECs, however. Instead,
beginning in the mid-1990s, MAP ordered various interconnection
facilities from SWBT's and the Midwest ILECs' tariffs, and SWBT and
the Midwest ILECs billed MAP for these facilities in accordance with
the tariffs' terms.
III. Discussion
A. The Claims Against PacBell Are Dismissed Without Prejudice.
5. The Interconnection Agreement directs MAP and PacBell to use certain
California PUC dispute resolution procedures to resolve any disputes
arising under the Agreement. Defendants ask that we dismiss all claims
relating to PacBell in deference to that provision. MAP responds that
(1) the Interconnection Agreement is no longer in effect; (2) the
Agreement's dispute resolution provision is not mandatory; and (3)
even if the dispute resolution provision does apply, the Commission
should nevertheless adjudicate the Complaint.
6. For the reasons below, we find that the Interconnection Agreement
remains in force, that it requires the parties to follow the
California PUC's dispute resolution process to resolve the present
dispute, and that MAP has provided no justification for overriding the
parties' agreement to follow that process. We therefore dismiss
without prejudice those portions of the Complaint that assert claims
against PacBell. MAP may pursue resolution of those claims by
following the California dispute resolution procedures referenced in
the parties' Interconnection Agreement.
1. The Interconnection Agreement Between MAP and PacBell Still Governs.
7. The initial term of the Interconnection Agreement ended on June 20,
1999. The Agreement provides that, after that date, "the Agreement
shall continue in force and effect unless and until terminated as
provided herein." The relevant termination option states:
[E]ither Party may terminate this Agreement by providing written notice of
termination to the other Party, such written notice to be provided at
least sixty (60) days in advance of the date of termination. Upon delivery
of a notice of termination as set forth above, the Parties shall within
thirty (30) days commence negotiations in good faith to reach a new
interconnection agreement. At least one-hundred and twenty (120) days
prior to the expiration of this Agreement, the parties shall enter into
negotiations to reach a new interconnection agreement. In the event of
such negotiations, this Agreement shall continue in effect until a new
interconnection agreement becomes effective.
8. On August 27, 1999, SWBT, on behalf of PacBell, sent MAP a letter
stating that:
The initial term of the interconnection agreement between Map Mobile
Communications, Inc. and Pacific Bell ended June 20, 1999. Pursuant to
Section 14.1 of the Agreement, Pacific Bell, by this letter, is providing
Map Mobile Communications, Inc. written notice of termination at least 60
days in advance of the actual date of termination. As required by the
Agreement, Pacific Bell is ready to begin negotiations, within 30 days of
your receipt of this notice, for a new interconnection agreement. ... The
current agreement will remain in effect until replaced by a new agreement.
9. Apparently, no negotiations for a new interconnection agreement ever
took place, although neither party explains why. Thus, the original
Interconnection Agreement was never replaced by a new one.
10. The parties have opposite views of the effect of the August 27, 1999
Letter. MAP argues that the August 27, 1999 Letter set the date for
termination of the agreement 60 days later, i.e., October 26, 1999.
MAP thus contends that the Agreement terminated on October 26, 1999
and, because the parties never negotiated a successor agreement, their
interconnection relationship was no longer governed by contract after
that date. Defendants, however, characterize the August 27, 1999
Letter as indicating merely PacBell's intention to terminate the
original agreement upon the successful negotiation of a new one.
Defendants argue that, because no successor agreement was negotiated,
the Interconnection Agreement was never terminated and remains in
effect today.
11. We find that the record supports Defendants' view. MAP's assertion
that the Interconnection Agreement terminated 60 days after the August
27, 1999 Letter conflicts with the language of both the Letter and the
Agreement. According to MAP, the Interconnection Agreement does not
require the parties to specify an actual date of termination because,
"once a party to the [Interconnection Agreement] provides the other
party with a written notice of termination, the 60-day termination
period is activated." The Agreement, however, says that written notice
must be given "at least 60 days in advance" of termination, not that
termination will automatically occur on the 60th day after notice is
given. In other words, the Agreement's 60-day notice period is a
minimum, not a maximum. Thus, the Agreement did not, by its own terms,
terminate on October 26, 1999. Similarly, consistent with the
Agreement's notice requirement, the August 27, 1999 Letter stated that
PacBell was giving "written notice of termination at least 60 days in
advance of the actual date of termination," thus making clear that any
termination would occur not sooner than 60 days, and could occur much
later than 60 days after the Letter. Moreover, as permitted by the
Agreement, the Letter also states that "[t]he current agreement will
remain in effect until replaced by a new agreement." Consequently, the
Letter plainly expresses the permissible intent to terminate not in 60
days, but only after the negotiation of a new agreement.
12. MAP also argues that the Agreement establishes a "condition precedent"
requiring the parties to negotiate for a new agreement in order for
the original one to remain in place after the August 27, 1999 Letter.
This argument rests on language in a portion of Section 14.1 of the
Interconnection Agreement stating that "[i]n the event of such
negotiations, this Agreement shall continue in effect until a new
interconnection agreement becomes effective." Because there were no
negotiations, MAP reasons, the Agreement terminated 60 days after the
August 27, 1999 Letter. We disagree. MAP's "condition precedent"
argument presumes, erroneously, that the parties intended to terminate
the old agreement in the event negotiations for a new agreement did
not occur within 60 days. That presumption is flatly contradicted by
language in Section 14.1 stating without qualification that "the
Agreement shall continue in force and effect unless and until
terminated as provided herein." Because the August 27, 1999 Letter did
not terminate the Agreement, the parties' failure to negotiate a new
agreement did not end their contractual relationship; rather, the
parties remained bound by the original Agreement.
13. In addition, MAP's conduct subsequent to the August 27, 1999 Letter
confirms that it understood the Agreement to remain in effect. Until
it ceased paging operations in 2004, MAP continued to bill PacBell for
reciprocal compensation under the terms of the Agreement, issuing
numerous invoices with the express title: "Billing under Paging
Interconnection Agreement dated April 16, 1999." In addition, in April
2001, a senior MAP executive sent PacBell a letter in which he
affirmed that "[w]e currently have an interconnection agreement with
Pacific Bell that covers our activities in California ... ." Thus,
until it filed this Complaint, MAP, too, apparently believed it still
had an interconnection agreement with PacBell. This evidence provides
further support for our conclusion that the Agreement did not
terminate in 1999, as MAP now contends. Accordingly, we hold that the
Interconnection Agreement, including its dispute resolution provision,
remained effective throughout the relevant period.
1. The Interconnection Agreement Requires the Parties to Use the
California PUC's Dispute Resolution Procedures.
14. Defendants argue that we should dismiss MAP's claims against PacBell,
because Section 28 of the Interconnection Agreement prohibits MAP from
bringing those claims to this Commission. For the following reasons,
we agree.
15. Section 28 of the Interconnection Agreement provides:
[I]n the event of any dispute arising under this Agreement ... the Parties
shall first meet and confer to discuss in good faith the Dispute and seek
resolution prior to taking any action before any court or regulatory
authority, or before making any public statement about or disclosing the
nature of the Dispute to any third party. ... Thereafter, the Parties
shall comply with the dispute resolution procedures set forth in pages
36-39 of [California Public Utilities] Commission Decision 95-12-056."
The plain meaning of the foregoing provision is that, in the event of any
dispute arising under the Agreement, the parties shall comply with the
California PUC's dispute resolution procedures. This language makes clear
that the parties chose the California procedures as their exclusive
remedy, precluding any remedy here.
16. MAP argues, however, that section 28 does not constitute a mandatory
forum selection clause, but rather is "vague and permissive," allowing
but not requiring use of the California procedures. According to MAP,
because Section 28 refers to meeting to seek resolution prior to
"taking action before any court or regulatory authority," it cannot
mean that the California PUC is the exclusive forum for resolving
disputes. We disagree. The reference to "any court or regulatory
authority" does not conflict with the directive that the parties
"shall comply" with California dispute resolution procedures. For
instance, in following the California procedures, a party could
ultimately pursue action before a regulatory authority (a complaint
before the PUC) or a court (appeal of the PUC's ruling).
17. We also reject MAP's sweeping assertion, based on a single case, that
"[f]ederal courts have held that contract language pertaining to
compliance with dispute resolution procedures is permissive, and does
not confer exclusive jurisdiction upon any forum." The case MAP cites
merely indicates that one must examine the specific language of a
dispute resolution provision in order to determine whether it is
mandatory or permissive. In this case, the Interconnection Agreement
clearly identifies the California PUC procedures as the exclusive
remedy - "in the event of any dispute ... the Parties shall comply
with the dispute resolution procedures ... ." Consequently, the
Interconnection Agreement requires the parties to proceed before the
California PUC rather than here.
3. The Interconnection Agreement's Dispute Resolution Procedures Should Be
Enforced.
18. MAP argues that the Commission should rule on its claims against
PacBell, notwithstanding any agreement to follow California's dispute
resolution process. In support of this argument, MAP cites the
Enforcement Bureau's order in Broadview Networks, Inc. v. Verizon Tel.
Cos. There, the Bureau concluded, correctly, that an agency should
honor dispute resolution agreements including valid forum-selection
clauses, absent a compelling reason not to do so. The Bureau noted
that such compelling circumstances may exist when (1) the complaint
concerns a dispute that lies at the core of an agency's enforcement
mission; (2) the dispute "inevitably touches commercial relationships"
among many participants in the relevant industry; (3) the dispute
involves interpretation of facially clear contract language (as
opposed to the interpretation of ambiguous contract language or the
application of contract language to particular facts); or (4) the
alternative dispute resolution process would be a waste of time.
Applying these criteria, the Bureau decided to defer a decision on the
Broadview complaint pending a commercial arbitration proceeding.
19. Citing the first, second, and fourth Broadview criteria, MAP argues
that there are compelling reasons to set aside the dispute resolution
terms in its Agreement with PacBell. For the following reasons, we
disagree.
20. Regarding the first Broadview criterion, resolution of MAP's claims
against PacBell does not lie at the core of the agency's enforcement
mission. MAP essentially argues that, simply because it alleges a
violation of the Act and Commission rules, the dispute lies at the
core of our mission. We disagree. Here, MAP's claims against PacBell
can be resolved largely, if not entirely, by interpreting and
enforcing the parties' Agreement, a task that falls squarely within
the coordinate expertise of the forum chosen by the parties - the
California PUC. To the extent that federal interconnection law is
implicated, construing such law in the context of a particular dispute
also falls squarely within the California PUC's expertise.
Consequently, resolving this dispute regarding the proper
interpretation of the parties' Interconnection Agreement does not lie
at the core of the Commission's mission.
21. Regarding the second Broadview criterion, a decision here would not
inevitably affect many industry participants. As in Broadview, this
dispute between two parties about the meaning of their interconnection
agreement will have no direct and immediate impact on third parties,
beyond the usual precedential effect of any Commission decision. That
is not enough to override the interest in enforcing the parties'
choice of forum.
22. Turning to the fourth Broadview criterion, we reject MAP's assertion
that it would be "a waste of everyone's time and energy" to submit its
claims against PacBell to the California procedures, because the
Commission would have to decide similar issues regarding the other
defendants. No other portion of this case will be resolved by
reference to the terms of the parties' Interconnection Agreement in
California, and thus it would not be wasteful for the parties to
follow the agreed-upon procedures for enforcing that Agreement.
23. Neither are we persuaded to override the parties' choice of forum
because the California PUC dismissed without prejudice a complaint
that PacBell filed against MAP four months after MAP initiated this
proceeding. The California PUC found that PacBell's complaint raised
many of the same issues presented in this proceeding, and thus
concluded that prosecuting simultaneous actions would be inefficient
and would risk inconsistent results. The California PUC reached that
conclusion, however, without addressing the parties' forum selection
clause. Moreover, nothing in the California PUC's decision suggests
that it lacks authority to resolve the issues between the parties; in
fact, the PUC noted that if the Commission did not resolve the issues
raised in PacBell's complaint, then PacBell could petition the PUC to
reopen the case with no adverse consequences. Thus, the California PUC
decision provides no basis to disregard the parties' agreement to
resolve disputes at the PUC.
* * * *
24. In sum, we find that (i) MAP and PacBell agreed to follow only the
California dispute resolution procedures cited in the Interconnection
Agreement; (ii) the Agreement remains in effect; and (iii) no
compelling reason exists to override the parties' Agreement.
Accordingly, we dismiss without prejudice Counts X, XI, XII, and XXIV
of the Complaint.
A. SWBT and the Midwest ILECs May Not Charge MAP for Facilities and
Services Used for IntraMTA Traffic that Originated on Their Networks,
but May Charge for Facilities and Services Used for Transiting
Traffic.
25. MAP alleges that, since approximately February 1997, SWBT and the
Midwest ILECs have violated sections 201(b) and 251(b)(5) of the Act,
and section 51.703(b) of the Commission's rules (especially as
construed by TSR Wireless v. US West), by billing MAP for facilities
and services related to "intraMTA" traffic originated on SWBT's and
the Midwest ILECs' networks. In response, SWBT and the Midwest ILECs
argue that the Commission has not expressly prohibited carriers from
charging for any costs incurred for transporting traffic to paging
carriers' networks. In their view, section 51.703(b), as interpreted
by TSR Wireless v. US West, "only prohibits LECs from charging paging
carriers for facilities used to deliver `LEC-originated, intraMTA
traffic to the paging carrier's point of interconnection'" and,
conversely, provides that paging carriers are "responsible for charges
for facilities ordered from the LEC to connect points on the paging
carrier's side of the point of interconnection." They argue that
"[t]he facilities that MAP ordered to connect its network to SWBT's
and the Midwest ILECs' networks lie on MAP's side of such points of
interconnection" and that these facilities are therefore not subject
to the prohibition against origination charges.
26. In support of their view that the interconnection facilities lie on
MAP's side of its point of interconnection ("POI") with the
Defendants, and thus outside the scope of the section 51.703(b)
prohibition, SWBT and the Midwest ILECs cite section 251(c)(2) of the
Act, which requires incumbent LECs to provide interconnection "at any
technically feasible point within the [incumbent LEC's] network[.]"
They argue that, by requiring interconnection only "within" an
incumbent LEC's network, section 251(c)(2) specifies that "the point
of interconnection between an ILEC network and the network of another
carrier must be on the ILEC's network," which they construe to mean a
point at the incumbent LEC's "central or tandem offices." SWBT and the
Midwest ILECs thus maintain that because the POI was not located in
one of their tandem or central offices, the facilities they used to
deliver traffic to MAP fall outside their networks.
27. SWBT and the Midwest ILECs attempt to bolster this argument by citing
language in the Commission's Triennial Review Order indicating that
the dedicated transport unbundled network element ("UNE") includes
only transmission facilities between incumbent LEC switches and wire
centers, and does not include transmission facilities connecting a
competing carrier's network to an incumbent LEC's network. According
to SWBT and the Midwest ILECs, this language defined the "transmission
links" that carriers purchase in order to connect their networks to
incumbent LEC networks, i.e., entrance facilities, as falling outside
the boundaries of an incumbent LEC's networks. Thus, SWBT and the
Midwest ILECs argue that, because the facilities MAP ordered are used
to connect its network to their networks, these facilities lie outside
SWBT's and the Midwest ILECs' networks, and MAP must provision those
facilities itself or purchase them from another source, such as from
applicable tariffs.
28. We disagree that SWBT and the Midwest ILECs may bill MAP for all of
the interconnection facilities and services at issue in this dispute.
Section 51.703(b) of the Commission's rules prohibit LECs from
charging CMRS carriers for traffic originated on their networks.
Applying that law (and section 332 of the Act) in the context of
LEC-CMRS interconnection, the Commission has clearly held that, in the
absence of an agreement to the contrary, LECs cannot charge one-way
paging carriers for facilities and services used to deliver
LEC-originated traffic to the paging carrier's network, where the
traffic originates and terminates within the same MTA. Specifically,
in TSR Wireless v. US West, the Commission ruled, regarding dedicated
T-1 circuits connecting an incumbent LEC's offices to a paging
carrier's network and provided by the incumbent LEC in the absence of
an interconnection agreement, that to the extent that the "T-1 is
situated entirely within an MTA, [the incumbent LEC] must provide this
facility at its own expense." Here, as in TSR Wireless, Defendants
have provided interconnection facilities directly connecting their
offices to a paging carrier's network in the same MTA. Accordingly,
given that they have no interconnection agreement with MAP specifying
to the contrary, under TSR Wireless, the default prohibition on
origination charges applies to the facilities at issue. We note that,
most recently, the Commission reaffirmed the TSR Wireless holding in
Mountain Communications, Inc. v. Qwest, which addressed Qwest's
imposition of charges for transport facilities interconnecting its
switches to the terminal of a paging carrier. The Commission concluded
that Qwest violated 51.709(b) of our rules "by improperly charging
Mountain for delivering one-way paging traffic that originated and
terminated in the same Major Trading Area."
29. We find unavailing Defendants' argument that the alleged interaction
of section 51.703(b) of the Commission's rules and section 251(c)(2)
of the Act demonstrates that they may charge for originating traffic
over interconnection facilities. Defendants' position is undermined by
section 51.709(b) of the Commission's rules, which expressly provides
that "[t]he rate of a carrier providing transmission facilities
dedicated to the transmission of traffic between two carriers'
networks shall recover only the costs of the proportion of that trunk
capacity used by an interconnecting carrier to send traffic that will
terminate on the providing carrier's network." Section 51.709(b) thus
specifically prohibits an incumbent LEC from charging for the use of
interconnection facilities in connection with incumbent LEC-originated
traffic. This prohibition in section 51.709(b) merely "applies the
general principle of section 51.703(b) - that a LEC may not impose on
a paging carrier any costs the LEC incurs to deliver LEC-originated,
intraMTA traffic, . . . to the specific case of dedicated facilities,"
and thus it is encompassed by the more general prohibition under
section 51.703(b).
30. Moreover, contrary to Defendants' view, the Triennial Review Order did
not modify the Commission's rules with respect to a LEC's
interconnection obligations with one-way paging providers under
sections 251(b)(5) and 332 of the Act or sections 20.11 and 51.703(b)
of the Commission's rules. Rather, the portion of the Triennial Review
Order cited by Defendants, which was remanded on appeal, involved
unbundling obligations pursuant to interconnection agreements under
section 251(c)(3) of the Act, not charges for interconnection. Thus,
nothing in the Triennial Review Order permits SWBT and the Midwest
ILECs to bill MAP for all of the interconnection facilities and
services at issue in this dispute.
31. Nor is there any basis to conclude that the prohibitions in sections
of 51.703(b) and 51.709(b) of our rules do not apply in this case. It
is undisputed that the direct interconnection facilities at issue were
dedicated to the direct transmission of traffic between MAP and SWBT
or the Midwest ILECs, and were located within the MTA where the
traffic at issue originated. Further, the parties did not have an
interconnection agreement that required the POI to be located in a
central or tandem office within SWBT's or the Midwest ILECs' networks.
Nor is there any evidence in the record establishing that the
facilities were used solely to connect facilities within MAP's CMRS
networks by, for example, linking MAP's paging terminal with its
antenna. As applied to these facts, the Act and implementing
Commission rules and orders prohibit SWBT and the Midwest ILECs from
charging MAP for the interconnection facilities and services they
provided to MAP, to the extent such facilities and services were used
to deliver intraMTA traffic originated on their networks to MAP's
point of interconnection. Our analysis here is limited to the facts of
this case, which involve direct interconnection, and we do not address
the case of indirect interconnection and which parties pay for such
facilities under that scenario.
32. We therefore grant, to the extent indicated herein, Counts IV, VI, VII
and IX of the Complaint. Because our ruling under section 201(b) of
the Act and section 51.703 of the rules will afford MAP all the relief
to which it is entitled for the unlawful transport and termination
charges, we find it unnecessary to address Counts V and VIII in the
Complaint alleging that these charges also violated section 251(b)(5)
of the Act, and we dismiss those counts without prejudice.
33. We hasten to add, however, that MAP is obligated to pay the tariffed
charges for the facilities and services provided by SWBT and the
Midwest ILECs to deliver "transiting traffic" to MAP, i.e., traffic
originated by customers of carriers other than SWBT and the Midwest
ILECs. We disagree with MAP's contention that it can avoid paying for
transiting traffic because SWBT and the Midwest ILECs did not specify
a transiting rate or factor in their tariffs. The Commission has
repeatedly and clearly held that paging carriers are "required to pay
for `transiting traffic.'" In so ruling, the Commission has never
suggested that this obligation to pay is contingent on proof that the
carriers providing the interconnection facilities have provisions in
their tariffs specifying either a transiting factor or rate to be
applied against traffic carried over the facilities. MAP has not
provided any compelling reason to depart from this precedent here.
34. Indeed, we note that, instead of negotiating an interconnection
arrangement with SWBT and the Midwest ILECs specifying, inter alia, a
transiting factor, MAP chose to order interconnection facilities and
services from tariffs. The fact that SWBT's and the Midwest ILECs'
tariffs did not specify a transiting factor does not negate their
right to charge MAP for facilities and services used to deliver
transiting traffic. Accordingly, we deny MAP's claims to the extent
they allege that SWBT and the Midwest ILECs acted unlawfully by
charging MAP for transiting traffic.
A. SWBT and the Midwest ILECs Did Not Violate Section 20.11 of the
Commission's Rules By Failing to Pay MAP Reasonable Compensation for
Which They Were Never Billed.
35. MAP alleges that SWBT and the Midwest ILECs violated section 20.11 of
the Commission's rules by failing to compensate MAP for terminating
traffic that originated on their networks. In response, SWBT and the
Midwest ILECs argue, inter alia, that MAP's claims for reasonable
compensation should be denied because MAP never submitted a single
bill to SWBT or the Midwest ILECs for such charges. As discussed
below, we agree with SWBT and the Midwest ILECs.
36. Even assuming that MAP had a right under section 20.11 to impose
compensation charges on SWBT and the Midwest ILECs in the absence of
any agreement between the parties, MAP cannot complain about their
failure to pay such charges, when the undisputed record shows that MAP
never issued a single bill for the charges. Contrary to MAP's
suggestion, the right to reasonable compensation under rule 20.11 is
not entirely self-effectuating.
37. We reject MAP's suggestion that the Commission's decision in AirTouch
Cellular v. Pacific Bell supports MAP's right to receive reasonable
compensation. In Airtouch Cellular v. Pacific Bell, the Commission
held that Pacific Bell should have paid mutual compensation to a CMRS
carrier pursuant to rule 20.11, even though the ILEC's interconnection
agreement with the CMRS carrier was silent regarding mutual
compensation. The Commission did not indicate that the non-contractual
right to compensation recognized in Airtouch extends beyond the
circumstances presented in that case, where the parties had entered
into a one-way compensation agreement that contained no waiver of the
right to mutual compensation. Even assuming that section 20.11
provides a broader non-contractual right to compensation, however, the
Airtouch decision nowhere states that carriers must pay for reasonable
compensation in the absence of receiving bills. Similarly, MAP's
reliance upon general language in the Commission's T-Mobile
Declaratory Ruling that rule 20.11 establishes default rights to
LEC-CMRS compensation is also unavailing. The T-Mobile Declaratory
Ruling primarily addressed the issue of LECs imposing termination
charges on CMRS carriers via state tariffs in the absence of an
interconnection arrangement. It says nothing about an obligation to
pay such charges in the absence of receiving bills.
38. Consequently, we deny MAP's claims under rule 20.11 (Counts XV and
XVI) for compensation not reflected in any bills to SWBT or the
Midwest ILECs.
A. The Midwest ILECs Have Not Improperly Billed MAP for Special Access.
39. According to MAP, the Midwest ILECs have violated section 201(b) of
the Act by "impos[ing] charges for special access" that "MAP has never
requested nor authorized." The Midwest ILECs deny that they billed MAP
for special access on the account in question. They maintain that the
outstanding balance in dispute is for services to "rearrange certain
of the trunks" MAP had previously ordered. As discussed below, we deny
MAP's claim because MAP has failed to offer sufficient evidence to
meet its burden of proof.
40. The record supports the Midwest ILECs' contention that they never
billed MAP for special access on the account at issue. The Midwest
ILECs produced copies of MAP's Access Service Requests ("ASRs"), which
demonstrate that the underlying services were for rearrangement of
certain circuits ordered by a MAP employee via his direct input into
the Midwest ILECs' electronic ordering systems. MAP has not offered
any specific evidence to refute that its employee ordered such
services. Rather, it relies upon a single email message from a Midwest
ILEC employee that was sent over one year after the services were
invoiced, which generally describes the disputed charges as "special
access service usage BAN." We find that this single email message is
insufficient to overcome the considerable contrary evidence provided
by the Midwest ILECs. Consequently, MAP has not met its burden of
demonstrating that the Midwest ILECs billed it for special access
services that it had not ordered. We therefore deny Count XIII of
MAP's Complaint.
A. SWBT's and Midwest ILECs' Invoices Are Not Unclear or Ambiguous.
41. MAP alleges that SWBT and the Midwest ILECs have violated section
201(b) of the Act and section 64.2401(b) of the Commission's rules by
issuing confusing and ambiguous invoices to MAP "consist[ing] of codes
which do not clearly describe the services" for which MAP has been
charged. In support of its claim, MAP identifies one string of codes
each from one set of SWBT's and the Midwest ILEC's invoices as
examples of the allegedly unclear codes. Although MAP is correct that
a violation of section 64.2401(b) of the Commission's rules
constitutes an unjust and unreasonable practice under section 201(b),
we deny this claim for the reasons below, because MAP fails to present
evidence sufficient to sustain its burden of proof.
42. SWBT and the Midwest ILECs have offered proof that the invoices they
issued to MAP comply with industry billing standards and practices,
and contain all of the information necessary to determine the services
being billed, the billing period, the specific locations, and the
applicable price, including the usage rate where applicable.
Specifically, they presented evidence that the invoices were issued
via their Carrier Access Billing Systems ("CABS"), and that the format
of their CABS invoices, and the codes used on the invoices, conform
to industry standards published by the Ordering and Billing Forum of
the Alliance for Telecommunications Industry Solutions ("ATIS") and
Telcordia. SWBT and the Midwest ILECs specifically demonstrated that
the information in the invoices identified by MAP consists of various
"Field Identifiers" and "Universal Service Ordering Codes" used
throughout the industry. They also provided evidence that the codes
contained in the invoices, as well as other pertinent information, are
identified and discussed in detail in various documents that they
provide online to MAP and all of their access services customers.
These documents include, inter alia, SWBT's and the Midwest ILECs'
Carrier Coding Guides, which provide the method by which a customer
who orders services from their access tariffs will technically convey
the customer's requirements to SWBT and the Midwest ILECs. SWBT and
the Midwest ILECs also presented evidence that they billed for the
tariffed services as ordered by MAP, and that the charges specified on
their invoices correspond to the charges specified in the relevant
tariff provisions from which MAP ordered the facilities and services.
43. MAP has not refuted any of the foregoing evidence. Rather, MAP
apparently contends that the SWBT and the Midwest ILEC invoices
violate section 64.2401(b) of the Commission's rules solely because
the codes used in the invoices, standing alone, do not provide a
sufficient description of the services for which MAP was charged.
44. We find this argument unpersuasive in view of MAP's status as a
sophisticated carrier with knowledge of industry standards and
practices. For example, the record shows that MAP's employees were
familiar with SWBT's and the Midwest ILECs' tariffs and their online
ordering systems. In addition, MAP's employees placed orders for
various tariffed services and facilities via SWBT's and the Midwest
ILECs' online systems, which appear to utilize many of the codes shown
on the disputed invoices. SWBT and the Midwest ILECs demonstrated that
the codes in question identify the specific facilities or services
ordered by MAP, their location(s), the billing period, and their
rates, all of which correspond to the online orders placed by MAP. All
of this information appears necessary to establish an audit trail by
which MAP can verify that the services it placed online with SWBT and
the Midwest ILECs were billed in accordance with the rates specified
in the tariffs from which MAP placed its orders.
45. Moreover, although the record indicates that MAP disputed certain
charges at various times over the course of the parties' approximately
nine-year relationship, it contains no evidence that MAP ever told
SWBT or the Midwest ILECs during this time that it found the codes on
the bills to be confusing or ambiguous. In fact, the record concerning
MAP's continuing efforts to address and resolve its
interconnection-related billing disputes with SWBT and the Midwest
ILECs suggests that MAP understood the codes on the invoices which
enabled it to identify specific charges it was disputing.
46. Based on this record, we find that MAP has failed to meet its burden
of proving that SWBT's and the Midwest ILECs' invoices were unclear,
confusing, or ambiguous in violation of section 201(b) of the Act or
section 64.2401(b) of the Commission's rules. Accordingly, we deny
Counts XVII, XVIII, XIX, and XX of the Complaint.
A. MAP Does Not Have A Cause of Action Under Section 415 of the Act.
47. MAP alleges that Defendants violated section 415(a) of the Act by
invoicing MAP for services provided more than two years prior to the
filing of MAP's Complaint. We reject MAP's contention. As SWBT and the
Midwest ILECs point out, section 415(a) is a defense to claims
asserted against a party; it does not provide the basis for an
affirmative claim for relief. Section 415 serves as a procedural and
substantive bar to the consideration of complaints against common
carriers, thereby "protect[ing] a potential defendant against stale
and vexatious claims." Section 415(a) establishes a time limit within
which a carrier may initiate legal action to recover charges owed; it
"does not address what is an acceptable amount of time between a
carrier's provision of service and the rendering of its bill." MAP's
section 415 claims are thus not supported by either the statutory
language or the purpose of the statutory provision. We therefore deny
Counts XXII and XXIII of MAP's Complaint.
IV. ordering clauses
48. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), and 208
of the Communications Act of 1934, as amended, 47 U.S.C. S:S: 154(i),
154(j), and 208, and sections 1.720-1.736 of the Commission's rules,
47 C.F.R. S:S: 1.720-1.736, and the authority delegated in sections
0.111 and 0.311 of the Commission's rules, 47 C.F.R. S:S: 0.111 and
0.311, that SBC Communications, Inc., Ameritech Corporation, Pacific
Bell Communications, and Southwestern Bell Telephone Co. are hereby
DISMISSED as parties, without prejudice.
49. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and 208 of the
Communications Act of 1934, as amended, 47 U.S.C. S:S: 154(i), 154(j),
and 208, and sections 1.720-1.736 of the Commission's rules, 47 C.F.R.
S:S: 1.720-1.736, and the authority delegated in sections 0.111 and
0.311 of the Commission's rules, 47 C.F.R. S:S: 0.111 and 0.311, that
Illinois Bell Telephone Company, Indiana Bell Telephone Company,
Incorporated, Michigan Bell Telephone Company, The Ohio Bell Telephone
Company, Wisconsin Bell, Inc., Pacific Bell Telephone Company, and
Southwestern Bell Telephone, L.P. are hereby added as parties in this
proceeding.
50. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), 201, 208, 251,
252, and 332 of the Communications Act of 1934, as amended, 47 U.S.C.
S:S: 154(i), 154(j), 201, 208, 251, 252, and 332, and sections
1.720-1.736 of the Commission's rules, 47 C.F.R. S:S: 1.720-1.736, and
the authority delegated in sections 0.111 and 0.311 of the
Commission's rules, 47 C.F.R. S:S: 0.111 and 0.311, that Defendants'
Motion to Dismiss is GRANTED IN PART AND DENIED IN PART to the extent
set forth herein, and those portions of the Complaint asserting claims
against Pacific Bell Telephone Company, including specifically Counts
X, XI, XII, and XXIV, are DISMISSED without prejudice.
51. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), 201, 208, 251,
252, and 332 of the Communications Act of 1934, as amended, 47 U.S.C.
S:S: 154(i), 154(j), 201, 208, 251, 252, and 332, and sections
1.720-1.736 of the Commission's rules, 47 C.F.R. S:S: 1.720-1.736, and
the authority delegated in sections 0.111 and 0.311 of the
Commission's rules, 47 C.F.R. S:S: 0.111 and 0.311, that Counts I, II,
III, V, VIII, XIV, XVIII (S: 64.2401(d)) and XXI of the Complaint
alleged by MAP Mobile Communications, Inc. against Illinois Bell
Telephone Company, Indiana Bell Telephone Company, Incorporated,
Michigan Bell Telephone Company, The Ohio Bell Telephone Company,
Wisconsin Bell, Inc., Pacific Bell Telephone Company, and Southwestern
Bell Telephone, L.P. are DISMISSED without prejudice.
52. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), 201, 208, 251,
252, and 332, of the Communications Act of 1934, as amended, 47 U.S.C.
S:S: 154(i), 154(j), 201, 208, 251, 252, and 332, and sections
1.720-1.736, 20.11, 51.703(b), and 64.2401 of the Commission's rules,
47 C.F.R. S:S: 1.720-1.736, 20.11, 51.703 and 64.2401, and the
authority delegated in sections 0.111 and 0.311 of the Commission's
rules, 47 C.F.R. S:S: 0.111 and 0.311, that Counts IV, VI, VII, and IX
of the Complaint alleged by MAP Mobile Communications, Inc. against
Illinois Bell Telephone Company, Indiana Bell Telephone Company,
Incorporated, Michigan Bell Telephone Company, The Ohio Bell Telephone
Company, Wisconsin Bell, Inc., and Southwestern Bell Telephone, L.P.
are GRANTED IN PART AND DENIED IN PART, to the extent indicated
herein.
53. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), 201, 208, 251,
252, and 332, of the Communications Act of 1934, as amended, 47 U.S.C.
S:S: 154(i), 154(j), 201, 208, 251, 252, and 332, and sections
1.720-1.736, 20.11, 51.703(b), and 64.2401 of the Commission's rules,
47 C.F.R. S:S: 1.720-1.736, 20.11, 51.703 and 64.2401, and the
authority delegated in sections 0.111 and 0.311 of the Commission's
rules, 47 C.F.R. S:S: 0.111 and 0.311, that Counts XIII, XV, XVI,
XVII, XVIII (S: 64.2401(b)), XIX, XX, XXII, and XXIII of the Complaint
alleged by MAP Mobile Communications, Inc. against Illinois Bell
Telephone Company, Indiana Bell Telephone Company, Incorporated,
Michigan Bell Telephone Company, The Ohio Bell Telephone Company,
Wisconsin Bell, Inc., and Southwestern Bell Telephone, L.P. are
DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Complaint, File No. EB-05-MD-013 (filed July 12, 2005) ("Complaint").
47 U.S.C. S: 208. MAP initially named SBC Communications, Inc. ("SBC"),
Ameritech Corporation ("Ameritech"), and Pacific Bell Communications as
defendants. Complaint at 1. In their Answer, Defendants argued that MAP
incorrectly identified those entities as defendants. Defendants' Answer,
File No. EB-05-MD-013 (filed Aug. 11, 2005) ("Answer") at 3, P: 2. The
parties subsequently stipulated that the real parties in interest are the
Midwest ILECs, PacBell, and SWBT. Supplemental Joint Statement of
Complainant and Defendants, File No. EB-05-MD-013 (filed Nov. 2, 2005)
("Supplemental Joint Statement") at 10, P: 28. We have modified the
caption in this case accordingly, and hereby dismiss SBC, Ameritech, and
Pacific Bell Communications as parties, without prejudice.
47 U.S.C. S:S: 201(b), 251(b)(5), and 415.
47 C.F.R. S:S: 20.11, 51.703, and 64.2401.
See, e.g., Complaint at 8-21, P:P: 15, 16, 19-32, 36-44; 24-26, P:P: 51,
54, 56, 57; 28-31, P:P: 61-66, 69-71. MAP listed two counts in its
Complaint as Count XVIII alleging separate violations of sections
64.2401(b) and 64.2401(d) of the Commission's rules. The parties have
stipulated to the dismissal of Counts I, II, III, XIV, XVIII (S:
64.2401(d)) and XXI of the Complaint. See Second Supplemental Joint Status
Report of Complainant and Defendants, File No. EB-05-MD-013 (filed Jan.
23, 2006) ("Second Supplemental Joint Status Report") at 2-3, P: 2; 5, P:
9. See also Supplemental Joint Statement at 8, P: 25. Thus, we hereby
dismiss those counts without prejudice.
See 47 C.F.R. S: 1.722(d). MAP erroneously cited to rule 1.722(h) in its
Complaint. Complaint at 7-8, P: 14.
See 47 C.F.R. S: 1.722(e).
See, e.g., Complaint at 1-2, P: 1; Joint Statement of Complainant and
Defendants, File No. EB-05-MD-013 (filed Sept. 16, 2005) ("Joint
Statement") at 4, P: 12; MAP Mobile Communications, Inc. Responsive Brief
on Selected Issues, File No. EB-05-MD-013 (filed Mar. 8, 2006) ("MAP Reply
Brief") at 21, P: 54, n.80 ("MAP quit providing paging services
approximately a month after [August 21, 2004]").
47 U.S.C. S: 251(h). See, e.g., Complaint at 2, P: 2; Answer at 3, P: 2.
See, e.g., Complaint at 2, P: 2, MAP Mobile Communications, Inc. Proposed
Findings of Fact and Conclusions of Law and Legal Analysis, File No.
EB-05-MD-013 (filed July 12, 2005) at 2, P: 2.
47 U.S.C. S: 252(i). See, e.g., Joint Statement at 4, P: 14; Complaint at
15-16, P: 28; Answer at 15, P: 28; Complaint Exhibit 22, Conformed Paging
Interconnection Agreement between Pacific Bell and MAP Mobile
Communications, Inc. ("Complaint Exhibit 22, Interconnection Agreement" or
"Interconnection Agreement").
See, e.g., Complaint at 15-16, P: 28; Joint Statement at 5, P: 18.
See, e.g., Answer at 12, P: 20; 13, P: 22; 14, P: 25; Answer, Exhibit 3,
Defendants' Proposed Findings of Facts, Conclusions of Law and Legal
Analysis ("Defendants' Legal Analysis") at 17-18; Defendants' Initial
Brief, File No. EB-05-MD-013 (filed Feb. 22, 2006) ("AT&T Initial Brief")
at 24; AT&T's Reply Brief, File No. EB-05-MD-013 (filed Mar. 8, 2006)
("AT&T Reply Brief") at 33. Although MAP never specifically alleges that
it ordered its interconnection facilities and services from SWBT's and the
Midwest ILECs' tariffs, it generally acknowledges that these services were
provided pursuant to SWBT's and the Midwest ILECs' tariffs. See, e.g.,
Reply at 23, P: 49 (referencing SWBT's and the Midwest ILECs' tariffs);
MAP Mobile Communications, Inc. Initial Brief on Selected Issues, File No.
EB-05-MD-013 (filed Feb. 22, 2006) ("MAP Initial Brief") at 18-19, P:P:
50-53 (arguing that SWBT's and the Midwest ILECs' tariffs do not contain
certain rates); MAP Reply Brief at 17-18, P: 46 (referencing SWBT's and
the Midwest ILECs' tariffs).
See Complaint Exhibit 22, Interconnection Agreement at 28, S: 28.
Defendants' Motion to Dismiss, File No. EB-05-MD-013 (filed Aug. 11, 2005)
("Defendants' Motion to Dismiss") at 2-9.
See MAP Mobile Communications, Inc. Opposition to Defendants' Motion to
Dismiss, File No. EB-05-MD-013 (filed Sept. 1, 2005) ("MAP Opposition to
Motion to Dismiss) at 2-10, P:P: 1-20.
See, e.g., Joint Statement at 4, P: 14.
Complaint Exhibit 22, Interconnection Agreement at 21, S: 14.1 (emphasis
added).
Complaint Exhibit 22, Interconnection Agreement at 21, S: 14.1.
Complaint Exhibit 23, Letter dated August 27, 1999 from David Adams,
Southwestern Bell Area Manager, Wireless Negotiations, to Gary Morrison,
President, MAP Mobile Communications, Inc. ("August 27, 1999 Letter" or
"Letter") (emphasis added).
See Complaint at 15-16, P: 28; Defendants' Motion to Dismiss at 3; Joint
Statement at 5, P: 16.
Complaint at 15-16, P: 28; MAP Initial Brief at 2, P:P: 2-3; MAP
Opposition to Motion to Dismiss at 4, P: 6.
See, e.g., MAP Initial Brief at 2-3, P:P: 2-4; MAP Opposition to Motion to
Dismiss at 4, P: 6.
Defendants' Motion to Dismiss at 3.
MAP Opposition to Motion to Dismiss at 3-4, P: 6.
Complaint Exhibit 22, Interconnection Agreement at 21, S: 14.1 (emphasis
added).
Complaint Exhibit 23, August 27, 1999 Letter.
Id.
See, e.g., MAP Initial Brief at 2-4, P:P: 4-7; MAP Opposition to Motion to
Dismiss at 5, P: 7.
Complaint Exhibit 22, Interconnection Agreement at 21, S: 14.1.
MAP Opposition to Motion to Dismiss at 4, P: 6.
Complaint Exhibit 22, Interconnection Agreement at 21, S: 14.1.
Defendants' Supplemental Response, File No. EB-05-MD-013 (filed Aug. 25,
2005) ("Defendants' Supplemental Response") at Exhibit G. Exhibit G
contains invoices issued as late as October 2004. The invoices' reference
to "Interconnection Agreement dated April 16, 1999" apparently relates to
the date on which MAP signed the Interconnection Agreement. See Complaint
Exhibit 22, Interconnection Agreement at 30.
AT&T Initial Brief at 11 (citing April 20, 2001 Letter from David V.
Sherwood, Chief Financial Officer, MAP to Willena Slocum, Director of
Negotiation Support, SBC, included as Exhibit B to Attachment 2 of Letter
from Anisa A. Latiff, Associate Director, Federal Regulatory, AT&T, to
Marlene H. Dortch, Secretary, FCC, File No. EB-05-MD-013 (filed Jan. 25,
2006)).
See, e.g., Julius Goldman's Egg City v. U.S., 697 F.2d 1051, 1058 (Fed.
Cir. 1983) (stating that the "contract must be interpreted in accordance
with the parties' understanding as shown by their conduct before the
controversy"), cert. denied 464 U.S. 814 (1983); Cedars-Sinai Medical
Center v. Shewry, 137 Cal.App.4th 964, 983, 41 Cal.Rptr.3d 48, 62 (2006)
("A party's conduct subsequent to the formation of a contract may be
looked upon to determine the meaning of disputed contractual terms");
Oceanside 84, Ltd. v. Fidelity Federal Bank, 56 Cal.App.4th 1441, 1449, 66
Cal.Rptr.2d 487 (1997) (stating that "[t]he conduct of the parties after
the execution of the contract, and before any controversy arose, may be
considered in order to attempt to ascertain the parties' intention").
According to the Complaint, PacBell's unlawful charges to MAP began in
1998 - before the October 26, 1999 date when MAP contends the
Interconnection Agreement terminated. Complaint at 7-8, P: 14. Thus, even
if the Interconnection Agreement, which the parties entered in 1998, later
terminated in October 1999, we would still find that, under the
Agreement's forum selection clause, MAP's claims against PacBell should be
resolved before the California PUC, to the extent they arose before
October 1999. See infra at Section III A (2)-(3).
Defendants' Motion to Dismiss at 2-9.
Interconnection Agreement at 28, S: 28 (emphasis added), referring to
Competition for Local Exchange Service, Decision 95-12-056, 63 CPUC 2d
700, 1995 WL 767891 (1995). The referenced California PUC decision
establishes an escalating process of negotiation, mediation, decision by
an Administrative Law Judge, and ultimately a complaint before the PUC, if
necessary.
Complaint Exhibit 22, Interconnection Agreement at 28, P: 28.
MAP Initial Brief at 10-11, P:P: 28-31; MAP Reply Brief at 9-11, P:P:
23-27.
MAP Initial Brief at 10-11, P:P: 28-31; MAP Reply Brief at 9-11, P:P:
23-27.
See Cal. Pub. Util. Code S: 1756 (providing that an aggrieved party may
petition for court review of any commission order or decision).
MAP Reply Brief at 10, P: 26 (citing Northern California District Counsel
of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1037 (9th
Cir. 1995)).
Northern California District Counsel, 69 F.3d at 1036-37.
Complaint Exhibit 22, Interconnection Agreement at 28, P: 28 (emphasis
added).
See generally Maggio v. Windward Capital Management Co., 96 Cal. Rptr2d
168 (Cal. App. 2000) (finding that agreement to follow American
Arbitration Association ("AAA") procedures required the parties to proceed
before the AAA).
MAP Opposition to Motion to Dismiss at 7-10, P:P: 12-20.
Broadview Networks, Inc. v. Verizon Tel. Cos, Memorandum Opinion and
Order, 19 FCC Rcd 22216 (Enf. Bur. 2004).
Id. at 22222-23, P: 18.
Id.
Id. at 22223-26, P:P: 19-26.
MAP does not argue that the third Broadview criterion applies here.
Broadview Networks v. Verizon, 19 FCC Rcd at 22222-24, P:P: 18-20.
MAP Opposition to Motion to Dismiss at 8, P: 15.
See, e.g., 47 U.S.C. S: 252.
Id.
Broadview Networks v. Verizon, 19 FCC Rcd at 22222, 22224, P:P: 18, 21.
Id. at 22222, 22225, P:P: 18, 23.
MAP Opposition to Motion to Dismiss at 10, P: 19.
Pacific Bell Telephone Company v. MAP Mobile Communications, Inc., Case
05-11-016, Decision Granting Motion to Dismiss, 2006 WL 1059026, (Cal.
P.U.C. April 13, 2006).
Id.
Id. In addition, as previously explained, any overlap of issues in this
case and in the California PUC proceeding may be more apparent than real,
because only the California PUC proceeding involves interpretation of the
Interconnection Agreement.
See Complaint at 20-21, P:P: 42-44; 31, P: 71. MAP argues that we should
dismiss the Defendants' Motion to Dismiss because the Motion does not
comply with certain procedural rules. MAP Opposition to Motion to Dismiss
at 2, P:P: 1-2. Specifically, MAP asserts that the Motion fails to include
proposed findings of fact and conclusions of law, as required by 47 C.F.R.
S: 1.727(b), and to include a table of contents and summary, as required
by 47 C.F.R. S: 1.49. As to the latter, we decline to dismiss the Motion
at this stage of the proceeding for such minor noncompliance with the
rules. As to the former, we note that Defendants did provide, in
compliance with 47 C.F.R. S: 1.727(c), a proposed order that incorporates
its proposed findings of fact and conclusions of law. We decline to
dismiss the Motion simply because these proposed findings of fact and
conclusions of law were not also included in a separate document.
MAP does not clearly identify the exact period of time when it received
bills for the allegedly unlawful charges.
47 U.S.C. S: 201(b) (requiring common carrier "charges, practices,
classifications, and regulations" for and in connection with their
communication service to be just and reasonable); 47 U.S.C. S: 251(b)(5)
(requiring all local exchange carriers "to establish reciprocal
compensation arrangements for the transport and termination of
telecommunications").
47 C.F.R. S: 51.703(b) (providing that a "LEC may not assess charges on
any other telecommunications carrier for telecommunications traffic that
originates on the LEC's network").
TSR Wireless v. US West Communications, Inc., 15 FCC Rcd 11166, 11184 at
P: 31 (2000), petition for review denied sub nom., Qwest Corp. v. FCC, 252
F.3d 462 (D.C. Cir. 2001).
See, e.g., Complaint at 8, P: 15; 11, P: 21; 18-20, P:P: 36-41; 21-24,
P:P: 45-50 (Counts IV - IX); MAP Mobile Communications, Inc. Reply to
Answer, File No. EB-05-MD-013 (filed Sept. 1, 2005) ("MAP Reply") at 20,
P: 42; MAP Initial Brief at 44, P: 44; MAP Reply Brief at 17, P: 45.
"IntraMTA" traffic is traffic that originates and terminates within the
same "Major Trading Area," as defined in 47 C.F.R. S: 24.202(a). See 47
C.F.R. S: 51.701(b)(2).
See, e.g., Answer at 22-24, P:P: 46-47; Defendants' Legal Analysis at 8;
AT&T Initial Brief at 29-32.
Answer at 24 P: 47 (emphasis in original) (quoting TSR Wireless v. US
West, 11 FCC Rcd at 11176, P: 18); see also AT&T Initial Brief at 28-29.
AT&T Initial Brief at 29 (quoting TSR Wireless v. US West, 11 FCC Rcd at
n. 70).
AT&T Initial Brief at 32 (emphasis in original); see also Defendants'
Legal Analysis at 10-19; AT&T Reply Brief at 25.
See AT&T Brief at 29-30; AT&T Reply Brief at 31-32; 47 U.S.C. S:
251(c)(2).
AT&T Brief at 30-31; AT&T Reply Brief at 31.
MAP's POIs were located at its paging terminal. MAP Reply Brief at 16, P:
42.
Defendants' Legal Analysis at 11; AT&T Initial Brief at 24, 30-31; AT&T
Reply Brief at 23, 31. See Review of the Section 251 Unbundling
Obligations of Incumbent Local Exchange Carriers, Report and Order and
Order on Remand and Further Notice of Proposed Rulemaking, 18 FCC Rcd
16978, 17202-06 at P:P: 365-67 (2003) ("Triennial Review Order")
(subsequent history omitted).
Defendants' Legal Analysis at 12-14; AT&T Initial Brief at 29-32; AT&T
Reply Brief at 31-32.
Defendants' Legal Analysis at 15; AT&T Initial Brief at 29-32; AT&T Reply
Brief at 31-32.
See, e.g., Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, First Report and Order, 11 FCC Rcd 15499,
16016 at P: 1042 (1996) ("Local Competition Order") (subsequent history
omitted) (stating that "[a]s of the effective date of [the Local
Competition Order], a LEC must cease charging a CMRS provider or other
carrier for terminating LEC-originated traffic and must provide that
traffic to the CMRS provider or other carrier without charge"); 47 C.F.R.
S: 51.703(b) ("A LEC may not assess charges on any other
telecommunications carrier for telecommunications traffic that originates
on the LEC's network.").
47 U.S.C. S: 332.
TSR Wireless v. US West, 15 FCC Rcd at 11189, P:P: 8, 40. See id. at
11184, P: 31. See also Metrocall, Inc. v. Concord Telephone Co.,
Memorandum Opinion and Order, 17 FCC Rcd 2252, 2257 (2002) ("The
Commission's rules state that a CMRS provider is not required to pay an
interconnecting LEC for traffic that terminates on the CMRS provider's
network, if the traffic originated on the LEC's network."); Texcom, Inc.
d/b/a Answer Indiana v. Bell Atlantic Corp., Memorandum Opinion and Order,
16 FCC Rcd 21493, 21496 at P: 8 (2001) (stating that "a LEC may not impose
on a paging carrier any costs the LEC incurs to deliver LEC-originated,
intraMTA traffic").
Mountain Communications, Inc. v. Qwest Communications International, Inc.,
Memorandum Opinion and Order on Remand, 21 FCC Rcd 11577 (2006).
Mountain Communications, Inc. v. Qwest, 21 FCC Rcd at 11580-89, P:P: 1, 9.
See, e.g.,P:P: 25-26 and n.69, supra.
47 C.F.R. S: 51.709(b).
TSR Wireless v. US West, 15 FCC Rcd at 11181-82, P: 26.
Defendants' Legal Analysis at 11-16; AT&T Initial Brief at 30-32; AT&T
Reply Brief at 22-25.
Triennial Review Order, 18 FCC Rcd at 17203-04, P: 366.
See United States Telecom Association v. Federal Communications
Commission, 359 F.3d 554, 586 (D.C. Cir. 2004) (remanding Commission's
ruling that excluded entrance facilities from the definition of dedicated
transport after finding that the ruling was at odds with the definition of
"network element" found in section 153(29) of the Act). See also In the
Matter of Unbundled Access to Network Elements, Order on Remand, 20 FCC
Rcd 2533, 2612 (2005) (on remand, including entrance facilities in the
definition of dedicated transport).
More specifically, the cited portion of the Triennial Review Order dealt
with defining an incumbent LEC's unbundling requirements for individual
network elements under section 251(c)(3) -which entails the negotiation of
an agreement pursuant to section 252 of the Act. MAP does not allege,
however, that it interconnected with SWBT or the Midwest ILECs pursuant to
section 251(c)(3), or ever negotiated an agreement with those Defendants
pursuant to section 252 of the Act. See P: 4, supra, and n.97, infra.
See Defendants' Legal Analysis at 11-16; MAP Reply at 20-22, P:P: 42-47;
AT&T Initial Brief at 29-32; MAP Initial Brief at 14-17, P:P: 40, 45-49;
AT&T Reply Brief at 31-32; MAP Reply Brief at 15-17, P:P: 40-42.
See, e.g., TSR Wireless v. US West, 15 FCC Rcd at 11177, n.70.
Complaint at 8-9, P:P: 15-18; 11-12, P:P: 21-22; 18-20, P:P: 36, 38, 39,
41; 21-24, P:P: 45-50 (Counts IV, VI, VII, and IX). A violation of
Commission rule 51.703 constitutes a violation of section 201(b) of the
Act. See Qwest Corporation v. Federal Communications Commission, 252 F.3d
462 (D.C. Cir. 2001); Metrocall v. Concord, 17 FCC Rcd at 2256-57, P:P: 8,
10; Texcom v. Bell Atlantic, 16 FCC Rcd at 21496, P: 8; TSR Wireless v. US
West, 15 FCC Rcd at 11176, P: 18; 11184, P: 40.
MAP Reply at 23, P: 49; MAP Reply Brief at 17-18, P: 46. By "transiting
factor," we and the parties mean a fixed estimate of the percentage of the
local facilities used to deliver transiting traffic to MAP. MAP Reply
Brief at 17-18, P: 46; AT&T Initial Brief at 33; AT&T Reply Brief at 33.
TSR Wireless v. US West, 15 FCC Rcd at 11176-77, P: 19, n.70 (stating that
"Complainants [paging carriers] are required to pay for `transiting
traffic,' that is, traffic that originates from a carrier other than the
interconnecting LEC"). See, e.g., Mountain Communications, Inc. v. Qwest
Communications International, Inc., Memorandum Opinion and Order, 17 FCC
Rcd 2091, 2095 at P: 10 (2002) (stating that "we conclude that Qwest does
not violate sections 51.703(b) and 51.709(b) of the Commission's rules by
assessing Mountain charges associated with transiting traffic"), vacated
in part and remanded on other grounds, Mountain Communications, Inc. v.
FCC, 355 F.3d 644 (D.C. Cir. 2004); Metrocall, Inc. v. Southwestern Bell
Telephone Company, Memorandum Opinion and Order on Supplemental Complaint
for Damages, 16 FCC Rcd 18123, 18126 at P:P: 8-9 (2001) (stating that "we
unambiguously permitted LECs to charge paging carriers for transiting
traffic"); Texcom, Inc. v. Bell Atlantic Corp., 16 FCC Rcd at 21495, P: 5
(stating that "a LEC may charge a paging carrier for traffic that transits
the LEC's network and terminates on the paging carrier's network as long
as the traffic does not originate on the LEC's network").
See Metrocall, Inc. v. Southwestern Bell Telephone, 16 FCC Rcd at 18126,
P: 9 (stating that "[s]ome percentage of the interconnection-related
charges imposed by the [defendants] constitutes [transiting] traffic, and
they are entitled to charge for it"); id. at 18127, P: 14 (applying
average transiting factors to calculate damages where the incumbent LECs'
tariffs did not designate a transiting factor or percentage for transiting
traffic).
MAP apparently declined to negotiate such an interconnection arrangement
with SWBT and the Midwest ILECs. See Defendants' Legal Analysis at 17;
Answer Exhibit 5, Declaration of Jack Firth at 2, P: 3; 4-5, P:P: 10-11.
MAP does not deny that it declined to negotiate an interconnection
arrangement with SWBT and the Midwest ILECs.
AT&T Initial Brief at 34; AT&T Reply Brief at 25. According to SWBT and
the Midwest ILECs, a transiting factor usually is agreed to by the parties
or established by state commission in an interconnection agreement, a
process MAP declined here. Defendants' Legal Analysis at 16-17; AT&T
Initial Brief at 34-35.
See Complaint at 8, P: 15; 11, P: 21; 18-20, P:P: 36-41; 21-24, P:P: 45-50
(Counts IV - IX). Consequently, to the extent that MAP demonstrates in a
supplemental damages proceeding that it actually paid the charges for
which SWBT and the Midwest ILECs billed MAP, its recovery of damages must
be reduced by an appropriate transiting factor. See Metrocall, Inc. v.
Southwestern Bell, 16 FCC Rcd at 18126, P:P: 8-9. We reject MAP's
suggestion that, because SWBT and the Midwest ILECs did not specifically
identify transiting charges in their bills to MAP, taking account of such
charges in a supplemental damages proceeding would amount to an
endorsement of unlawful "backbilling." MAP Reply at 23, P: 50. The record
demonstrates that SWBT and the Midwest ILECs issued timely bills to MAP
for the interconnection facilities and services ordered by MAP in
accordance with their published tariffs. AT&T Initial Brief at 34; AT&T
Reply Brief at 25. Consequently, requiring that any damages recovery be
reduced to reflect transiting traffic would involve no delay in the
issuance of bills containing the transiting charges at issue, and thus no
"backbilling."
47 C.F.R. S: 20.11(b) (stating that "[l]ocal exchange carriers and
commercial mobile radio service providers shall comply with principles of
mutual compensation"). The rule further requires that LECs and CMRS
carriers pay reasonable compensation to each other for the termination of
traffic that originates on their networks. 47 C.F.R. S:S: 20.11(b)(1) and
(2).
Complaint at 8, P: 15; 12-13, P: 23; 26-27, P:P: 56-60 (Counts XV and
XVI). For purposes of this Order only, we assume, without deciding, that a
violation of rule 20.11 would constitute a violation of the Act cognizable
under section 208 of the Act. See North County Communications Corp. v.
MetroPCS California, LLC, Memorandum Opinion and Order, DA 09-719, 2009 WL
818927 (Enf. Bur. rel. Mar. 30, 2009) at P: 8, n.30. See generally Global
Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc.,
127 S.Ct. 1513 (2007); Alexander v. Sandoval, 532 U.S. 275, 284 (2001).
Answer at 11, P: 15; 13, P: 23; Defendants' Legal Analysis at 21, 27-28;
AT&T Initial Brief at 37, 45-47; AT&T Reply Brief at 35-36. SWBT and the
Midwest ILECs also argue that we should deny MAP's claims under section
20.11 of the Commission's rules because (i) MAP failed to negotiate an
agreement with them regarding the payment of reasonable compensation, see
Defendants' Legal Analysis at 21-27; AT&T Initial Brief at 36-41;
Defendants' Reply Brief at 35; and (ii) under the "collection action"
doctrine, MAP's allegations fail to state a claim under section 208 of the
Act. See AT&T Initial Brief at 47-50; AT&T Reply Brief at 34-35. Because
we rule in Defendants' favor on other grounds, we need not address these
two arguments.
Answer at 30, P: 60; Defendants' Legal Analysis at 27-28. See MAP Reply at
7, P: 16.
MAP Reply at 7-8, P: 16; MAP Mobile Communications, Inc.'s Objections and
Answers to Defendants' Interrogatories, File No. EB-05-MD-013 (filed Sept.
1, 2005) at 3; MAP Initial Brief at 21, P: 62; MAP Reply Brief at 19-20,
P:P: 50-52. We decline to address in this complaint proceeding whether MAP
could, in the future, issue bills to SWBT and the Midwest ILECs for the
compensation at issue in this case without being subject to a defense that
it was unlawfully "backbilling" SWBT and the Midwest ILECs. See MAP Reply
Brief at 21, P: 54, n.81. See generally American Network, Inc., Petition
for Declaratory Ruling Concerning Backbilling of Access Charges,
Memorandum Opinion and Order, 4 FCC Rcd 550, 552 at P: 19 (Com. Carr. Bur.
1989), petition for recon. denied, 4 FCC Rcd 8797 (1989) (stating that
"[a] delay of much less than 24 months between the rendering of service
and the receipt of an initial bill for such service may be an unjust and
unreasonable practice for purposes of Section 201(b) of the Act");
People's Network Incorporated v. American Telephone and Telegraph Company,
Memorandum Opinion and Order, 12 FCC Rcd 21081, 21088 at P: 15 (Com. Carr.
Bur. 1997) (stating that "[w]e have little difficulty in determining that,
under the facts of this case, billing delays of 15 or 20 months qualify as
an unreasonable practice within the meaning of Section 201(b)").
MAP Reply at 6-7, P:P: 13-15 (citing Airtouch Cellular v. Pacific Bell,
Memorandum Opinion and Order, 16 FCC Rcd 13502 (2001)).
Airtouch Cellular v. Pacific Bell, 16 FCC Rcd at 13508, P: 16.
See id. Cf. 47 C.F.R. S: 51.717(b) (providing that a CMRS provider seeking
to renegotiate a non-reciprocal compensation arrangement with an incumbent
LEC established prior to August 8, 1996 "shall be entitled to assess upon
the incumbent LEC the same rates for the transport and termination of
telecommunications traffic that the incumbent LEC assesses upon the CMRS
provider pursuant to the pre-existing arrangement" until a new reciprocal
compensation agreement is established).
See MAP Reply at 6-7, P:P: 13-15; MAP Initial Brief at 20-21, P: 59; MAP
Reply Brief at 19-20, P: 50 (citing In the Matter of Developing a Unified
Intercarrier Compensation Regime, T-Mobile Petition for Declaratory Ruling
Regarding Incumbent LEC Wireless Termination Tariffs, Declaratory Ruling
and Report and Order, 20 FCC Rcd 4855, 4857 at P: 4 (2005) ("T-Mobile
Declaratory Ruling")).
T-Mobile Declaratory Ruling, 20 FCC Rcd at 4855, P: 1. The T-Mobile
Declaratory Ruling amended section 20.11 of the Commission's rules
prospectively to make clear the Commission's preference for contractual
arrangements for non-access CMRS traffic by permitting incumbent LECs to
request interconnection from a CMRS provider and invoke the negotiation
and arbitration procedures set forth in section 252 of the Act. Pursuant
to the T-Mobile Declaratory Ruling, an interim compensation rate takes
effect upon receipt of a request for interconnection pursuant to section
252. T-Mobile Declaratory Ruling, 20 FCC Rcd at 4863, P: 5; 4864, P:P:
15-16.
Complaint at 12, P: 23; 24-25, P:P: 51-53 (Count XIII); MAP Reply at
24-26, P:P: 53-58.
Answer at 13, P: 23; 25-26, P:P: 51-53; Answer Exhibit 8, Declaration of
Michelle L. Johnson ("Johnson Declaration") at 2, P: 5; Defendants' Legal
Analysis at 19-20.
Answer at 13, P: 23; 26, P: 53; Answer Exhibit 8, Johnson Declaration at
2-3, P:P: 6-7; Defendants' Legal Analysis at 19.
See, e.g., High-Tech Furnace Systems, Inc. v. FCC, 224 F.3d 781, 787 (D.C.
Cir. 2000) (stating that "[w]ell established FCC precedent imposes the
burden of proof on the complainant in section 208 proceedings"); American
Message Centers v FCC, 50 F.3d 35, 41 (D.C. Cir. 1995) (stating that in a
section 208 proceeding "[t]he rules place the burden of pleading and
documenting a violation of the Act on [the complainant]. They do not
require [the carrier] to prove that it has not violated the Act.").
See, e.g., Answer at 13, P: 23; 25-26, P:P: 51-53; Defendants' Legal
Analysis at 19-20.
An ASR is a document generated by MAP's direct input into the Midwest
ILECs' electronic ordering systems. Defendants' Objections and Responses
to MAP's Interrogatories, File No. EB-05-MD-013 (filed Sept. 9, 2005) at 3
("Defendants' Discovery Responses").
Specifically, the Midwest ILECs produced ASRs demonstrating that there
were four separate service requests placed by MAP employee Matthew
Bocialetti to move circuits in Detroit. See Answer, Exhibit 8, Declaration
of Michelle L. Johnson at 2-3, P:P: 5-9; Defendants' Discovery Responses
at 2-3 and n.3; Defendants' Discovery Responses, Exhibits 1 and 2.
Although MAP's Reply includes a declaration by one of its officers who
generally attests that "MAP did not request nor authorize such
rearrangement," (MAP Reply, Exhibit 3, Declaration of Grant Sibley), we
find that this general, unsubstantiated statement from someone other than
Matthew Bocialetti, the MAP employee who ordered the services, does not
outweigh the specific documentation produced by the Midwest ILECs that
demonstrates otherwise.
Complaint at 24, P: 51; Complaint Exhibit 15. MAP did not produce a copy
of the actual invoice containing the disputed charges.
Complaint at 10-11, P: 20; 13-14, P: 25; and 28-29, P:P: 61-67 (Counts
XVII, XVIII, XIX and XX); MAP Reply at 11-12, P:P: 23-24. Section
64.2401(b) of the Commission's rules states that the description of
charges on telephone bills "must be sufficiently clear in presentation and
specific enough in content so that customers can accurately assess that
the services for which they are billed correspond to those that they have
requested and received, and that the costs assessed for those services
conform to their understanding of the price charged." 47 C.F.R. S:
64.2401(b).
Complaint at 10-11, P: 20; 13-14, P: 25; Complaint, Exhibits 6, 14. MAP
does not specify the time period during which it received the invoices
with the allegedly confusing codes, and it appears from other exhibits
attached to its Complaint that the format of the invoices changed during
the parties' relationship to include additional descriptive information.
Compare Complaint Exhibits 6 and 14 with Complaint Exhibits 18 & 19.
The Commission previously found that a carrier's billing and collection is
an integral part of a carrier's provision of communications services
subject to the Commission's jurisdiction under Title II of the
Communications Act. See Local Exchange Carrier Validation and Billing
Information for Joint Use Calling Cards, Report and Order and Request for
Supplemental Comments, 7 FCC Rcd 3528, 3530-3533 (1992), clarified on
reconsideration, 12 FCC Rcd 1632, 1643-1645 (1997); Public Service
Commission of Maryland, Memorandum Opinion and Order, 4 FCC Rcd 4000,
4004-4006 (1989), aff'd, Public Service Commission of Maryland v F.C.C.,
909 F.2d 1510 (D.C. Cir. 1990); Detariffing of Billing and Collection
Services, Report and Order, 102 F.C.C. 2nd 1150, 1169-71(1986).
Specifically, a carrier's practices regarding "the manner in which charges
and providers are identified on the telephone bill [are] essential to
consumers' understanding of the services that have been rendered, the
charges imposed for those services, and the entities that have provided
such services." In the Matter of Truth-in-Billing and Billing Format,
First Report and Order and Further Notice of Proposed Rulemaking, 14 FCC
Rcd 7492, 7503 at P: 20 (1999). Consequently, "[a] carrier's provision of
misleading or deceptive billing information is an unjust and unreasonable
practice in violation of section 201(b) of the Act." Id. at 7506, P: 24.
Indeed, the Commission's truth-in-billing requirements for common
carriers, including section 64.2401 of the Commission's rules, were
established "to define more specifically what would constitute a violation
of section 201 with respect to billing practices." Id. at 7506-07, P:P:
24-25.
See n.113, supra.
Defendants' Legal Analysis at 29; Answer, Exhibit 6, Declaration of Mark
Goodwin ("Answer, Goodwin Declaration") at 1-3, P:P: 3, 4, 6; Defendants'
Supplemental Response at 3-5.
The Carrier Access Billing System allows carriers in a competitive
environment to bill each other for traffic passed between them. See
Newton's Telecom Dictionary, 22nd Edition (2006) at 189. See also In the
Matter of Joint Application of SBC Communications Inc., Illinois Bell
Telephone Company, Indiana Bell Telephone Company Incorporated, The Ohio
Bell Telephone Company, Wisconsin Bell, Inc., and Southwestern Bell
Telephone Communications Services, Inc. for Authorization to Provide
In-Region InterLATA Services in Illinois, Indiana, Ohio, and Wisconsin,
Memorandum Opinion and Order, 18 FCC Rcd 21543, 21614 at P: 117 (2003)
(stating that CABS "generates bills for competitive LECs that purchase UNE
and interconnection products"); In the Matter of Application of Verizon
Virginia Inc., Verizon Long Distance Virginia Inc., Verizon Enterprise
Solutions Virginia Inc., Verizon Global Networks Inc. and Verizon Select
Services of Virginia Inc., for Authorization to Provide In-Region
InterLATA Services in Virginia, Memorandum Opinion and Order, 17 FCC Rcd
21880, 21900 at P: 39 (2002) (stating that "Verizon uses CABS to provide
billing for interoffice transport facilities, collocation, access
services, carrier settlement, and other UNE products"); In the Matter of
Joint Application of BellSouth Corporation, BellSouth Telecommunications,
Inc., and BellSouth Long Distance, Inc. for Provision of In-Region,
InterLATA Services in Alabama, Kentucky, Mississippi, North Carolina, and
South Carolina, Memorandum Opinion and Order, 17 FCC Rcd 17595, 17691 at
n.653 (2002) (stating that "CABS is used by BellSouth to bill for most UNE
and interconnection services").
Answer, Goodwin Declaration at 2, P: 4; Defendants' Supplemental Response
at 3-5. ATIS develops and promotes technical and operational standards for
communications and related information technologies. See, e.g., In the
Matter of Rules and Regulations Implementing Minimum Customer Account
Record Exchange Obligations on All Local and Interexchange Carriers,
Report and Order and Further Notice of Proposed Rulemaking, 20 FCC Rcd
4560, 4463 at P: 5 (2005). Telcordia, formerly BellCore, is a provider of
telecommunications network software and services for Internet protocol,
wireline, wireless, and cable. See, e.g., In the Matter of Implementation
of Section 273 of the Communications Act of 1934, as Amended by the
Telecommunications Act of 1996, Memorandum Opinion and Order, 18 FCC Rcd
18896, 18897-98 at P: 4 and n.13 (2003). According to SWBT and the Midwest
ILECs, these standards and guidelines have been used for a number of years
without any serious complaints by carrier customers. Answer, Goodwin
Declaration at 2-3, P: 6.
Defendant Supplemental Response, File No. EB-05-MD-013 (filed Aug. 25,
2005) at 3-5. Defendants also provided a detailed explanation of the codes
on one of the invoices that MAP identified, specifying the trunks,
locations, type, circuit starting and end points, customer location, and
directionality of the circuits. Id.
SWBT and the Midwest ILECs provided the links to these websites in their
submissions. Defendants' Supplemental Response at 3.
Defendant Supplemental Response, File No. EB-05-MD-013 (filed Aug. 25,
2005) at 3. SWBT and the Midwest ILECs provided evidence that the codes
identified in Defendants' Carrier Coding Guidelines are generally based on
Telcordia Common Language(R) codes, which are available online from
Telcordia's website.
Answer at 31, P: 62; Answer, Goodwin Declaration at 1-3, P:P: 3, 5, 6.
SWBT and the Midwest ILECs also moved to dismiss MAP's ambiguous billing
claims because MAP's Complaint failed to allege any injury with respect to
these claims. Defendants' Motion to Dismiss at 13-14. Although MAP
bifurcated its liability and damages claims pursuant to section 1.722(d)
of the Commission's rules, 47 C.F.R. S: 1.722(d), we agree with SWBT and
the Midwest ILECs that MAP failed to allege any injury or ask for any
relief in its Complaint with respect to its ambiguous billing claims. See
Complaint at 33-34. In any event, because we deny MAP's ambiguous billing
claims on other grounds, SWBT's and the Midwest ILECs' Motion to Dismiss
these claims is denied as moot. See generally Amendment of Rules Governing
Procedures to be Followed When Formal Complaints are Filed Against Common
Carriers, Order on Reconsideration, 16 FCC Rcd 5681, 5696 at P: 34 (2001)
(finding the practice of filing motions to dismiss as separate pleadings
is usually unnecessary).
MAP also argues that SWBT and the Midwest ILECs have not identified the
specific ATIS and Telcordia standards and practices they followed when
issuing their invoices. MAP Reply at 10, P: 21. However, contrary to MAP's
contention, SWBT and the Midwest ILECs have identified the standards as
those published by the Ordering and Billing Forum of ATIS and Telcordia.
Defendants' Supplemental Response at 3.
The record reflects that, since at least February 1997, MAP has provided
service in the PacBell, Ameritech, and SWBT service territories, including
operations in California, Illinois, Maryland, Massachusetts, Michigan, New
Jersey, New York, Ohio, Pennsylvania, and Texas. See, e.g., Complaint at
8, P: 15; 11, P: 21; Complaint Exhibit 12 at 1; Complaint, Exhibit 20. The
record further reflects that MAP's personnel had access to and were
knowledgeable about industry-wide resources, such as online electronic
carrier ordering systems and Defendants' tariffs. See Defendants'
Discovery Responses at 3.
See Defendants' Discovery Responses at 3 and Exhibits 1 and 2.
Id.
Indeed, MAP's invoices to Defendants include codes similar in format to
the codes found on Defendants' invoices to MAP. See, e.g., Defendants'
Supplemental Response, Exhibit G.
See, e.g., Complaint Exhibit 13, Letter dated February 13, 1998 from David
V. Sherwood, MAP Chief Financial Officer, to John Earle, Ameritech,
requesting credit for charges associated with certain interconnection
facilities ("Complaint Exhibit 13, MAP Mobile February 13, 1998 Letter").
In addition, MAP's responses to Defendants' discovery on this very claim
did not provide any specific supporting information. See MAP Mobile
Communications, Inc.'s Response to Defendants' Interrogatories, File No.
EB-05-MD-013 at 3 (filed Oct. 19, 2005).
See, e.g., Complaint at 8-9, P:P: 15-18 and 11-12, P:P: 21-22; Complaint
Exhibit 13, MAP Mobile February 13, 1998 Letter.
See Complaint at 28-29, P:P: 61-65 (Counts XVII, XVIII, XIX, and XX).
Section 415(a) states that "[a]ll actions at law by carriers for the
recovery of their lawful charges ... shall be begun within two years from
the time the cause of action accrues, and not after." 47 U.S.C. S: 415(a).
Complaint at 30-32, P:P: 69-70, 72 (Counts XXII and XXIII); 10, P: 19; 13,
P: 24; 16, P: 29.
Answer at 33-35, P:P: 69-72; Defendants' Legal Analysis at 30-31.
See, e.g., MCI Telecommunications Corp. v. Pacific Bell Telephone Co.,
Memorandum Opinion and Order, 12 FCC Rcd 13243, 13252 at P: 15 (Com. Carr.
Bur. 1997).
Bunker Ramo Corp. v. The Western Union Telegraph Co., New York, N.T.,
Memorandum Opinion and Order, 31 FCC 2d 449, 453-54 (Rev. Bd. 1971). See,
e.g., Business Choice Network v AT&T, Memorandum Opinion and Order, 7 FCC
Rcd 7702, 7703 at n.7 (Com. Carr. Bur. 1992) ("That section limits the
time when carriers may begin "actions at law," i.e., sue in an appropriate
court, to recover their lawful charges.").
American Network, Inc., Petition for Declaratory Ruling Concerning
Backbilling of Access Charges, Order on Reconsideration, 4 FCC Rcd 8797,
8798 at P: 10 (1989).
See Complaint at 30-32, P:P: 69-72 (Counts XXII and XXIII).
(Continued from previous page)
(continued ...)
Federal Communications Commission DA 09-1065
20
Federal Communications Commission DA 09-1065