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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
AT&T Corp.,
)
Complainant,
)
v. File No. EB-10-MD-005
)
YMax Communications Corp.,
)
Defendant.
)
)
)
MEMORANDUM OPINION AND ORDER
Adopted: April 8, 2011 Released: April 8, 2011
By the Commission:
I. Introduction
1. This Memorandum Opinion and Order ("Order") grants in part and
otherwise dismisses without prejudice the claims alleged in the formal
complaint that AT&T Corp. ("AT&T") filed against YMax Communications
Corp. ("YMax") under section 208 of the Communications Act of 1934, as
amended ("Act"). AT&T alleges, inter alia, that YMax has violated
sections 203(c) and 201(b) of the Act by assessing AT&T interstate
switched access charges that are not authorized by YMax's federal
tariff. For the reasons discussed below, we find that AT&T's
allegation has merit. Based on this finding, we grant Counts III and
IV of the Complaint. Because our grant of these Counts will afford
AT&T all the relief to which it is entitled, we find it unnecessary to
address the remaining unsevered Counts in the Complaint and dismiss
them without prejudice.
II. background
2. For purposes relevant to this proceeding, AT&T is a nationwide
provider of interexchange (i.e., long distance) services, also called
an interexchange carrier ("IXC"). YMax is certificated as a
competitive local exchange carrier ("CLEC") throughout the United
States.
3. Although YMax is widely certificated as a CLEC, it lacks many typical
local exchange carrier ("LEC") characteristics. YMax does not provide
any physical transmission facilities connecting YMax to the premises
of any non-carrier/non-ISP persons or entities. YMax has no customers
who purchase local exchange service from YMax's state tariffs.
[Redacted confidential information regarding YMax's business
operations and network configuration.] YMax does not assess or collect
fees or charges associated with the Universal Service Fund ("USF").
YMax does not assess or collect any End User Common Line ("EUCL")
charges. YMax does not have any present capability to effectuate the
selection of a preferred interexchange carrier ("PIC") and thus does
not assess or collect any PIC charges.
4. YMax is able to participate in the transmission of the telephone calls
at issue here only through its working relationship with its close
affiliate, MagicJack, L.P. MagicJack, L.P. markets and sells for
$39.95 a device called the magicJack(R), which provides the ability to
use the Internet to make and receive calls throughout most of North
America. The magicJack device itself consists of a USB "dongle" on one
end that plugs into a computer's USB port, and an RJ-11 telephone jack
on the other end into which an ordinary landline telephone can be
plugged. MagicJack, L.P. relies on YMax to obtain telephone numbers
and interconnection to the public switched telephone network ("PSTN")
for magicJack purchasers. The record indicates that virtually all of
the calls at issue involved the use of a magicJack device.
5. Before using the magicJack device, purchasers must register it online
by clicking on a box indicating their agreement with a terms of
service agreement ("TOS Agreement") that appears on the MagicJack,
L.P. website. Among other things, the TOS Agreement requires that
magicJack purchasers separately procure high speed Internet access
service from a third-party ISP in order to use the magicJack device to
place or receive calls. The TOS Agreement further states that it
constitutes "the entire agreement between you and magicJack and YMAX
... and governs your use of the magicJack device ... and Software and
items and/or services which may be provided by YMAX, [and] it trumps
any prior agreements between you and magicJack ... and/or YMAX."
6. The parties' dispute centers on interstate switched access charges
that YMax billed AT&T for two types of calls: 1) calls from an AT&T
long-distance customer to a "Called Party" (i.e., "1+" calls); and 2)
calls from a "Calling Party" to an AT&T toll-free long-distance
service customer (i.e., "8YY" calls). As used in this Order, "Called
Party" means the person or entity that received an interexchange (1+)
call from an AT&T long-distance service customer for which YMax has
billed terminating switched access charges to AT&T; and "Calling
Party" means the person or entity that placed an interexchange call to
an AT&T toll-free (8YY) customer for which YMax has billed originating
switched access charges to AT&T.
7. The record reflects that 1+ calls from an AT&T long-distance customer
to a Called Party are routed as follows. First, the entity serving the
AT&T long-distance customer (typically a LEC) delivers the
long-distance call to AT&T's point of presence ("POP") in the local
access and transport area ("LATA") where the customer that initiated
the call is located. AT&T then transports the call and hands it off to
the access tandem provider (typically an incumbent local exchange
carrier ("ILEC")) that serves the specific NPA-NXX code of the Called
Party. The access tandem provider to which AT&T has terminated the
call then delivers it to one of YMax's 141 points of interconnection
("POIs"). As far as any physical presence of YMax is concerned, 110 of
YMax's 141 POIs exist only on paper (presumably for the purpose of
permitting YMax to obtain telephone numbers in those LATAs); that is,
YMax has no equipment of its own and leases no space at these
locations, [redacted confidential information regarding YMax's network
configuration]. As it turns out, all of "the equipment, facilities,
configurations and interconnections" in these 110 locations are
actually "provided exclusively [to YMax] by AT&T." Thus, a call sent
to any of these 110 POIs ("Empty POIs") is picked up by a private DS-1
line that AT&T provides to YMax and then is transported to [redacted
confidential information regarding YMax's network configuration] YMax
equipment collocated in an AT&T facility in Dallas, Texas. YMax's
equipment, which consists of an access gateway, servers, and a Cisco
router, converts the call from TDM to IP format and then, pursuant to
a managed Internet service contract with AT&T, sends the call back to
AT&T in the same Dallas facility over a single high-capacity line.
AT&T then sends the call over the Internet to one or more ISPs, the
last of which delivers it to the Called Party's magicJack.
8. For calls delivered by the access tandem provider to one of the other
31 YMax POIs, the routing is essentially the same. [Redacted
confidential information regarding YMax's network configuration].
9. The record is less clear about the routing of an 8YY call from a
Calling Party to an AT&T toll-free long-distance service customer.
[Redacted confidential information regarding YMax's network
configuration.] [Redacted confidential information regarding YMax's
network configuration.]
10. Purportedly pursuant to its Tariff, YMax billed AT&T terminating
switched access charges for calls to a Called Party and originating
switched access charges for calls from a Calling Party. AT&T disputed
these charges, to no avail. Hence, this formal complaint proceeding
commenced.
11. The non-severed Counts in AT&T's Complaint are Counts I through VI,
and Counts XI through XIII. Counts I and II allege that YMax does not
provide the "functional equivalent" of any competing ILEC's switched
access services, as set forth in the Commission's access charge rules
and orders, and, therefore, YMax has violated sections 201(b) and
203(c), respectively, by billing AT&T for switched access services
that YMax has not provided. Counts III and IV allege that YMax does
not provide switched access services as defined in its Tariff, and,
therefore, YMax has violated sections 203(c) and 201(b), respectively,
by billing for services that it did not provide pursuant to the terms
of its Tariff. Counts V and VI allege that YMax has violated sections
203(c) and 201(b), respectively, by billing for "information services"
that are not authorized by its Tariff and that Commission rules
prohibit to be tariffed. Counts XI and XII allege that YMax has
violated sections 201(b) and 203(c), respectively, by billing rates
that exceed the rates that the "competing ILEC" charges for
functionally equivalent service. Count XIII alleges that, if the
Commission construes the Tariff to permit billing switched access
charges for the services actually provided by YMax, then the Tariff is
unjust and unreasonable under section 201(b).
III. Discussion
A. YMax Has Violated Sections 203(c) and 201(b) Of The Act By
Assessing Switched Access Charges That Are Not Authorized By Its
Tariff.
12. YMax filed its Tariff with the Commission pursuant to section 203(a)
of the Act, which requires common carriers to submit schedules showing
"all charges" and "the classifications, practices, and regulations
affecting such charges." Section 203(c) of the Act bars a carrier from
"enforc[ing] any classifications, regulations, or practices affecting"
its tariffed charges, "except as specified" in the tariff. Consistent
with these statutory provisions, a carrier may lawfully assess
tariffed charges only for those services specifically described in its
applicable tariff.
13. AT&T alleges in Counts III and IV of the Complaint that YMax has
violated sections 203(c) and 201(b) of the Act by assessing AT&T
switched access charges for services that are not authorized by YMax's
Tariff. To support that allegation, AT&T argues that none of YMax's
services qualifies as "Switched Access Service" under the Tariff
because the Called/Calling Parties who placed and received the calls
at issue are not "End Users" within the meaning of the Tariff.
Further, AT&T asserts additional, independent grounds for arguing that
none of YMax's services qualifies as the "End Office Switching" and
the "Switched Transport" rate elements of YMax's switched access
charges. According to AT&T, YMax does not provide End Office Switching
within the meaning of its Tariff because, inter alia, YMax does not
have an "End Office Switch" as defined by the Tariff. Similarly, AT&T
contends that YMax does not provide certain Switched Transport
services because the Tariff describes such services as routing traffic
"to and from an End Office" "via the Access Tandem," and YMax does not
have any End Offices within the meaning of the Tariff.
14. As explained below, we find each of AT&T's arguments in Counts III and
IV to be meritorious. The fundamental problem appears to be that YMax
chose to model its Tariff on common language in LEC access tariffs,
even though the functions YMax performs are very different from the
access services typically provided by LECs. As a result, YMax's Tariff
fails to unambiguously describe the kinds of services and functions
that YMax performs with regard to the traffic at issue.
1. Because The Called/Calling Parties Are Not "End Users," YMax Has Not
Provided "Switched Access Services" Within The Meaning Of Its
Tariff.
15. As required by section 203(c) of the Act, we begin by examining the
relevant terms in YMax's Tariff. Section 3 of the Tariff describes
Switched Access Services. A review of section 3 reveals that, in
determining whether YMax properly billed AT&T for Switched Access
Services under its Tariff, a central issue is whether the
Called/Calling Parties are "End Users" within the meaning of the
Tariff. According to section 3, Switched Access Service "is available
to Customers [usually interexchange carriers] for their use in
furnishing their services to End Users;" and it provides a "a
two-point communications path between a Customer's Premises and an End
User's Premises" and thus "the ability to originate calls from an End
User's Premises to a Customer's Premises and to terminate calls from a
Customer's Premises to an End User's Premises ...." The Tariff defines
an "End User's Premises" as "[t]he premises specified by the Customer
or End User for termination of access services at the End User's
physical location." It further states that, when provisioning Switched
Access Service, "Originating traffic type represents access capacity
... for carrying traffic from the End User to the Customer; and
Terminating traffic type represents access capacity ... for carrying
traffic from the Customer to the End User."
16. Thus, the term, "End User" is integral to the meaning of "Switched
Access Service." YMax provides Switched Access Service under its
Tariff if - and only if - a call involves an "End User" as defined in
the Tariff.
17. The definition of "End User" in YMax's Tariff is similar to that
commonly found in many LEC tariffs. An "End User" is defined as a
person or entity "that uses the service of the Company [YMax] under
the terms and conditions of this Tariff." As explained below, we find
that the Called/Calling Parties do not qualify as End Users within the
meaning of the Tariff because they do not "use" any YMax service
"under the terms and conditions of [the] tariff." YMax therefore did
not provide tariffed Switched Access Service to AT&T and was not
authorized by the Tariff to assess Switched Access charges for any
traffic involving the Called/Calling Parties.
18. As with other LEC federal access tariffs, the only service that YMax's
Tariff offers for "use" by "End Users" is "End User Access" service.
This service, described in section 5 of the Tariff, provides End Users
with "the use of an End User Common Line (`local loop') to originate
or terminate interstate long distance calls." End Users must pay "[a]
monthly recurring charge" for this service, ranging from $6.50 to
$7.00 per line, and a Federal Universal Service Fee. Moreover, under
the Tariff, YMax must provide End Users with the ability to select or
"presubscribe" to the long distance carrier that will handle their
interstate calls. The Tariff specifies that End Users who fail to make
such a designation must "dial an access code (i.e., 101XXXX) for
interstate calls," and those who change an IXC designation must pay a
non-recurring charge.
19. YMax concedes that it has never provided End User Access service for
any End User's "use" within the meaning of section 5 of its Tariff.
YMax also admits that it provides no "local loops" or any other
facilities that physically connect to the premises of a Called/Calling
Party, and that it [Redacted confidential information regarding YMax's
network configuration]. Instead, the Called/Calling Parties must
separately obtain service and facilities from a third-party ISP in
order to place or receive calls. YMax acknowledges that it has "never
billed any Called/Calling Party the End User Common Line charge or
Federal Universal Service surcharge described in the Tariff, and that
no Called/Calling Party has ever paid YMax the tariffed charges
associated with the End User Common Line." Likewise, YMax admits that
it has not provided, and presently has no facilities to provide,
Called/Calling Parties the ability to presubscribe to an IXC, and does
not require End Users to dial a 101XXXX code to select an IXC for
individual long distance calls.
20. Thus, the undisputed record makes clear that no Called/Calling Party
has ever used YMax's End User Access service. This means that no
Called/Calling Party has ever been an "End User" as defined in YMax's
Tariff. Accordingly, YMax has never provided a key component of
Switched Access Service as defined in the Tariff - basically,
originating and terminating traffic from and to an "End User."
21. Buttressing this conclusion is the fact that Called/Calling Parties
establish a business relationship with YMax, not by ordering service
under "the terms and conditions of [YMax's] tariff," but instead by
agreeing to the separate online TOS Agreement. This agreement appears
on the magicJack website and, according to YMax, is accepted by "all
consumers or businesses who have subscribed to YMax's services."
22. The TOS Agreement purports to establish an agreement between the
Called/Calling Party and YMax and its affiliates, MagicJack, L.P. and
VocalTec Communications, LTD. ("VocalTec"), and states that it is the
"entire agreement between you [the Called/Calling Party] and magicJack
and YMax and VocalTec" and it "trumps any prior agreement." Unlike the
Tariff, the TOS Agreement does not require YMax to provide a common
line or "local loop" to any user. Instead, it states that the
Called/Calling Party must obtain local connections at their own cost
from a third-party. Rather than requiring payment of a monthly End
User Common Line Charge or Federal Universal Service surcharges, as
specified in the Tariff, the TOS Agreement promises users "free"
calling. Further, the TOS Agreement, unlike the Tariff, does not allow
users to pre-subscribe to an IXC or require them to pay a
non-recurring charge to change a presubscription.
23. These undisputed facts about the TOS Agreement further establish that
the Called/Calling Parties are not End Users under the Tariff: they do
not "use" any service "under the terms and conditions of this tariff,"
but rather use a completely different service under an entirely
separate TOS Agreement. Given that Switched Access Service, as
described in the Tariff, must involve traffic to and from End Users,
and YMax has no End Users as defined in the Tariff, YMax has not
provided AT&T with such Switched Access Services and cannot lawfully
bill AT&T for those services.
24. Additional support for this conclusion is found in Commission
precedent, including the recent Farmers decision, which construed
similar tariff language. In Farmers, the Commission barred a LEC from
assessing switched access charges for calls to conference calling
companies who were not "end users" under the LEC's tariff. The
Commission held that the conference calling companies did not qualify
as "end users" because they did not take service pursuant to the terms
and conditions of the tariff, but rather under separate agreements
with the LEC. Here, as in Farmers, the Called/Calling Parties take
service under a separate agreement - the TOS Agreement - and not
"under the terms and conditions of [the] tariff." Accordingly, YMax,
like the LEC in Farmers, may not assess Switched Access charges under
its Tariff for calls to or from Called/Calling Parties.
25. YMax makes two principal arguments, raised late in this proceeding, in
an attempt to show that it has End Users under the Tariff. For the
following reasons, both lack merit.
26. First, conceding that there are no persons or entities that use End
User Access services under section 5 of YMax's Tariff, YMax instead
focuses on the Switched Access Services provided in section 3. YMax
maintains that the Called/Calling Parties are all "End Users," because
they "use" Switched Access Service under section 3 of the Tariff
whenever AT&T also uses such Service to transmit a call to or from a
Called/Calling Party. The fact that only AT&T is responsible for
paying for the Switched Access Service under the Tariff, YMax urges,
has no bearing on whether the Called/Calling Parties (and AT&T
customers) "use" the Service.
27. The Tariff does not define "use." Consequently, we must construe the
term "use" in accordance with its common meaning in the industry.
Applying such a common meaning, we find that no person or entity other
than an IXC can "use" YMax's Switched Access Service, as described in
Tariff section 3. It is widely understood that switched access is a
wholesale service provided to IXCs, paid for by them, and used by them
as an input to the end-to-end long distance service they provide to
their 1+ and 8YY customers. Thus, only IXCs - not Called/Calling
Parties - "use" "Switched Access Service."
28. Several provisions of the Tariff confirm, and even compel, this
conclusion. The definition of "Switched Access Service" states that
the Service is "available to Customers [i.e., IXCs] for their use in
furnishing their services to End Users." This language establishes
that IXCs, not the Called/Calling Parties, are the "users" of Switched
Access Services under the Tariff. Moreover, the Tariff also states
that Switched Access "provides line-side or trunk-side access to End
Office switches for the Customer's [i.e., IXC's] use in originating
and terminating communications." Indeed, even the language of the End
User definition underscores that it is the "interexchange carrier who
... utilizes the ... Switched ... Access services described in this
tariff" - not the Called/Calling Parties. And even if Called/Calling
Parties could be said, in some generic sense, to "use" switched access
service when calls are placed by or to them, they do not do so under
the "terms and conditions of the tariff," because there are no tariff
provisions applicable to an End User's "use" of carrier access
services.
29. YMax's argument that the Called/Calling Parties "use" switched access
services under the terms and conditions of section 3 of the Tariff is
also contradicted by other statements YMax has made in the record.
YMax's expert, for example, testified that switched access is a
service that "allows IXCs to use YMax's common terminating, switching
and trunking facilities." Similarly, YMax has asserted that, when it
originates 8YY toll-free calling, "this is a service to interexchange
carriers, not as a service provided to its end users."
30. YMax's second belated argument fares no better. Relying on the second
sentence of the End User definition in the Tariff, YMax argues that,
in addition to the Called/Calling Parties, the term "End Users"
includes the AT&T long distance customers that make calls to Called
Parties, or receive 8YY calls from Calling Parties. This argument
fails for at least two reasons.
31. First, it is inconsistent with the Tariff language. The second
sentence of the End User definition states that "[i]n most contexts,
the End User is the customer of an interexchange carrier who in turn
utilizes [YMax's] Switched or Dedicated Access services described in
this tariff to provide the End User with access to the [IXC's]
communication and switching systems." This sentence describes the
typical situation where a LEC's local customer connects to an IXC's
network via presubscription, or by dialing an access code, and thereby
obtains the originating access necessary to make a long distance call.
AT&T's long distance customers do not satisfy the second sentence of
the End User definition because, although each is the "customer of an
interexchange carrier" - i.e., AT&T - AT&T does not "utilize" YMax's
access services to provide these customers with access to AT&T's
network. Instead, such access is provided by the AT&T customer's local
service provider, which, as discussed above, is never YMax.
32. Second, even if YMax could show that AT&T long distance customers
satisfy the second sentence of the End User definition, this would not
advance YMax's position because it cannot show that such AT&T
customers satisfy the first sentence of the End User definition. That
is, YMax cannot show that AT&T long distance customers "use" any YMax
service "under the terms and conditions" of the Tariff. As shown
above, they do not use End User Access services under section 5
because YMax provides these services to no one, and they do not use
the Switched Access Services under section 3 because these wholesale
services are used only by IXCs.
33. Finally, even if YMax's arguments regarding the construction of "End
User" in the Tariff were plausible - and they are not - YMax's
arguments would, at best, show only that the meaning of the term, "End
User" is ambiguous. It is well-established, however, that any
ambiguity in a tariff is construed against the party who filed the
tariff, in this case YMax.
34. To summarize, YMax may assess Switched Access Service charges on AT&T
pursuant to its Tariff only if YMax provided Switched Access Services
to AT&T as described in the Tariff. YMax's Tariff describes Switched
Access Service as a service involving originating and terminating
calls to an "End User." An "End User," in turn, is defined as a person
or entity who "uses" a YMax service "under the terms and conditions of
[its] tariff." No such End User exists here because: (i) no
Called/Calling Party uses YMax's End User Access service under section
5 of the Tariff; and (ii) no Called/Calling Party uses Switched Access
Service under section 3 of the Tariff, because under the terms of the
Tariff, Switched Access Service is available only to IXCs, not to any
Called/Calling Party. Thus, YMax did not provide Switched Access
Service to AT&T within the meaning of the Tariff because YMax did not
originate calls from, or terminate calls to, an End User. YMax's
charges to AT&T for such Service therefore violate sections 203(c) and
201(b) of the Act. Accordingly, we grant Counts III and IV of AT&T's
Complaint.
1. YMax Does Not Provide "End Office Switching" Or "Transport" Services
Within The Meaning Of Its Tariff.
35. AT&T raises additional, independent grounds for challenging YMax's
Switched Access charges, apart from the absence of "End Users" under
the Tariff. Specifically, AT&T argues that YMax's charges for the End
Office Switching rate element and certain Switched Transport rate
elements are not authorized by YMax's Tariff. We agree, for the
reasons set forth below.
a. End Office Switching
36. In determining whether YMax has lawfully billed AT&T for End Office
Switching under its Tariff, we begin, as before, with an examination
of the Tariff language. As discussed below, we find that YMax does not
provide End Office Switching under the Tariff because it does not
operate any "End Office Switches" where "station loops" that connect
to End User premises are "terminated."
37. The Tariff describes the "End Office Switching" rate category as
"establish[ing] the charges related to," among other things, "the
terminations in the end office of end user lines." The Tariff defines
an "End Office Switch" as a place "where Customer or End User station
loops are terminated for purposes of interconnection to other station
loops, trunks, or access facilities." An "End Office" is defined as
"[t]he Central Office from which the End User's Premises would
normally obtain local exchange service." A "Central Office," in turn,
is defined as a premises where "End User station loops are terminated
for purposes of interconnection to other station loops, trunks or
access facilities."
38. Under these Tariff provisions, construed together, a facility is not
an End Office Switch unless "End User station loops are terminated" at
that facility, and End Office Switching does not occur without
"terminations in the end office of end user lines." The Tariff does
not define "termination" of "station loops" and "end user lines,"
however. Thus, as previously stated, we must construe these terms
according to their common meaning in the industry.
39. The terms "termination" of "End User station loops" and "end user
lines" have well established meanings within the telecommunications
industry, in Commission orders, and in court decisions. The terms
generally refer to a physical transmission facility that provides a
point-to-point connection between an individual home or business and a
telephone company office. For example, in the 1996 Local Competition
Order, the Commission defined a local loop as "a transmission
facility between a distribution frame, or its equivalent, in an
incumbent LEC central office, and the network interface device at the
customer premises." Moreover, the Commission and others in the
industry commonly refer to loops as "last mile facilities."
40. The purpose and relative amount of end office switching charges
further confirm that "termination" of "End User station loops" and
"end user lines" refers to a physical transmission facility that
provides a point-to-point connection between a customer premises and a
telephone company office. End office switching charges were and are
authorized by law to allow local exchange carriers to recover the
substantial investment required to construct the tangible connections
between themselves and their customers throughout their service
territory. As a result, end office switching rates are among the
highest recurring intercarrier compensation charges. In fact, as is
typically true of LECs, YMax's own End Office Switching rates greatly
exceed all other recurring rates in its Tariff.
41. Applying those meanings here, the record plainly shows that YMax
provides no "termination" of "End User station loops" and "end user
lines" under its Tariff. In particular, as YMax acknowledges, YMax
does not provide any physical transmission facilities that establish
point-to-point connections between the premises of Called/Calling
Parties and YMax equipment. Instead, multiple parties other than YMax
- starting with the Called/Calling Parties' ISPs and ending with
[Redacted confidential information regarding YMax's network
configuration] or AT&T, with a number of unknown ISPs in between -
must provide physical transmission facilities to complete a link
between the premises of Called/Calling Parties and YMax. Consequently,
the Tariff does not authorize YMax to assess End Office Switching
charges on AT&T.
42. Recognizing that the terms of its Tariff, if construed according to
their standard meaning, would not authorize End Office Switching
charges, YMax urges us to apply novel definitions. YMax argues that
"virtual" facilities, as well as physical facilities, can qualify as
"terminations" of "End User station loops" and "end user lines" under
the Tariff. Specifically, YMax asserts that Called/Calling Parties
establish a "virtual connection" to the equipment that YMax has
collocated at AT&T and [Redacted confidential information regarding
YMax's network configuration] offices through the "virtual channel"
that is created "by the exchange of streams of IP packets transmitted
over the Internet." According to YMax, this "virtual channel" or
"virtual loop" serves the same function as a legacy fixed loop, in
that it provides a direct connection between a Called/Calling Party's
premises and the Public Switched Telephone Network ("PSTN").
43. We reject YMax's argument that its purported "virtual channels"
qualify as "terminations" of "station loops" and "end user lines"
under the Tariff. First, nothing in the language of the Tariff
authorizes charges for "virtual" services or facilities. The commonly
understood meanings of the terms "termination," "station loop" and
"end user line" do not include the type of non-physical, "virtual
connection" described by YMax. Indeed, YMax's own CEO testified that
he did not know what a "virtual connection" is, even though YMax's
expert used that term in describing YMax's relationship with Calling
Parties.
44. In essence, YMax contends that the entire worldwide Internet - from a
Called/Calling Party's premises through the network of the
Called/Calling Party's ISP, through the networks of other ISPs, up to
and including the connection YMax purchases from its own ISPs (i.e.,
AT&T or [Redacted confidential information regarding YMax's network
configuration]), comprises a "virtual" loop that terminates at the
equipment it collocates at AT&T or [Redacted confidential information
regarding YMax's network configuration] offices. Under this
interpretation, the "virtual loops" YMax claims to provide would be of
indeterminate length and configuration. They could extend thousands of
miles via numerous intermediaries throughout the country (or even the
world), or only a few miles via a couple of intermediaries in
contiguous states. This cannot be what the Tariff means by
"termination" of "End User station loops" and "end user lines." If
this exchange of packets over the Internet is a "virtual loop," then
so too is the entire public switched telephone network - and the term
"loop" has lost all meaning.
45. For all of these reasons, we find that YMax's construction of the
terms "termination" of "station loops" and "end user lines" is
contrary to the common meaning of these terms in the
telecommunications industry. Further, even if YMax's construction of
these terms were plausible - and it is not - it would, at best, merely
show that their meaning is ambiguous and, as noted above, we would be
bound to resolve the ambiguities against YMax, the drafter.
Accordingly, we conclude that the Tariff does not authorize YMax to
assess End Office Switching charges for the calls at issue.
a. Switched Transport
46. For similar reasons, we find that YMax's Switched Transport charges to
AT&T also violate the Tariff. The Tariff provides that these charges
apply when an IXC's traffic "to and from an End Office" is routed "via
an Access Tandem." Thus, YMax does not provide Switched Transport
unless it operates an End Office.
47. As described above, the Tariff defines an "End Office" as the "Central
Office from which the End User's Premises would normally obtain local
exchange service," and a "Central Office" as the premises of a local
exchange carrier "where Customer or End User station loops are
terminated." As shown above, YMax does not operate any End Offices
under the Tariff because YMax operates no premises where "End User
station loops" are terminated. YMax's Switched Transport charges
therefore are not authorized by the Tariff.
A. YMax's Affirmative Defenses Lack Merit
48. YMax asserts that we should dismiss the Complaint without prejudice to
sanction AT&T for allegedly violating section 207 of the Act. In
YMax's view, AT&T violated section 207 by first filing its claims here
and then later filing substantially similar counterclaims in federal
court in response to YMax's action to collect unpaid charges. YMax
argues that, although the claims were filed here first and thus are
properly within our jurisdiction, we should nevertheless bar AT&T from
proceeding here until AT&T withdraws its counterclaims in federal
court. We disagree with YMax. First, from the start, AT&T openly
characterized the filing of its court counterclaims as a cautious,
defensive measure designed simply to protect itself in the event that
its Complaint here did not proceed, and it asserted that the
Commission was the proper forum in which to resolve the issues raised
in the counterclaims. Moreover, at AT&T's request, the federal court
stayed AT&T's counterclaims pending the resolution of AT&T's Complaint
here. As a result, even assuming, arguendo, that AT&T's filing of
court counterclaims violated section 207 (about which we express no
view), AT&T's filing provides no equitable basis for dismissal of the
Complaint, over which YMax concedes we have jurisdiction.
49. YMax also argues that we should dismiss the Complaint because it
violates section 1.721(a)(5) of the Commission's rules, by allegedly
"fail[ing] to state, separately and plainly, the material facts that
AT&T alleges constitute violations of the Communications Act." We
disagree. We found the Complaint's factual allegations to be quite
clear, and the vigor and comprehensiveness of YMax's Answer show that
YMax was able to fully identify and comprehend them.
50. YMax further asserts that we should dismiss the Complaint, because
AT&T waived its right to dispute YMax's allegedly tariffed charges by
purportedly failing "to submit all documentation reasonably requested
by YMax to document its claims and disputes under the Tariff." YMax
bears the burden of proof regarding its affirmative defenses. YMax's
evidence is scant and cursory, and is outweighed by AT&T's evidence
that AT&T did adequately dispute the charges at issue. Moreover, as
AT&T argues, most of any relevant information that AT&T did not
provide (such as YMax's network configurations) was within the sole
possession of YMax. Thus, we find that YMax has failed to satisfy its
burden of demonstrating that AT&T waived its right to dispute the
charges assessed by YMax.
51. With regard to YMax's remaining affirmative defenses, they relate
either to severed counts or to damages. Thus, we need not, and do not,
address them in this Order.
IV. Conclusion
52. For the reasons described above, we hold that YMax has violated
sections 203(c) and 201(b) regarding all of the switched access
charges in dispute. In particular, YMax's Tariff does not authorize
any of the switched access charges in dispute, because the
Called/Calling Parties are not "End Users" as defined by the Tariff.
In addition, the Tariff does not authorize either of the two
categories of switched access charges in dispute - End Office
Switching and Switched Transport - because YMax provides no
"termination" of "End User station loops" and "end user lines," as its
Tariff requires. Accordingly, we grant Counts III and IV of AT&T's
Complaint.
53. Finally, our finding that YMax's charges to AT&T are unlawful under
sections 203 and 201(b) of the Act will afford AT&T all the relief to
which it is entitled. We therefore need not, and do not, reach the
claims stated in the remaining counts of the Complaint. Accordingly,
we dismiss these counts without prejudice.
V. ordering clauses
54. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), 201, 203,
and 208 of the Communications Act of 1934, as amended, 47 U.S.C. S:S:
154(i), 154(j), 201, 203, and 208, and sections 1.720-1.736 of the
Commission's rules, 47 C.F.R. S:S: 1.720-1.736, that Counts III and IV
of the Complaint are hereby GRANTED as to liability; and
55. 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, that Counts I, II, V, VI, XI, XII, and XIII of the
Complaint are hereby DISMISSED, without prejudice.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Formal Complaint of AT&T Corp., File No. EB-10-MD-005 (filed Nov. 9, 2010)
("Complaint").
47 U.S.C. S: 208.
47 U.S.C. S:S: 203(c), 201(b).
YMAX FCC Tariff, YMax Communications Corp., FCC Tariff No. 1 (filed Apr.
25, 2007, effective Apr. 26, 2007) ("Tariff"), attached as Ex. 1 to
Complaint. With YMax's consent, Commission staff granted AT&T's motion to
sever Counts VII, VIII, IX, X, and XIV from its Complaint, and to convert
the claims in those Counts back to an informal complaint against YMax. See
Letter from Alexander P. Starr, Chief, Market Disputes Resolution
Division, Enforcement Bureau, to David Lawson, counsel for AT&T, and
Russell M. Blau and Antoinette C. Bush, counsel for YMax, File No.
EB-10-MD-005 (rel. Dec. 22, 2010) ("Status Conference Order") at 2 (citing
Consent Motion to Sever Counts VII-X and XIV from AT&T Corp.'s Formal
Complaint, File No. EB-10-MD-005 (filed Dec. 20, 2010) ("Motion to
Sever")). With YMax's consent, Commission staff also granted AT&T's
request to sever, from Counts XI and XII respectively, the allegations
made in the Complaint at paragraphs 144 and 151. See Status Conference
Order at 2 (citing Joint Statement Pursuant to 47 C.F.R. S:
1.733(b)(1)(i)-(iv), File No. EB-10-MD-005 (filed Dec. 16, 2010) ("Joint
Statement on Discovery and Scheduling") at 2 n.1).
The record consists primarily of the pleadings and documents listed below,
all of which were filed in File No. EB-10-MD-005: Complaint; Legal
Analysis in Support of AT&T Corp.'s Formal Complaint ("Complaint Legal
Analysis"); Answer of YMax Communications Corp. (filed Nov. 29, 2010)
("Answer"); Legal Analysis in Opposition to Formal Complaint ("Answer
Legal Analysis"); Supplement to Answer of YMax Communications Corp. (filed
Dec. 2, 2010) ("Supp. Answer"); AT&T's Reply to Numbered Paragraphs in
YMax's Answer (Erratum) (original filed Dec. 6, 2010, correction filed
Dec. 22, 2010) ("Reply"); AT&T's Reply Legal Analysis in Support of its
Formal Complaint ("Reply Legal Analysis"); Joint Statement of Stipulated
Facts, Disputed Facts and Key Legal Issues (filed Dec. 16, 2010) ("Joint
Statement"); Erratum & Supplemental Answer to YMax Communications Corp.
Answers to Interrogatories (original filed Dec. 30, 2010, correction filed
Jan. 10, 2011) ("YMax Answers to Interrogatories"); AT&T's Initial Brief
in Support of its Formal Complaint (filed Jan. 20, 2011) ("AT&T Initial
Brief"); Initial Brief of YMax Communications Corp. (filed Jan. 20, 2011)
("YMax Initial Brief"); AT&T's Reply Brief in Support of its Formal
Complaint (filed Jan. 27, 2011) ("AT&T Reply Brief"); Reply Brief of YMax
Communications Corp. (filed Jan. 27, 2011) ("YMax Reply Brief"); Affidavit
of Jeffrey D. Owens, attached as Ex. A to Complaint ("Owens Aff."); Joint
Declaration of Ardell Burgess and Pam Britt, attached as Ex. C to
Complaint ("Burgess & Britt Decl."); Declaration of Mark Pavol, attached
as Ex. 1 to Answer ("Pavol Decl."); Declaration of Paul J. Calabro,
attached as Ex. 2 to Answer ("Calabro Decl."); Declaration of Jon Jones,
attached as Ex. 3 to Answer ("Jones Decl."); Declaration of Daniel
Borislow, attached to Supp. Answer ("Borislow Decl."); Reply Affidavit of
Jeffrey D. Owens, attached as Ex. D to Reply ("Owens Reply Aff."); Joint
Reply Declaration of Ardell Burgess and Pam Britt, attached as Ex. E to
Reply ("Burgess & Britt Reply Decl."); Deposition of Daniel Mark Borislow,
attached as Ex. 22 to AT&T Initial Brief ("Borislow Dep."); Deposition of
Mark Pavol, attached as Ex. 23 to AT&T Initial Brief ("Pavol Dep.");
Deposition of Paul Calabro, attached as Ex. 24 to AT&T Initial Brief
("Calabro Dep."); Deposition of Jeffrey D. Owens, attached as Ex. 25 to
AT&T Initial Brief ("Owens Dep."); Facts to Which YMax Refused to
Stipulate in the Joint Statement But Which Mr. Pavol Verified as True in
His Deposition, attached as Appendix B to AT&T Initial Brief ("Appendix
B").
AT&T elected to bifurcate its claims for damages pursuant to section
1.722(d) of the Commission's rules. 47 C.F.R. S: 1.722(d). Therefore, this
Order addresses AT&T's liability claims only. Complaint at 8, P: 13. At an
appropriate time, AT&T may file a supplemental complaint for damages. 47
C.F.R. S: 1.722(e).
See Reply Legal Analysis at 9; AT&T Initial Brief at 4-5 & App. A; AT&T
Reply Brief at 12. We therefore dismiss without prejudice Counts I, II, V,
VI, XI, XII, and XIII. We note that, in these Counts, AT&T raises credible
allegations that, inter alia, YMax's switched interstate access charges
violate the "functional equivalent" standard and the rate-mirroring
standard of section 61.26 of the Commission's rules. We also note that we
need not, and do not, address issues regarding the intercarrier
compensation obligations, if any, associated with Voice over Internet
Protocol ("VoIP") traffic in this Order. "The Commission has never
addressed whether interconnected VoIP is subject to intercarrier
compensation rules and, if so, the applicable rate for such traffic," and
is "seek[ing] comment on the appropriate intercarrier compensation
framework for [VoIP] traffic" in a pending proceeding. Connect America
Fund et al., WC Docket Nos. 10-90, 07-135, 05-337, 03-109, GN Docket No.
09-51, CC Docket Nos. 01-92, 96-45, Notice of Proposed Rulemaking and
Further Notice of Proposed Rulemaking, FCC 11-13, P: 608 (rel. Feb. 9,
2011). Moreover, we emphasize that this Order addresses only the
particular language in YMax's Tariff and the specific configuration of
YMax's network architecture, as described in the record.
See, e.g., Joint Statement at 2, P: 1.
See, e.g., Joint Statement at 2, P: 3.
See, e.g., Pavol Dep. at 113; YMax Initial Brief at 11-12; YMax Answers to
Interrogatories at 5 (Response to AT&T First Set of Interrogatories No.
1); YMax Answers to Interrogatories at 17 (Response to AT&T Second Set of
Interrogatories No. 3); Borislow Decl. at 4; Appendix B at 2. "ISP" means
Internet Service Provider.
See, e.g., Supp. Answer at 2; Joint Statement at 4, P: 24; Borislow Dep.
at 143-55; YMax Initial Brief at 8-9; YMax Answers to Interrogatories at
17 (Response to AT&T Second Set of Interrogatories No. 3); Pavol Dep. at
101.
See, e.g., YMax Answer to Interrogatories at 17 (Response to AT&T Second
Set of Interrogatories No. 3); Borislow Dep. at 153-55; Appendix B at 2.
See, e.g., YMax Answers to Interrogatories at 14 (Response to AT&T First
Set of Interrogatories No. 7); YMax Initial Brief at 8-9; Pavol Dep. at
118; Appendix B at 3.
See, e.g., Joint Statement at 5, P: 32, 6, P: 43; YMax Answers to
Interrogatories at 14 (Response to AT&T First Set of Interrogatories No.
7); YMax Initial Brief at 8-9; Pavol Dep. at 118, 127-30, 150; Appendix B
at 3.
See, e.g., YMax Answers to Interrogatories at 15 (Response to AT&T First
Set of Interrogatories No. 7); Pavol Dep. at 117; Borislow Dep. at 185-90;
YMax Initial Brief at 8-9.
See notes 17, 25 infra; Joint Statement at 3, P: 13. The sole member of
MagicJack, L.P. is YMax Corporation, which is the sole stockholder of YMax
Communications Corp., the defendant here. See Pavol Decl. at 8 n.2. The
same person serves as the chief executive officer ("CEO") of both
MagicJack, L.P. and YMax Communications Corp. See, e.g., Borislow Dep. at
7, 11.
Joint Statement at 3, P: 14, 4, P: 16. For purposes of this Order, we use
the terms "magicJack" or "magicJack device" to refer to the magicJack(R)
device, and we use the term "MagicJack, L.P." to refer to the entity that
markets and sells the magicJack device.
Joint Statement at 4, P: 16; MagicJack L.P. FAQs, attached as Ex. 15 to
Complaint ("MagicJack FAQs"). To continue using the magicJack device after
the first year of use, an annual renewal fee of $19.95 is required.
MagicJack FAQs. As previously noted, YMax assesses no tariffed fees or
charges on any magicJack purchaser for any of the calls enabled by the
magicJack device. Although the purchaser of a magicJack device has the
option to buy prepaid minutes for certain international outbound calling,
the magicJack purchaser is not required to do so, and no aspect of this
optional prepaid plan is at issue in this proceeding. See, e.g., Joint
Statement at 28, P: 50.
Joint Statement at 3, P: 15.
See, e.g., Joint Statement at 3, P: 10; Borislow Dep. at 77, 150, 177.
Although YMax declined to stipulate that virtually all of the calls at
issue involved the use of a magicJack device, YMax failed to heed Staff's
directive to "explain, in detail" the basis for declining to so stipulate.
See Letter from Alexander P. Starr, Chief, Market Disputes Resolution
Division, Enforcement Bureau, to David Lawson, counsel for AT&T, and
Russell M. Blau and Antoinette C. Bush, counsel for YMax, File No.
EB-10-MD-005 (rel. Jan. 24, 2011) at 4. [Redacted confidential information
regarding YMax's business operations]. YMax Reply Brief at 1 n.1. Given
the evidence supplied by AT&T, see, e.g., AT&T Initial Brief at 7 n.7
(citing Borislow Dep. at 182-83 (stating that 7 million magicJack devices
have been sold, versus "less than a couple thousand" people that use a
separate software product to make and receive calls)), YMax's own implicit
acknowledgement of the central role played by the magicJack device, see,
e.g., YMax Initial Brief at 1, 8 n.35, 22 n.104; YMax Reply Brief at 17;
Borislow Dep. at 181-83 (stating that "the great majority" of YMax's
customers use the magicJack device), and YMax's failure to comply with
Staff's order to provide a detailed explanation, we find ample support in
the record to conclude that virtually all of the calls at issue involved
the use of a magicJack device. In any event, neither party contends that,
for purposes of resolving this case, there is any material difference
between those MagicJack, L.P. customers who use a magicJack device and
those who use a separate software product to make and receive calls.
See, e.g., Terms of Service and Software License Agreement for magicJack,
L.P. and YMax Communications Corporation and VocalTec Communications
Corp., attached as Ex. A to the Borislow Decl. (attached to Supp. Answer);
Joint Statement at 4, P: 19. The current TOS Agreement is available at
http://www.magicjack.com/tos/. Joint Statement at 4, P: 17.
TOS Agreement at 2, S: 1; Joint Statement at 4-5, P: 25.
TOS Agreement at 11, P: 21.
Joint Statement at 2, 5, P: 34, 7, P: 47. For purposes of this Order, we
use the term "calls at issue" to refer to these two types of calls.
Joint Statement at 2.
Id. at 2. Accordingly, "Called/Calling Party" may refer to either of these
where the direction of the call is not relevant to the particular
statement. Id.
See, e.g., Calabro Decl. at 8-9, P: 18; Pavol Decl. at 5, 7; Borislow Dep.
at 62, 66-67.
See, e.g., Calabro Decl. at 8; P: 18; Pavol Decl. at 5-6, 7; Pavol Dep. at
102; Borislow Dep. at 59-67; Owens Aff. at 8; Appendix B at 1-2. "NPA-NXX"
refers to the first six digits of a ten-digit telephone number in the form
NPA-NXX-XXXX, where N represents any one of the numbers 2 through 9 and X
represents one of the numbers 0 through 9. See, e.g., Numbering Resource
Optimization, Fourth Report and Order, 18 FCC Rcd 12472, 12474, P: 5
(2003). An access tandem switch provides the connection between an end
office and an IXC's POP. See, e.g., Owens Aff. at 9; Complaint, Ex. JDO-4.
See, e.g., YMax Answers to Interrogatories at 2-3 (Response to AT&T First
Set of Interrogatories No. 1); YMax Answers to Interrogatories, Exs. 1-2,
1-3; Pavol Decl. at 6, 7; Borislow Dep. at 51-54.
See, e.g., YMax Answer to Interrogatories at 2-3 (Response to AT&T First
Set of Interrogatories No. 1); YMax Answers to Interrogatories at 9
(Response to AT&T First Set of Interrogatories No. 3); YMax Answers to
Interrogatories, Exs. 1-1, 1-2; Borislow Dep. at 56-57.
YMax Answers to Interrogatories at 9 (Response to AT&T First Set of
Interrogatories No. 3). See, e.g., YMax Answer to Interrogatories at 2-3
(Response to AT&T First Set of Interrogatories No. 1); YMax Answers to
Interrogatories at 12-13 (Response to AT&T First Set of Interrogatories
No. 6); YMax Answers to Interrogatories, Exs. 1-1, 1-2.
See, e.g., YMax Answers to Interrogatories at 2-3 (Response to AT&T First
Set of Interrogatories No. 1); YMax Answers to Interrogatories, Ex. 1-2;
Borislow Dep. at 54-57; Pavol Dep. at 72.
Joint Statement at 6, P: 41; YMax Answer to Interrogatories at 2-3
(Response to AT&T First Set of Interrogatories No. 1); YMax Answers to
Interrogatories at 8-9 (Response to AT&T First Set of Interrogatories No.
3); Pavol Dep. at 72, 81-82. "TDM" stands for time-division multiplexing,
and "IP" stands for Internet Protocol.
See, e.g., YMax Answer to Interrogatories at 2-3 (Response to AT&T First
Set of Interrogatories No. 1); YMax Answers to Interrogatories at 12-13
(Response to AT&T First Set of Interrogatories No. 6); YMax Answers to
Interrogatories, Ex. 1-2; Pavol Dep. at 107-08; Appendix B at 2; Borislow
Dep. at 66. [Redacted confidential information regarding YMax's network
configuration]. YMax Answers to Interrogatories at 4 (Response to AT&T
First Set of Interrogatories No. 1).
See, e.g., YMax Answers to Interrogatories at 5-6 (Response to AT&T First
Set of Interrogatories No. 1); YMax Answers to Interrogatories, Ex. 1-2;
Appendix B at 1-2.
See, e.g., Pavol Dep. at 74-75, 85-86, 109-112; YMax Answers to
Interrogatories at 3, 5-6 (Response to AT&T First Set of Interrogatories
No. 1); YMax Answers to Interrogatories at 13 (Response to AT&T First Set
of Interrogatories No. 6); YMax Answers to Interrogatories, Ex. 1-3;
Appendix B at 1-2; Borislow Dep. at 122-29.
This lack of clarity stems largely from YMax's provision, under oath, of
incorrect routing information, and from YMax's failure to expressly
acknowledge such falsity until AT&T deposed YMax's witnesses. Compare
Answer Legal Analysis at 1 n.1 ("the services provided by YMAX on these
calls are precisely the same as those provided for terminating calls,
except that the call flow is in the opposite direction"); Pavol Decl. at
5, P: 17 ("The path followed by an originating call is exactly the same,
but in the opposite direction"); Calabro Decl. at 10, P: 21 ("The switched
access services that YMax provides for the delivery of a toll-free call
are the same, albeit in the opposite direction, as those provided when it
terminates a 1+ call."); Answer, Ex. 5, with Borislow Dep. at 218
([Redacted confidential information regarding YMax's network
configuration]); Pavol Dep. at 29-37; 51; Supp. Answer, Ex. B.
[Redacted confidential information regarding YMax's network
configuration]. See, e.g., YMax Answers to Interrogatories at 7 (Response
to AT&T First Set of Interrogatories No. 2); Pavol Dep. at 36-37; Borislow
Dep. at 15-17. In fact, based on a potentially specious distinction
between YMax and its close affiliate MagicJack, L.P., YMax averred to the
Public Service Commission of West Virginia that it does not provide
magicJack purchasers with any ability to originate any calls. See AT&T
Initial Brief, Ex. 30, Emergency Operations of Kanawha County v. YMax
Communications Corp. and MagicJack, L.P., Case No. 10-0383-T-C (complaint
filed March 22, 2010) at 6 (direct testimony of Mark Pavol before Public
Service Commission of West Virginia relating to non-payment by YMax of
E911 fees).
See, e.g., YMax Answers to Interrogatories at 7 (Response to AT&T First
Set of Interrogatories No. 2); YMax Reply Brief at 3-4, 6 n.16; Borislow
Dep. at 218; Pavol Dep. at 29-31. [Redacted confidential information
regarding YMax's network configuration]. See, e.g., AT&T Initial Brief at
2. [Redacted confidential information regarding YMax's network
configuration]. AT&T Initial Brief at 2, 18.
As previously noted, Counts VII-X and Count XIV were severed by agreement
of the parties. See note 4 supra.
Complaint at 26-30, P:P: 63-74.
Id. at 30-36, P:P: 75-94.
Id. at 36-39, P:P: 95-110.
Id. at 45-48, P:P: 139-52.
Id. at 48-49, P:P: 153-55.
See, e.g., Joint Statement at 3, P: 9; Answer Legal Analysis at 40-41.
47 U.S.C. S: 203(a).
47 U.S.C. S: 203(c).
See, e.g., Marcus v. AT&T Corp., 138 F.3d 46, 58 (2d Cir. 1998); Alliance
Commc'ns Cooperative, Inc. v. Global Crossing Telecommunications, Inc.,
663 F.Supp.2d 807, 827 (D. S.D. 2009) ("[T]he fact that [the customer]
benefitted from services provided by [the carriers] does not mean that
[the customer] actually received the access services offered in [the
carriers] tariffs."); MCI Worldcom Network Services, Inc. v. Paetec
Commc'ns Inc., 2005 WL 2145499, at *3 (E.D. Va. 2005) (citing Bryan v.
Bellsouth Commc'ns., Inc., 377 F.3d 424, 429 (4th Cir. 2004) (holding
access charges unlawful when service was provided outside the scope of the
tariff); Qwest Commc'ns Corp. v. Farmers & Merchants Mut. Tel. Co.,
Memorandum Opinion and Order, 24 FCC Rcd 14801, 14810-13, P:P: 21-26
(2009) ("Farmers III"), recon. denied, 25 FCC Rcd 3422 (2010), pet. for
review pending, Farmers & Merchants Mut. Tel. Co. v. FCC, No. 10-1093
(D.C. Cir. filed May 7, 2010).
See, e.g., Complaint at 33-34, P:P: 82-85; Complaint Legal Analysis at
24-26; Reply Legal Analysis at 9-19.
See, e.g., Complaint at 33-34, P:P: 82-85; Complaint Legal Analysis at
24-27; Reply Legal Analysis at 19-28.
See, e.g., Complaint at 30-33, P:P: 77-81; Complaint Legal Analysis at
19-21; Reply Legal Analysis at 19-20.
Reply Legal Analysis at 27-29. See Complaint at 32, P: 80; Complaint Legal
Analysis at 28. AT&T also presents a credible argument that YMax has
violated its Tariff "on many calls" because the services YMax provides
cross LATA boundaries. See, e.g., Reply Legal Analysis at 27-29. Because
we grant AT&T's claims in Counts III and IV based on other terms of the
Tariff, we need not address that argument here.
We express no view about whether or to what extent YMax's functions, if
accurately described in a tariff, would provide a lawful basis for any
charges.
See Tariff S:S: 3.1-3.8, Original Pages No. 45-54.
The Tariff defines "Customer" as "Any person, firm, partnership,
corporation or other entity that uses service under the terms and
conditions of this tariff and is responsible for the payment of charges.
In most contexts, the Customer is an interexchange carrier utilizing the
Company's Switched Access services described in this tariff to reach its
End User customer(s)." Tariff S: 1, Original Page No. 9.
Tariff S: 3.1.1, Original Page No. 45 (emphases added). Section 3.1.1
states in full: "Switched Access Service, which is available to Customers
for their use in furnishing their services to End Users, provides a
two-point communications path between a Customer's Premises and an End
User's Premises. It provides for the use of common terminating, switching
and trunking facilities, and for the use of common subscriber plant of the
Company. Switched Access Service provides for the ability to originate
calls from an End User's Premises to a Customer's Premises and to
terminate calls from a Customer's Premises to an End User's Premises in
the LATA where it is provided."
Tariff S: 1, Original Page No. 10 (emphases added).
Tariff S: 3.2.3, Original Page No. 46 (emphases added).
See, e.g., YMax Initial Brief at 3 n.9; AT&T Reply Brief at 6.
Tariff S: 1, Original Page No. 10 (emphasis added). The Tariff defines
"Company" as "YMax." Tariff S: 1, Original Page No. 8. The Tariff defines
"End User" as: "Any person, firm, partnership, corporation or other entity
that uses the service of the Company under the terms and conditions of
this tariff. In most contexts, the End User is the customer of an
interexchange carrier who in turn utilizes the Company's Switched or
Dedicated Access services described in this tariff to provide the End User
with access to the IC's communication and switching system." Tariff S: 1,
Original Page No. 10.
See, e.g., AT&T Initial Brief at Ex. 36, NECA Tariff F.C.C. No. 5, S: 2.6,
1st Rev. Page 2-68.
Tariff S: 5.1.1, Original Page No. 81. Under the general heading, End User
Access, S: 5.1.1 of the Tariff states, in pertinent part: "This service
provides for the use of an End User Common Line (`local loop') to
originate or terminate interstate long distance calls. A monthly recurring
charge applies to each local access line for this service."
Id.
Tariff S: 5.2, Original Page No. 83. Tariff S: 5.2 provides, in pertinent
part: "In connection with the FCC's Universal Service Orders, the Company
[YMax] will pay a percentage of its retail revenues to support the
Universal Service Fund (USF). The Company [YMax] will pass-through the USF
assessment to its customers by assessing a charge applicable against all
retail interstate and international charges, including usage and non-usage
charges." Although the Tariff defines "Customer" as meaning, "in most
contexts," "an interexchange carrier utilizing the Company's Switched
Access services described in this tariff to reach its End User
customer(s)," Tariff S: 1, Original Page No. 9, the uncapitalized term
"customers," as used in the context of S: 5.2, clearly refers to End
Users. See, e.g., Complaint at 33-34, P: 84; Answer at 26, P: 84; YMax
Answers to Interrogatories at 14 (Response to AT&T First Set of
Interrogatories No. 7).
Tariff S: 5.1.2, Original Page No. 81 ("End Users may select and designate
to [YMax] an interexchange carrier ("IXC") to access, without an access
code, for interstate calls"). See id. at Original Page No. 13 (defining
"Presubscription" as "[a]n arrangement whereby a Customer selects and
designate [sic] to [YMax] or other LEC a carrier he or she wishes to
access, without an access code, for completing interLATA and/or intraLATA
toll calls.").
Tariff S: 5.1.2, Original Page No. 81.
Tariff S: 5.1.2, Original Page No. 81 ("After the End User's initial
selection of a predesignated IXC or the designation that they do not want
to presubscribe to any IXC, a non-recurring charge, as set forth below,
will apply for any change in selection."); see id. at S: 5.5, Original
Page No. 87.
See, e.g., Answer at 26, P: 84; Supp. Answer at 2; Joint Statement at 5,
P: 32; YMax Initial Brief at 8 (citing Borislow Dep. at 153-54; 186-88;
193-94 and Pavol Dep. at 117).
See, e.g., Pavol Dep. at 112-13; YMax Initial Brief at 11-12; TOS
Agreement at 2, S: 1; YMax Answers to Interrogatories at 17 (Response to
AT&T Second Set of Interrogatories No. 3); Borislow Decl. at 4; Appendix B
at 2.
YMax Answer to Interrogatories at 17 (Response to AT&T Second Set of
Interrogatories No. 3); Borislow Dep. at 153-55; Appendix B at 2.
See, e.g., Pavol Dep. at 113; YMax Answers to Interrogatories at 5
(Response to AT&T First Set of Interrogatories No. 1); Calabro Decl. at
18; Borislow Decl. at 4; TOS Agreement at 2, S: 1; Joint Statement at
4-5, P: 25.
See, e.g., Joint Statement at 5, P: 32; 6, P: 43; Answer at 26, P: 84;
Supp. Answer at 2; Answer Legal Analysis at 49; YMax Answers to
Interrogatories at 14 (Response to AT&T First Set of Interrogatories No.
7); YMax Initial Brief at 8-9; Pavol Decl. at 13-14, P: 43; Pavol Dep. at
118, 127-30, 150; Appendix B at 3.
See, e.g., YMax Answers to Interrogatories at 15 (Response to AT&T First
Set of Interrogatories No. 7); YMax Initial Brief at 8-9; Borislow Dep. at
185-90; Pavol Dep. at 117.
Tariff S: 1, Original Page No. 10 (emphasis added). See YMax Reply Brief
at 7.
See TOS Agreement; Joint Statement at 4, P: 19.
YMax's Answers to Interrogatories at 14 (Response to AT&T First Set of
Interrogatories No. 7). See Supp. Answer at 1-2.
TOS Agreement at 1. YMax and MagicJack, L.P. are owned by YMax
Corporation, which is owned by VocalTec Communications Ltd. See Borislow
Dep. at 9-10; VocalTec Communications Ltd. SEC Form 6-K (July 2010), at
Complaint, Ex. 10.
TOS Agreement at 11, S: 21.
Cf. Tariff S: 5.1.1, Original Page No. 81.
See TOS Agreement at 2, S: 1. See also Pavol Decl. at 8, P: 28.
Tariff S: 1, Original Page No. 10 (emphasis added).
See note 50 supra.
See id.
Farmers III, 24 FCC Rcd at 14812-13, P:P: 24-26; Id. at 14812, P: 25
(finding "the evidence of the parties' actual course of dealing
demonstrates that there was no purchase of tariffed services").
YMax's attempt to distinguish the Farmers holding based on differences
between YMax's Tariff language and that at issue in Farmers is unavailing.
See Answer Legal Analysis at 49. YMax points out that the tariff in
Farmers defined "end user" as a "customer" that "subscribe[s] to the
services offered under [the] tariff," whereas YMax's Tariff defines "End
User" as an entity that "uses the service of [YMax] under the terms and
conditions of this tariff." YMax Reply Brief at 8-9 (internal quotations
omitted). YMax argues that the Called/Calling Parties qualify as End Users
under its Tariff because they "were in fact using the service of YMax"
when they received calls from AT&T customers. Answer Legal Analysis at 49.
We disagree. The YMax Tariff does not define an "End User" as anyone who
merely "uses" any YMax service. Rather, the Tariff language limits "End
Users" to those entities that use YMax's service "under the terms and
conditions of this tariff." As shown above, the Calling/Calling Parties
take service under the separate TOS Agreement - not under the terms and
conditions of the Tariff. Nor are we persuaded by YMax's attempt to
distinguish Farmers on several other grounds, none of which undermines the
well-established rule, affirmed in Farmers, that a common carrier may only
assess charges for services specifically described in its tariff. See
Answer Legal Analysis at 47-49.
See, e.g., Pavol Dep. at 118; Borislow Dep. at 205-08; YMax Initial Brief
at 8-9.
See, e.g., YMax Initial Brief at 2, 7-8; YMax Reply Brief at 9, 12, 19-20.
See, e.g., YMax Initial Brief at 2-4; YMax Reply Brief at 7 ("Thus, End
Users includes both YMax users and AT&T users because each use the
switched access services that YMax provides under the Tariff in order to
have telephone calls between two people.").
See, e.g., YMax Initial Brief at 3-4; YMax Reply Brief at 8-9. YMax did
not make this argument in its Answer.
See, e.g., Atchison, Topeka & Santa Fe Ry. Co. v. United States, 181 Ct.
Cl. 315, 322 (Ct. Cl. 1967); BellSouth Telecomms., Inc. v. Kerrigan, 55 F.
Supp.2d 1314, 1324 (N.D. Fla. 1999); Quaker State Oil Refining Corp. v.
United States, 465 F. Supp. 75, 79 (W.D. Pa. 1979); United Artists
Payphone Corp. v. New York Tel. Co., and AT&T, Co., 8 FCC Rcd 5563, 5565,
P: 9 (1993). Courts have recognized that the Commission has special
expertise in reviewing and interpreting tariffs. See, e.g., Allnet
Commc'ns Serv. Inc. v. National Exchange Carrier Assoc., 965 F.2d 1118,
1120 (D.C. Cir. 1992); Halprin, Temple, Goodman & Sugrue v. MCI, Order on
Reconsideration, 14 FCC Rcd 21092, 21100, P: 19 (1999).
Tariff S: 3.1.1, Original Page No. 45 (emphases added).
Tariff S: 3.2.4, Original Page No. 46 (emphasis added).
Tariff S: 1, Original Page No. 10 (emphasis added).
Calabro Decl. at 4-5, P: 10 (emphasis added). Mr. Calabro further
testified that "[w]hen AT&T delivered calls to YMax for completion to
YMax's end users, AT&T indeed made use of YMax's common terminating,
switching and trunking facilities and it was for use of these facilities
that AT&T was assessed switched access charges by YMax." Id. (emphasis
added).
Supp. Answer at 3.
See, e.g., YMax Initial Brief at 2-4; YMax Reply Brief at 7. YMax did not
make this argument in its Answer. YMax Initial Brief at ii, 3-4. In its
Answer and supporting materials, YMax characterized only Called/Calling
Parties as "end users," and did not refer to AT&T customers that way. See,
e.g., Answer at 26, P: 85 ("YMax end users obtain access to the public
switched telephone network from YMax pursuant to the terms of the
Tariff"); Calabro Decl. at 4, P: 9 ("At issue in this complaint proceeding
are two specific types of calls: the first being 1+ long distance calls
placed by an AT&T long distance customer to a YMax end user; and the
second being 1+8YY toll free calls placed by YMax end users to AT&T served
toll free customers."); Id. at 4-5, P: 10 ("Switched access allows the IXC
to receive interexchange calls that are originated by YMax's end users and
allows the IXC to terminate calls to YMax's end users.").
Tariff S: 1, Original Page No. 10.
See, e.g., Borislow Dep. at 62 ([Redacted confidential information
regarding YMax's network configuration]). Likewise, on 8YY calls, the AT&T
toll-free customer does not obtain its connection to AT&T's network from
YMax.
See note 11 supra. Notably, the Called/Calling Parties cannot satisfy the
second sentence of the End User definition, either. Because they do not
obtain End User Access under the Tariff, Called/Calling Parties cannot
become "customers of an IXC," either by presubscription, or by dialing an
access code, as described in section 5.1.2 of YMax's Tariff.
Tariff S: 1, Original Page No. 10 (defining "End User," in relevant part,
as "[a]ny person, firm, partnership, corporation or other entity that uses
the service of the Company under the terms and conditions of this
tariff").
We note that, under YMax's interpretation, it would always have an End
User (and thus an "End User Premises") on both ends of any long-distance
call, and thus the Tariff would entitle it to charge both originating and
terminating access simultaneously on every call. Nor would YMax's
interpretation be limited to the endpoints of a call: every entity in the
chain of a call, including the originating access provider, the tandem
providers, and the ISPs directly connected to the final destination of the
call, would also be "End Users," because all of those entities "use"
YMax's service in conjunction with their own services to complete a call.
This provides further confirmation that YMax's proffered interpretation of
its Tariff makes no sense.
See, e.g., Associated Press v. FCC, 452 F.2d 1290, 1299 (D.C. Cir. 1971);
Farmers III, 24 FCC Rcd at 14810, n.83; American Satellite Corp. v. MCI
Telecommunications Corp., Memorandum Opinion and Order, 57 FCC2d 1165,
1167, P: 6 (1976). Certain representations made by YMax to the Public
Service Commission of West Virginia further undermine YMax's defense of
its originating switched access charges. In a proceeding to address YMax's
non-payment of E911 fees, YMax averred that it does not provide any
service enabling magicJack purchasers to originate calls, and that
MagicJack, L.P. does not provide any service enabling magicJack purchasers
to terminate calls. See, e.g., AT&T Initial Brief, Ex. 30 at 6 (transcript
of testimony of Mark Pavol before the Public Service Commission of West
Virginia asserting that "[n]either magicJack nor YMax offers a single
service that permits users generally to receive calls that originate on
the PSTN and to terminate calls to the PSTN"). We find it difficult, if
not impossible, to square YMax's representation to the Public Service
Commission of West Virginia that it provides no ability to originate calls
with YMax's assertion here that it provides originating access service.
Specifically, we find that YMax's violation of section 203(c) of the Act
constitutes an unreasonable practice that violates section 201(b) of the
Act. 47 U.S.C. S:S: 203(c), 201(b).
We note that neither party has mentioned the definition of "end user" in
section 69.2(m) of the Commission's rules. 47 C.F.R. S: 69.2(m). Thus,
this Order need not, and does not, address the question of whether section
69.2(m) has any bearing on the claims and defenses presented.
Tariff S: 3.3.2, Original Page No. 47. Section 3.3.2 provides in full:
"The End Office Switching rate category establishes the charges related to
the use of end office switching equipment, the terminations in the end
office of end user lines, the terminations of calls at Company Intercept
Operators or recordings, the Signaling Transfer Point (STP) costs, and the
SS7 signaling function has between the end office and the STP." Id.
The full definition of "End Office Switch" is: "A Company switching system
where Customer or End User station loops are terminated for purposes of
interconnection to other station loops, trunks or access facilities. In
most contexts, the End User is connected via station loops or trunks to an
End Office Switch." Tariff S: 1, Original Page No. 10. This definition
appears to be based on traditional ILEC tariffs describing traditional
networks. It is, for example, very similar to the definition of "End
Office" in the National Exchange Carrier Association ("NECA") tariff. See
AT&T Initial Brief at Ex. 36, NECA Tariff F.C.C. No. 5, S: 2.6, 1st Rev.
Page 2-68 (defining "End Office" in part as "a local Telephone Company
switching system where Telephone Exchange Service customer station loops
are terminated for purposes of interconnection to each other."); see also
AT&T Reply Brief at 13.
Tariff S: 1, Original Page No. 10. The full definition of "End Office" is:
"The Central Office from which the End User's Premises would normally
obtain local exchange service and dial tone from the Company or other
local exchange carrier." Id.
Tariff S: 1, Original Page No. 8. The full definition of "Central Office"
is: "The premises of the Company or another local exchange carrier
containing one or more switches where Customer or End User station loops
are terminated for purposes of interconnection to other station loops,
trunks or access facilities." Id.
See Tariff S: 1, Original Page No. 10.
See Tariff S: 3.3.2, Original Page No. 47.
See authorities cited at note 92 supra.
See, e.g., Verizon Commc'ns, Inc. v. FCC, 535 U.S. 467, 489-90 (2002)
(stating that the "local loop," which runs from "local switches" and
terminates at "terminal points in individual houses and businesses" is
"traditionally ... made of copper wire, though fiber-optic cable is also
used"); Review of the Section 251 Unbundling Obligations of Incumbent
Local Exchange Carriers, Implementation of the Local Competition
Provisions of the Telecommunications Act of 1996, Deployment of Wireline
Services Offering Advanced Telecommunications Capability, Report and Order
and Order on Remand and Further Notice of Proposed Rulemaking, 18 FCC Rcd
16978, 17111-12, P:P: 214-16 (2003) (subsequent history omitted)
(describing a "local loop" as "copper cable pairs" or "fiber-optic cable"
that "connect[s] customers directly to a central office" and establish
"one direct connection or transmission path to each customer premises");
see also id. at 17102, P: 197 n.620 (stating "the local loop network
element is a transmission facility between a distribution frame (or its
equivalent) in an incumbent LEC central office and the loop demarcation
point at an end-user customer premises"); AT&T Corp., MCI
Telecommunications Corp., Bell Atlantic Pennsylvania, Memorandum Opinion
and Order, 14 FCC Rcd 556, 559, P: 4 (1998), recon. denied, 15 FCC Rcd
7467 (2000) ("A common line, sometimes called a `local loop,' connects an
end user's home or business to a LEC central office. A characteristic
feature of a common line is that it enables the end user to complete local
as well as interstate and foreign calls.") (footnotes omitted); Newton's
Telecom Dictionary (16th ed.) at 507 (defining "loop" as "the pair of
wires that winds its way from the central office to the telephone set or
system at the customer's office, home or factory, i.e., `premises' in
telephones").
See, e.g., Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996; Interconnection between Local Exchange
Carriers and Commercial Mobile Radio Service Providers, 11 FCC Rcd 15499,
15691, P: 380 (1996) (also noting that a "local loop" "includes, for
example, two-wire and four-wire analog voice-grade loops and two-wire and
four-wire loops that are conditioned to transmit the digital signals
needed to provide services such as ISDN, ADSL, HDSL, and DS1-level
signals") (subsequent history omitted); Ameritech Operating Companies, 11
FCC Rcd 14028, 14031-32, P: 6 (1996) ("`Common line' is the term in the
Part 69 Rules that refers to the facilities that connect subscriber
premises and LEC end office switches, also known as `local loops' or
`subscriber lines.'") (emphasis added).
See, e.g., Verizon Commc'ns, Inc., 535 U.S. at 490 (characterizing a
"local loop" as the "`last mile' of feeder wire"); Covad Commc'ns v. FCC,
450 F.3d 528, 532 (D.C. Cir. 2006) (describing a "local loop" as "wires
that run from switches over the `last mile' to consumers' telephones");
AT&T, Inc. & BellSouth Corp., 22 FCC Rcd 5662, 5677, P: 28 (2007) (stating
that a "local loop" is a "`last mile' connection" that "runs from the
transport facility to the end-user customer").
See, e.g., Owens Aff. at 10 ("Switched access charges were established
for the purpose of ensuring that interexchange carriers contribute to the
recovery of the costs of local exchange carrier facilities used in the
origination and termination of interexchange calls from and to end
users.").
See Tariff S: 4.
See, e.g., Pavol Dep. at 113; YMax Initial Brief at 11-12. [Redacted
confidential information regarding YMax's network configuration]. See YMax
Initial Brief at 8. See also Borislow Dep. at 91-93.
According to YMax, the fact that Called/Calling Parties procure their own
physical, last mile connection from a third-party ISP is irrelevant
because YMax has not sought to charge AT&T a carrier common line ("CCL")
charge for that last mile connection. See, e.g., Answer Legal Analysis at
38. We disagree. Whether YMax has assessed a CCL charge on AT&T has no
bearing on the meaning of End Office Switching under the Tariff.
Answer Legal Analysis at 42; see also Answer at 21-22, P: 66; YMax Initial
Brief at 13; YMax Reply Brief at 12-14; 25. [Redacted confidential
information regarding YMax's network configuration]. See, e.g., YMax
Initial Brief at 20 n.95. AT&T has presented substantial evidence that,
although YMax's equipment may have traditional switching capabilities,
these capabilities are not actually used with respect to the traffic at
issue. See, e.g., Reply Legal Analysis at 39. We need not (and do not)
decide here whether any of YMax's collocated equipment qualifies as a
switch under the Tariff.
See, e.g., Pavol Decl. at 11, P: 36. See also id. at 10, P: 32; Answer
Legal Analysis at 42; YMax Initial Brief at 13; YMax Reply Brief at 11-12,
14, 21.
YMax undermines its position by citing to a provision in another carrier's
Statement of Generally Available Terms and Conditions of Interconnection
("SGAT") that explicitly refers to "Virtual Transport" and "virtual Loop
transport." See YMax Reply Brief at 12 n.37 and Ex. 26. The cited
provision illustrates that when a carrier intends to describe a "virtual"
service or facility, it does so in express terms.
See Pavol Decl. at 7, P: 26; 10, P: 32.
Borislow Dep. at 172-74. See Pavol Decl. at 7, P: 26.
See, e.g., Pavol Dep. at 72-73 ([Redacted confidential information
regarding YMax's network configuration]).
See, e.g., Borislow Dep. at 88 ("A. ... personally I could be in France
and be on AOL, and it would go through a proxy in - in - in the United
States ... Q. But if someone wanted to, they could go to Best Buy or Radio
Shack, buy a MagicJack, and then take it to France and use it, couldn't
they? A. Yes. Q. Okay. And they could use a U.S. NPA-NXX when they made
calls from France, couldn't they? A. That's correct."); Id. at 90-91
([Redacted confidential information regarding YMax's network
configuration]); see also Calabro Dep. at 56 ("Q. . . .the called party
could be located in, say, Australia? A. Why not? ... I don't know that
they could get it on the moon, but if they were, we could probably do
that, too.").
See note 104 supra.
Tariff S: 3.2.5(A), Original Page No. 46; id. at S: 3.3.1, Original Page
No. 47; Answer Legal Analysis at 43.
Tariff S: 1, Original Page No. 10.
Tariff S: 1, Original Page No. 8.
See Part III.A.2.a supra.
47 U.S.C S: 207 ("Any person claiming to be damaged by any common carrier
subject to the provisions of this Act may either make complaint to the
Commission ... or may bring suit ... in any district court of the United
States of competent jurisdiction; but such person shall not have the right
to pursue both such remedies."). See Answer at 41; Answer Legal Analysis
at 7-9.
See YMAX Communications Corp. v. AT&T Corp., and BellSouth Long Distance,
Inc., Complaint, Case No. 4:10-cv-04115-DMR (N.D. Cal. filed Sep. 14,
2010); YMAX Communications Corp. v. AT&T Corp., and BellSouth Long
Distance, Inc., Answer and Counterclaims of AT&T Corp. and BellSouth Long
Distance, Inc., Case No. 4:10-cv-04115-DMR (N.D. Cal. filed Oct. 26,
2010). YMax also asserts that the Complaint should be dismissed because
AT&T has not paid YMax's bills. Answer at 41; Answer Legal Analysis at
4-7. Even assuming, arguendo, that such an "unclean hands" defense could
apply in this context, YMax's assertion lacks merit. YMax's Tariff
expressly contemplates that a customer may withhold payment of disputed
charges while YMax pursues resolution, which, as discussed above, YMax has
done by filing a collection action in federal court. See Tariff S: 2.10.4,
Second Revised Page No. 32. Thus, YMax has not experienced any inequitable
conduct warranting dismissal of the Complaint.
See, e.g., Reply at 8 n.5; Motion to Lodge Court Order and Hearing
Transcript, File No. EB-10-MD-005, Ex. B (filed Feb. 3, 2011) ("Motion to
Lodge Court Order and Hearing Transcript") (attaching a transcript of a
court hearing regarding, inter alia, AT&T's counterclaims). AT&T's
unopposed Motion to Lodge Court Order and Hearing Transcript is granted.
See generally, Fed. R. Civ. P. 13(a) (describing compulsory
counterclaims).
Motion to Lodge Court Order and Hearing Transcript, Ex. A (attaching YMAX
Communications Corp. v. AT&T Corp., and BellSouth Long Distance, Inc.,
Case No. 4:10-cv-04115-DMR, Order Denying Without Prejudice YMax
Communication Corp.'s Motions to Dismiss AT&T's Counterclaims, to Strike
AT&T's Affirmative Defenses, and for Partial Summary Judgment and Granting
AT&T's Motion to Stay (N.D. Cal. dated Jan. 14, 2011) (granting AT&T's
motion to stay the court case pending the Commission's resolution of
AT&T's formal complaint).
Answer Legal Analysis at 9.
47 C.F.R. S: 1.721(a)(5).
Answer at 41.
Answer at 42.
See, e.g., APCC Services, Inc. v. NetworkIP, LLC, Memorandum Opinion and
Order, 22 FCC Rcd 4286, 4311, P: 60 (2007) (subsequent history omitted).
See, e.g., Answer at 42 n.100.
Burgess & Britt Decl. at 3-4, P:P: 6-10; Burgess & Britt Reply Decl. at
7-9, P:P: 17-22.
See, e.g., Reply Legal Analysis at 59, 71 n.231.
See Answer at 42 (YMax Affirmative Defense P: 4).
See Answer at 42 (YMax Affirmative Defense P: 5).
AT&T stated that a decision that YMax has violated the terms of its Tariff
would obviate the need to decide AT&T's other claims against YMax. See,
e.g., Reply Legal Analysis at 9 (asserting that "the Complaint can be
decided on the ground that YMAX has violated its tariffs (and hence
sections 203 and 201(b) of the Communications Act) by assessing charges
that are not authorized by its tariff" and that the "issues under the
Commission's CLEC access charge orders and rules, the Commission's
Computer Inquiry rules, and section 201(b) of the Communications Act are
relevant only if YMax's tariffs actually authorized the access charges
that YMax has assessed") (emphasis in original).
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Federal Communications Commission FCC 11-59
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Federal Communications Commission FCC 11-59