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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of )
Southwestern Bell Telephone Company, d/b/a )
AT&T Texas,
)
Complainant,
) File No. EB-11-MD-008
v.
)
UTEX Communications Corporation, d/b/a
FeatureGroup IP, )
Defendant. )
)
)
)
MEMORANDUM OPINION AND ORDER
Adopted: February 10, 2012 Released: February 10, 2012
By the Commission:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (Order), we grant in part and
otherwise dismiss without prejudice a formal complaint that
Southwestern Bell Telephone Company, d/b/a AT&T Texas (AT&T Texas),
filed against UTEX Communications Corporation, d/b/a FeatureGroup IP
(FeatureGroup IP), under section 208 of the Communications Act of
1934, as amended (the Act). In brief, AT&T Texas alleges that, as
applied to AT&T Texas, certain provisions in a FeatureGroup IP federal
tariff pertaining to a call control facilitation service violate
section 201(b) of the Act, because those tariff provisions (i)
conflict with a preexisting interconnection agreement between the
parties (Count I), and (ii) breach the benchmarking and functional
equivalent requirements of rule 61.26 (Count II). As explained below,
we grant Count I and dismiss Count II without prejudice.
II. BACKGROUND
A. Factual Background
2. AT&T Texas is an incumbent local exchange carrier (incumbent LEC) in
Texas. FeatureGroup IP is a competitive local exchange carrier
(competitive LEC) in Texas. At all relevant times, the parties
exchanged calls in Texas under an interconnection agreement
(Interconnection Agreement or Agreement or ICA) that became effective
in 2000 pursuant to sections 251 and 252 of the Act.
3. For purposes relevant here, the Interconnection Agreement required
that the parties' networks interconnect utilizing a call control
system known as Signaling System 7 (SS7). The calls at issue
traversed FeatureGroup IP's network in an Internet Protocol (IP)
format employing a call control system known as Session Initiation
Protocol (SIP). By contrast, the calls at issue traversed AT&T Texas's
network in a non-IP format employing SS7.
4. Because of the differing call control systems employed by FeatureGroup
IP and AT&T Texas, the exchange of calls between them could occur only
if the call control system associated with the calls was altered -
from SIP to SS7 and vice-versa - when the calls traveled from one
party's network to the other's. Toward that end, FeatureGroup IP
utilized a service called Signaling Layer Translation Service (SLTS)
that facilitated the alteration of the call control system associated
with the calls from SIP to SS7 and from SS7 to SIP.
5. Beginning in 2005 - almost five years after the parties'
Interconnection Agreement became effective - and at all relevant times
thereafter, FeatureGroup IP has had on file at the Commission a tariff
(the SLTS Tariff) concerning SLTS (among many other things). The SLTS
Tariff purports to charge a non-recurring SLTS fee of $10,000 per LATA
in which traffic exchanges involving SLTS occur, plus a recurring SLTS
fee of $0.05 per session (i.e., per call).
6. As stated above, in order for traffic to traverse to and from the
FeatureGroup IP and AT&T Texas networks, the call control system must
be altered by FeatureGroup IP. FeatureGroup IP used its SLTS call
control alteration function to accomplish this, and invoiced AT&T
Texas for substantial amounts allegedly due for SLTS under
FeatureGroup IP's SLTS Tariff (SLTS Charges).
A. Procedural Background
7. FeatureGroup IP filed a claim in federal district court seeking to
recover the charges it invoiced AT&T Texas for SLTS. In response, AT&T
Texas alleged, inter alia, that FeatureGroup IP's SLTS Tariff is
unlawful, for a number of reasons. AT&T Texas then filed an unopposed
motion to refer to the Commission, on primary jurisdiction grounds,
issues regarding the lawfulness of FeatureGroup IP's SLTS Tariff,
which motion the federal district court granted.
8. Meanwhile, starting before the Court Collection Action began and
continuing after issuance of the primary jurisdiction referral order
arising from that Action, the parties engaged in exhaustive litigation
before the Public Utility Commission of Texas (Texas PUC) regarding
the meaning of the parties' Interconnection Agreement. Among the
scores of disputed issues were issues about whether and how the
Interconnection Agreement directs the parties to address, both
operationally and financially, interconnection of their disparate call
control systems (i.e., SIP for FeatureGroup IP, and SS7 for AT&T
Texas). The Texas PUC issued a final Arbitration Award, whereupon
FeatureGroup IP sought federal district court review of the
Arbitration Award under section 252(e)(6) of the Act.
9. Almost a year after FeatureGroup IP filed the Court Arbitration Review
Action, AT&T Texas initiated the instant formal complaint proceeding
to effectuate the primary jurisdiction referral order in the Court
Collection Action. AT&T Texas alleges that, as applied to AT&T Texas,
the charges in FeatureGroup IP's SLTS Tariff violate section 201(b) of
the Act, because they (i) conflict with the parties' Interconnection
Agreement, as conclusively construed by the Texas PUC in the
Arbitration Award ("Count I"), and (ii) breach the benchmarking and
functional equivalent requirements of rule 61.26 ("Count II"). For the
following reasons, we grant Count I. Because we need not reach the
merits of Count II to afford AT&T Texas the relief to which it would
be entitled under that Count, we dismiss Count II without prejudice.
III. DISCUSSION
A. The SLTS Tariff is Unlawful If It Conflicts with the
Interconnection Agreement.
10. Two Supreme Court cases have established a rule - commonly known as
the "Sierra-Mobile" doctrine - regarding the interplay between tariffs
and pre-existing contracts. As the D.C. Circuit has observed, "[t]he
rule of Sierra [and] Mobile ... is refreshingly simple: The
[pre-existing] contract between the parties governs the legality of
the [tariff] filing. Rate filings consistent with [pre-existing]
contractual obligations are valid; rate filings inconsistent with
[such] contractual obligations are invalid."
11. As a result, on this the parties agree: section 201(b) of the Act and
the Sierra-Mobile doctrine preclude enforcement of a tariff provision
if enforcing the provision would conflict with a pre-existing
interconnection agreement. The parties also agree that, if billing
AT&T Texas the SLTS charges specified in the SLTS Tariff would
conflict with the parties' pre-existing Interconnection Agreement, as
interpreted by the Texas PUC's Arbitration Award, then FeatureGroup IP
may not lawfully do so. Accordingly, the question presented here is
whether the SLTS charges specified in the SLTS Tariff, as applied to
AT&T Texas, conflict with the parties' Interconnection Agreement as
interpreted in the Arbitration Award. Put more finely, the question
presented here is whether the parties' Interconnection Agreement, as
interpreted by the Arbitration Award, requires FeatureGroup IP to bear
the costs associated with exchanging calls with AT&T Texas via SS7.
A. As Interpreted by the Arbitration Award, the Interconnection
Agreement Requires FeatureGroup IP to Bear Any Costs Associated with
Exchanging Calls With AT&T Texas Via SS7.
12. In the Texas PUC arbitration proceeding, the parties presented scores
of questions regarding the meaning of the parties' Interconnection
Agreement. One question pertinent here was: "Does the Parties'
[Interconnection Agreement] require UTEX to deliver traffic to AT&T
Texas's network using SS7 signaling protocol?" FeatureGroup IP's
position was that, if prices and terms contained in an AT&T Texas
federal tariff can apply to certain services supplied by AT&T Texas to
FeatureGroup IP -- notwithstanding the parties' Interconnection
Agreement -- then the SLTS prices and terms contained in FeatureGroup
IP's Tariff can apply to the service of SIP/SS7 protocol conversion
supplied by FeatureGroup IP to AT&T Texas, notwithstanding the
parties' Interconnection Agreement. AT&T Texas's contrary position was
that, "[b]ecause the Parties' ICA requires UTEX to use SS7 trunks on
the traffic that it signals to AT&T Texas, UTEX then has the financial
obligation to convert its traffic to SS7. ... [B]y billing AT&T Texas
for signaling layer translation service (SLTS), UTEX is attempting to
charge AT&T Texas for something that UTEX is obligated to provide."
13. The Arbitration Award found in favor of AT&T Texas, stating that "the
Parties' ICA does require UTEX to deliver traffic to AT&T Texas's
network using SS7 signaling protocol." In so holding, the Arbitration
Award relied on a provision of the Interconnection Agreement
indicating that "[t]runks will utilize Signaling System 7 (SS7)
protocol signaling when such capabilities exist within the [AT&T
Texas] network."
14. The next question addressed in the Texas PUC's arbitration proceeding
was: "If the answer to [the preceding question] is `Yes,' does the ICA
prohibit UTEX from charging AT&T Texas for translating messages to a
protocol other than SS7?" FeatureGroup IP's position was, again, that
if certain prices contained in an AT&T Texas federal tariff can
sometimes apply to FeatureGroup IP -- notwithstanding the parties'
Interconnection Agreement -- then the SLTS prices contained in
FeatureGroup IP's Tariff can apply to AT&T Texas, notwithstanding the
parties' Interconnection Agreement. AT&T Texas's contrary position was
that, under standard industry practice, carriers bear their own costs
associated with converting call control systems to SS7, where
necessary, and that "no carrier has ever attempted to tariff the [call
control system] conversion it performs and to bill those rates to
non-ordering carriers."
15. The Arbitration Award found in favor of AT&T Texas, stating:
UTEX argues for equivalent treatment, but the terms of the ICA do not
support UTEX's position that it may charge AT&T Texas for converting
messages to an SS7 protocol. UTEX has not cited any ICA provision that
permits it to charge AT&T for translating messages to a protocol other
than SS7. On the other hand, the Parties' ICA ... explicitly addresses
translation into SS7 protocol. Under the ICA ... UTEX (not AT&T Texas)
must ensure that its messages are converted and sent to AT&T Texas in SS7
protocol.
16. We interpret the foregoing findings of the Arbitration Award to mean
the following: because the parties' Interconnection Agreement requires
FeatureGroup IP to exchange calls with AT&T Texas in SS7 protocol, it
is FeatureGroup IP's responsibility both (i) to perform any necessary
conversions to and from SS7 protocol, and (ii) to bear any costs of
such conversion. That is, both the operational and the financial
obligations of SIP/SS7 conversions fall within FeatureGroup IP's
contractual duty to "ensure that its messages are converted and sent
to AT&T Texas in SS7 protocol." As stated above, under the
Sierra-Mobile doctrine, tariffed "rate filings inconsistent with
[pre-existing] contractual obligations are invalid." Consequently, as
applied to AT&T Texas, the charges for SLTS in FeatureGroup IP's SLTS
Tariff conflict with the prohibition of such charges under the
Interconnection Agreement, and thus FeatureGroup IP's imposition of
those charges is unjust and unreasonable under the Sierra-Mobile
doctrine and section 201(b) of the Act.
17. FeatureGroup IP challenges that interpretation of the Arbitration
Award on what appear to be three grounds. First, FeatureGroup IP seems
to argue that, according to the portions of the Arbitration Award just
discussed (Arbitration Award at 29-30), the Interconnection Agreement
is simply silent on the issue of SIP/SS7 protocol conversion, and thus
the Agreement neither permits nor prohibits FeatureGroup from charging
AT&T Texas for it. Accordingly, in FeatureGroup IP's view, there is
nothing in the Interconnection Agreement with which the SLTS Tariff
conflicts. FeatureGroup IP's proffered interpretation of those
portions of the Arbitration Award is not as credible as AT&T's.
Construed within the context of the wording of the questions presented
and of the positions asserted by the parties, the Award's decisional
language finds that FeatureGroup IP must bear the cost of SIP/SS7
protocol conversion, especially given that the Interconnection
Agreement required that the parties interconnect using SS7.
18. FeatureGroup IP also argues that we must construe the Arbitration
Award to find no conflict between the SLTS Tariff and the
Interconnection Agreement, because the Arbitration Award interprets
the Interconnection Agreement to allow AT&T to impose certain
SS7-related charges via federal tariff. We disagree. The Arbitration
Award expressly rejects the false symmetry that FeatureGroup IP
attempts to construct. Moreover, FeatureGroup IP does not specifically
identify any such charges imposed by AT&T or any provision of the
Interconnection Agreement with which those unspecified charges may
conflict.
19. FeatureGroup IP further argues that, in later portions of the
Arbitration Award not discussed above (Arbitration Award at 128-29),
the Arbitration Award held that the Interconnection Agreement says
nothing about whether FeatureGroup IP must bear the cost of SIP/SS7
protocol conversions; and thus, according to FeatureGroup IP, the
Interconnection Agreement does not conflict with FeatureGroup IP's
SLTS Tariff in any way that would preclude FeatureGroup IP from
imposing SLTS Charges on AT&T Texas pursuant to the SLTS Tariff. For
the following reasons, we disagree.
20. The portion of the Arbitration Award on which FeatureGroup IP relies
concerned three questions that the Arbitration Award consolidated and
that, in combination, essentially asked the Texas PUC to rule on the
validity of FeatureGroup IP's federally tariffed SLTS charges.
FeatureGroup IP's position was, that "if AT&T Texas prevails on its
tariff claims regarding access charges ... (based on AT&T Texas's
state or federal tariffs) then UTEX must prevail on its tariff claim
regarding SLTS." AT&T Texas's contrary position was, in pertinent
part, the same as its position here - the SLTS charges violated the
Communications Act. The Arbitration Award held that, because the
disputed SLTS charges did not arise from the Interconnection Agreement
itself, the lawfulness of those SLTS charges was beyond the scope of
the Texas PUC's purview:
The Arbitrator finds that the dispute regarding SLTS charges exceeds the
scope of a post-ICA dispute resolution proceeding. The scope of a post-ICA
dispute resolution includes: (1) proper interpretation of terms and
conditions in the ICA; (2) implementation of activities explicitly
provided for, or implicitly contemplated in, the ICAs, including interim
rates and terms expiring before the contract expiration date; and (3)
enforcement of terms and conditions in an ICA. In the present case, the
ICA never explicitly mentions or implicitly contemplates Session Internet
Protocol (SIP) to SS7 translation. In contrast, the ICA expressly refers
to access charges and SS7 B-Link interconnection. Accordingly, SLTS
charges are not appropriate for consideration in this proceeding.
21. Unlike FeatureGroup IP, we do not view the foregoing portion of the
Arbitration Award as creating a "void" in the Interconnection
Agreement about whether FeatureGroup IP must bear the cost of
performing whatever functions are necessary to interconnect with AT&T
Texas via SS7. Instead, we construe the Arbitration Award as simply -
and correctly - declining to address the legality of a federal tariff,
i.e., FeatureGroup IP's federal tariff from which the disputed SLTS
charges arise. In other words, by stating that "SLTS charges are not
appropriate for consideration in this proceeding," the Arbitration
Award is merely reaching the unremarkable, and indisputable,
conclusion that assessing the lawfulness of FeatureGroup IP's federal
SLTS Tariff is not a task for the Texas PUC to perform.
22. In sum, the Arbitration Award holds that the parties' Interconnection
Agreement precludes FeatureGroup IP from charging AT&T Texas for
performing whatever functions are necessary to interconnect with AT&T
Texas via SS7, because FeatureGroup IP is responsible for any such
functions. As a result, FeatureGroup IP's imposition of SLTS charges
on AT&T Texas pursuant to the SLTS Tariff is unlawful under the
Sierra-Mobile doctrine and section 201(b).
A. FeatureGroup IP's Affirmative Defenses Lack Merit.
23. FeatureGroup IP urges us to deny AT&T Texas's Complaint because AT&T
Texas allegedly has "unclean hands." In particular, FeatureGroup IP
alleges that AT&T Texas has breached the parties' Interconnection
Agreement in several ways and thus should not be heard to complain of
any allegedly unlawful conduct by FeatureGroup IP. Those affirmative
defenses lack merit. Even assuming, arguendo, that an unclean hands
defense is available in a section 208 formal complaint proceeding, it
would fail here, because AT&T Texas's allegedly wrongful conduct does
not pertain to the circumstances at issue in this proceeding, i.e.,
provision of and payment for call control interconnection services
under the parties' Interconnection Agreement and the SLTS Tariff.
A. Conclusion
24. For the foregoing reasons, we grant Count I of the Complaint and hold
that, as applied to AT&T Texas, the provisions of the SLTS Tariff
pursuant to which FeatureGroup IP purported to impose charges for SLTS
on AT&T Texas are unjust and unreasonable in violation of section
201(b) of the Act. Thus, FeatureGroup IP shall not collect or attempt
to collect any such charges from AT&T Texas. Moreover, because our
ruling in favor of AT&T Texas on Count I of the Complaint affords AT&T
Texas all the relief to which it would be entitled were we to grant
Count II of the Complaint, we need not and do not reach the merits of
Count II of the Complaint, and we dismiss Count II of the Complaint
without prejudice.
IV. ORDERING CLAUSE
25. Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j), 201,
and 208 of the Communications Act of 1934, as amended, 47 U.S.C. S:S:
151, 154(i), 154(j), 201, and 208, and sections 1.720-1.736 of the
Commission's rules, 47 C.F.R. S:S: 1.720-1.736, that Count I of the
Complaint is GRANTED to the extent described herein, and Count II of
the Complaint is DISMISSED without prejudice.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
47 U.S.C. S: 208. See Formal Complaint of AT&T Texas, File No.
EB-11-MD-008 (filed Sept. 9, 2011) (Complaint). See also Proposed Findings
of Fact, Conclusions of Law, and Legal Analysis of AT&T Texas, File No.
EB-11-MD-008 (filed Sept. 9, 2011) (Complaint Legal Analysis).
FeatureGroup IP filed an answer, see Defendant's Answer, Defenses and
Affirmative Defenses to Formal Complaint, File No. EB-11-MD-008 (filed
Sept. 29, 2011) (Answer); UTEX Communications Corp. d/b/a FeatureGroup
IP's Legal Analysis in Support of Answer, File No. EB-11-MD-008 (filed
Sept. 29, 2011) (Answer Legal Analysis), to which AT&T filed a reply, AT&T
Texas's Reply to UTEX's Answer and Legal Analysis, File No. EB-11-MD-008
(filed Oct. 11, 2011) (Reply). The parties also filed, inter alia, joint
statements and briefs, see Joint Statement of Stipulated Facts, Disputed
Facts, and Key Legal Issues, File No. EB-11-MD-008 (Oct. 18, 2011)
(Stipulated Facts); Response to Supplemental Request 2 Regarding the
Arbitration Review Court Proceeding and the Court Collection Action, File
No. EB-11-MD-008 (filed Oct. 18, 2011) (Court Proceedings Summary);
Supplemental Joint Statement and Stipulated Facts, File No. EB-11-MD-008
(filed Nov. 3, 2011) (Supplemental Stipulated Facts); Joint Statement,
File No. EB-11-MD-008 (filed Dec. 9, 2011) (Joint Statement); AT&T Texas's
Supplemental Brief, File No. EB-11-MD-008 (filed Nov. 3, 2011) (AT&T
Brief); Brief of UTEX Communications Corp. d/b/a FeatureGroup IP, File No.
EB-11-MD-008 (filed Nov. 3, 2011) (FeatureGroup IP Brief); AT&T Texas's
Supplemental Reply Brief, File No. EB-11-MD-008 (filed Nov. 10, 2011)
(AT&T Reply Brief); Reply Brief of UTEX Communications Corp. d/b/a
FeatureGroup IP, File No. EB-11-MD-008 (filed Nov. 10, 2011) (FeatureGroup
IP Reply Brief).
47 U.S.C. S: 201(b) (requiring that charges, practices, classifications,
and regulations in connection with a common carrier's provision of
interstate communications service be "just and reasonable").
47 C.F.R. S: 61.26.
See, e.g., Stipulated Facts at 2, para. 3; Complaint at 3, para. 7;
Complaint Legal Analysis at 1, para. 1; Answer at 6-7, para. 7.
See, e.g., Stipulated Facts at 6, para. 17; Complaint at 3, para. 8;
Complaint Exhibit G, Interconnection Agreement-Texas between Southwestern
Bell Telephone Company and UTEX Communications Corp. at 17; Answer at 7,
para. 8; Answer Legal Analysis at 14.
47 U.S.C. S:S: 251, 252. See, e.g., Stipulated Facts at 6, para. 17;
Complaint at Ex. G.
See, e.g., Complaint Exhibit G, Interconnection Agreement-Texas between
Southwestern Bell Telephone Company and UTEX Communications Corp. at 378,
S: 2.1.1.
See, e.g., Supplemental Stipulated Facts at 6-7; Stipulated Facts at 2-4.
See, e.g., Supplemental Stipulated Facts at 7-8; Stipulated Facts at 2-4.
The parties identify a caveat to the facts stated in paragraph 3 above,
but that caveat is not relevant here. Supplemental Stipulated Facts at
4-7.
See, e.g., Supplemental Stipulated Facts at 7-8; Stipulated Facts at 2-6.
See, e.g., Supplemental Stipulated Facts at 8; Stipulated Facts at 2-6.
See, e.g., Complaint, Exhibits B and C. We recognize that the tariff at
issue concerns services other than SLTS. Nonetheless, for convenience and
purposes of this case only, we refer to it as the "SLTS Tariff." See
generally Answer Legal Analysis at 3 (referring to the tariff at issue as
"the SLTS Tariff").
See, e.g., Stipulated Facts at 4-6.
See, e.g., Stipulated Facts at 5-6. FeatureGroup IP has now billed AT&T
Texas at least $22,255,725 in SLTS charges and late payment penalties. Id.
FeatureGroup IP's claim was actually a counterclaim filed in response to a
prior claim filed by AT&T Texas for recovery of certain local number
portability charges and access charges. See, e.g., Complaint at 11, para.
31; Answer at 13, para. 31; Response to Supplemental Request 2 at 1-3.
See, e.g., Complaint at 12, para. 33; Answer at 13, para. 33.
See Court Proceedings Summary, Exhibit 10.
See, e.g., Complaint at 12, para. 34; Answer at 13-14, para. 34; Court
Proceedings Summary, Exhibit 11, Response to Supplemental Request 2. For
convenience, we refer to the federal district court proceeding from which
the primary jurisdiction referral order arose as the "Court Collection
Action."
See, e.g., Stipulated Facts at 6-8.
See, e.g., Stipulated Facts at 6-8.
An arbitrator appointed by the Texas PUC issued a decision on June 1,
2009. See Complaint Exhibit H, Petition of UTEX Communications Corporation
for Post-Interconnection Dispute Resolution With AT&T Texas and Petition
of AT&T Texas for Post-Interconnection Dispute Resolution with UTEX
Communications Corporation, Arbitration Award, Docket No. 33323 (PUCT June
1, 2009) (Arbitration Award). The Texas PUC entered its Order on
Arbitration Award on October 2, 2009, which in pertinent part affirmed the
Arbitration Award. See Complaint Exhibit I, Petition of UTEX
Communications Corporation for Post-Interconnection Dispute Resolution
With AT&T Texas and Petition of AT&T Texas for Post-Interconnection
Dispute Resolution with UTEX Communications Corporation, Order on
Arbitration Award, Docket No. 33323 (PUCT Oct. 2, 2009). The Texas PUC
entered its Order on Reconsideration of Arbitration Award on February 12,
2010, which left the pertinent part of the Arbitration Award intact. See
Complaint Exhibit J, Petition of UTEX Communications Corporation for
Post-Interconnection Dispute Resolution With AT&T Texas and Petition of
AT&T Texas for Post-Interconnection Dispute Resolution with UTEX
Communications Corporation, Order on Reconsideration of Arbitration Award,
Docket No. 33323 (PUCT Feb. 12, 2010). Consequently, unless otherwise
stated, all references herein to the Texas PUC's action will be to the
June 1, 2009 Arbitration Award.
See, e.g., Stipulated Facts at 8 (citing 47 U.S.C. 252(e)(6)). For
convenience, we refer to the federal district court proceeding in which
FeatureGroup IP seeks review of the Texas PUC's Arbitration Award as the
"Court Arbitration Review Action."
See, e.g., Complaint. AT&T Texas simultaneously filed an informal
complaint against FeatureGroup IP under section 208 of the Act and rules
1.716-1.719, 47 C.F.R. S:S: 1.716-1.719. The informal complaint challenges
the lawfulness of the SLTS Tariff on several grounds not alleged in the
formal Complaint, including that (i) SLTS is an "enhanced service" not
eligible for inclusion in a Title II tariff; (ii) the SLTS Tariff violates
47 C.F.R. S: 64.1601(c)(2) by charging connecting carriers for the
delivery of calling party number parameters; (iii) the SLTS Tariff
violates section 201(b) of the Act by "deeming" AT&T Texas to have ordered
SLTS; and (iv) the SLTS Tariff violates section 201(b) of the Act by
charging unreasonably high rates for SLTS. Informal Complaint of AT&T
Texas, Letter from Aaron M. Panner, Counsel for AT&T Texas, to Marlene H.
Dortch, Secretary, FCC (filed Sept. 9, 2011). The informal complaint
proceeding has been stayed pending a final order in this formal complaint
proceeding. Notice of Formal Complaint, File No. EB-11-MD-008 (rel. Sept.
14, 2010) at 5.
See, e.g., Complaint at 14-17, paras. 41-48.
See, e.g., Complaint at 17-19, paras. 49-56.
We note that, in addressing the merits of Count I, this Order does not
evaluate the accuracy or lawfulness of the Arbitration Award's
interpretation of the parties' Interconnection Agreement. We are merely
applying the Arbitration Award's conclusions to the relevant questions
raised by the primary jurisdiction referral and resulting complaint. Thus,
this proceeding does not usurp the function assigned by section 252(e)(6)
of the Act to federal district courts, nor otherwise allow parties to seek
review at this Commission of state commission decisions interpreting
interconnection agreements, in contravention of section 252(e)(6). 47
U.S.C. S: 252(e)(6). See, e.g., In the Matter of Starpower Communications,
LLC Petition For Preemption of Jurisdiction of the Virginia State
Corporation Commission Pursuant to Section 252(e)(5) of the
Telecommunications Act Of 1996, Memorandum Opinion and Order,15 FCC Rcd.
11277, 11279-80, para. 6 (2000); Budget Prepay, Inc. v. AT&T Corp., 605
F.3d 273, 276 (5th Cir. 2010); Southwestern Bell Telephone Co. v. Public
Utility Commission of Texas, 208 F.3d 475, 479-82 (5th Cir. 2000).
Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956);
United Gas Pipe Line Co. v. Mobile Gas Service Co., 350 U.S. 332 (1956).
Richmond Power and Light of the City of Richmond, Indiana v. Federal Power
Commission, 481 F.2d 490, 493 (D.C. Cir. 1973) (Richmond Power v. FPC).
Complaint at 1-2; 15-16; Complaint Legal Analysis at 9-10; Answer at 1-2,
17-18; Answer Legal Analysis at 4-8. See, e.g., MCI Telecommunications
Corp. v. FCC, 822 F.2d 80, 84, 87 (D.C. Cir. 1987); MCI Telecommunications
Corp. v. FCC, 665 F.2d 1300, 1302 (D.C. Cir. 1981); Richmond Power v. FPC,
481 F.2d at 492-93, 497; Bell Atlantic-Delaware, Inc. v. Global NAPs,
Inc., Memorandum Opinion and Order, 15 FCC Rcd 20665, 20670-73,
paras.12-21 (2000), aff'd on recon., 17 FCC Rcd 7902 (2002), aff'd on
other grounds sub nom., Global NAPs v. FCC, 80 Fed. Appx. 114 (D.C. Cir.
2003); ACC Long Distance Corp. v. Yankee Microwave, Inc., Memorandum
Opinion and Order, 10 FCC Rcd 654, 656-59, paras. 15-28 (1995). See also
Reform of Access Charges Imposed by Competitive Local Exchange Carriers,
Seventh Report and Order and Further Notice of Proposed Rulemaking, 16 FCC
Rcd 9923, 9947, para. 57, n.130 (2001) (subsequent history omitted).
See, e.g., Complaint Legal Analysis at 9-10; Answer Legal Analysis at 4-8.
For our purposes, "UTEX" in the Arbitration Award is the same party as
"FeatureGroup IP" in this Order. See Joint Statement at 1.
Arbitration Award at 28.
Arbitration Award at 28.
Arbitration Award at 28.
Arbitration Award at 28.
Arbitration Award at 28.
Arbitration Award at 29.
Arbitration Award at 29.
Arbitration Award at 29.
Arbitration Award at 29-30.
Our decision here is based on the Arbitration Award's interpretation of
the Interconnection Agreement between FeatureGroup IP and AT&T Texas, and
does not prejudge any issues pending before the Commission in rulemaking
proceedings. See, e.g., In the Matter of Connect America Fund, A National
Broadband Plan for Our Future, Establishing Just and Reasonable Rates for
Local Exchange Carriers, High-Cost Universal Service Support, Developing
an Unified Intercarrier Compensation Regime, Federal-State Joint Board on
Universal Service, Lifeline and Link-Up, Universal Service Reform -
Mobility Fund, 2011 WL 5844975, **358-59, paras. 1361-64 (rel. Nov. 18,
2011) (seeking comment on whether to require that "carriers electing TDM
interconnection be responsible for the costs associated with the IP-TDM
conversion").
Arbitration Award at 30.
Richmond Power v. FPC, 481 F.2d at 493. See paras. 10-11 above.
See, e.g., Answer Legal Analysis at 4-8.
See, e.g., Answer Legal Analysis at 8-10.
Arbitration Award at 29 (stating that "UTEX argues for equivalent
treatment, but the terms of the ICA do not support UTEX's position....").
See, e.g., Answer Legal Analysis at 4-8.
Arbitration Award at 128-29 (consolidating the following three questions:
"Should the [Texas] Commission declare that the ICA does not control the
issue of whether UTEX may bill AT&T Texas for Signaling Layer Translation
Service? Should the [Texas] Commission declare that the ICA does not
operate to prevent an award and finding in the appropriate venue that AT&T
Texas must pay UTEX's past due bills for Signaling Layer Translation
Service? Should the [Texas] Commission declare that AT&T Texas is
responsible for payment of future invoices for so long as it receives
Signaling Layer Translation Service?")
Arbitration Award at 128.
Arbitration Award at 128-29.
Arbitration Award at 129.
We note that, under well-established precedent, the filed tariff doctrine
does not preclude a Commission determination in a section 208 complaint
proceeding that a tariffed rate has been and is unlawful and
unenforceable. See, e.g., AT&T Corp. v. Business Telecom, Inc., Memorandum
Opinion and Order, 16 FCC Rcd 12312, 12317-18, para. 9 (2001).
See, e.g., Answer at 4, 19-21; Answer Legal Analysis at 25-29. According
to FeatureGroup IP, AT&T Texas has breached the parties' Interconnection
Agreement by (i) refusing to route calls addressed to FeatureGroup IP's
500 numbers, and (ii) refusing to route calls addressed to other carrier
networks that choose to use FeatureGroup IP as a transit provider. Id.
See, e.g., Sprint Communications Co., L.P. v. Northern Valley
Communications, LLC, Memorandum Opinion and Order, 26 FCC Rcd 10780,
10789-90 (2011) (and cases cited therein).
See, e.g., AT&T Corp. v. YMax Communications Corp., 26 FCC Rcd 5742, 5761,
para. 53 (2011) (dismissing certain counts without prejudice because
granting certain other counts already afforded AT&T all of the relief to
which it could be entitled). In its Complaint, AT&T Texas purported to
seek a "declar[ation] that any claim by [FeatureGroup IP] for compensation
under quantum meruit, quasi-contract, constructive contract, or any other
theory is preempted by the Communications Act." Complaint at 19. AT&T
Texas provided no facts or legal analysis to support that request,
however, so we need not and do not consider it. See, e.g., 47 C.F.R. S:S:
1.720(a), (c), (d); 1.721(a)(5)-(6), 1.726(c).
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Federal Communications Commission FCC 12-19
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Federal Communications Commission FCC 12-19