FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,750

                                
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.63 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,65 and a Federal Universal Service Fee.66 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.67 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.69
19.    YMax concedes that it has never provided End Uset Access service for any End User's
"use" within the meaning of section 5 of its Tariff.70 YMax also admits that it provides no "local loops"
or any other facilities that physically connect to the premises of a Called/Calling Party,71 and that it
[Redacted confidential information regarding YMax's network configuration].72 Instead, the
(Continued from previous page)
 1, Original Page No. 10.
63 See, e.g., AT&T Initial Brief at Ex. 36, NECA Tariff F.C.C. No. 5,  2.6, Ist Rev. Page 2-68.
4 Tariff  5.1.1, Original Page No. 81. Under the general heading, End User Access,  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."
65 Id
'( Tariff  5.2, Original Page No. 83. Tariff  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  1, Original
Page No. 9, the uncapitalized term "customers," as used in the context of  5.2, clearly refers to End Users. See,
e.g., Complaint at 33-34,   84; Answer at 26,   84; YMax Answers to Interrogatories at 14 (Response to AT&T First
Set of Interrogatories No. 7).
67 Tariff  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.").
6S Tariff  5.1.2, Original Page No. 81.
69 Tariff  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  5.5, Original Page No. 87.
70 See, e.g., Answer at 26,   84; Supp. Answer at 2; Joint Statement at 5,   32; YMax Initial Brief at 8 (citing
Borislow Dep. at 153-54; 186-88; 193-94 and Pavol Dep. at 117).
71 See, e.g.. Pavol Dep. at 112-13; YMax Initial Brief at 11-12: TOS Agreement at 2, I1; YMax Answers to
Interrogatories at 17 (Response to AT&T Second Set of interrogatories No. 3); Borislow Decl. at 4; Appendix B at
2.
72 YMax Answer to Interrogatories at 17 (Response to AT&T Second Set of Interrogatories No. 3); Borislow Dep. at
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Federal Communications Commission

FCC 11-59