FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,745
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Federal Communications Commission
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.22 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.23 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."24
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).25 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;26 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.27
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.28 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.29 The access tandem provider to which AT&T has
(Continued from previous page)
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 I 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. 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 sothvare product to make and receive calls.
2 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. 19. The current TOS Agreement is available at http://www.magicjack.com/tos/.
Joint Statement at 4, 17.
23 TOS Agreement at 2, 1; Joint Statement at 4-5, 25.
4 'TOS Agreement at 1, 21.
2s Joint Statement at 2, 5, 34, 7, 47. For purposes of this Order, we use the term "'calls at issue" to refer to these
two types of calls.
26 Joint Statement at 2.
27 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.
a See, e.g., Calabro Decl. at 8-9, 18; Pavol Decl. at 5, 7; Borislow Dep. at 62, 66-67.
* See, e.g., Calabro Decl. at 8; 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-
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United States. Federal Communications Commission. FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011, book, April 2011; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc52169/m1/917/: accessed November 20, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.