FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,747
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network configuration.]39 [Redacted confidential information regarding YMax's network
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.
I1. 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.42 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.43 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.4 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.45 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).46
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YMax's failure to expressly acknowledge such falsity until AT&T deposed YMax's witnesses. Compare Answer
Legal Analysis at I n.l ("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, 17 ("The path followed
by an originating call is exactly the same, but in the opposite direction"): Calabro Decl. at 10, 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.
39 [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).
'O 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.
42 Complaint at 26-30, f 63-74.
4 Id. at 30-36, 75-94.
44 Id. at 36-39, 95-110.
5 Id. at 45-48, 139-52.
6 d. at 48-49, 153-55.
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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/m1/919/: accessed April 29, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.