FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,748
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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 Commission47 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."4"" 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.49
Consistent with these statutory provisions, a carrier may lawfully assess tariffed charges only for those
services specifically described in its applicable tariff.50
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.5' 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.52
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.53 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
47 See, e.g., Joint Statement at 3, 9; Answer Legal Analysis at 40-41.
4 47 U.S.C. 203(a).
49 47 U.S.C. 203(c).
50 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 Conmmc 'ns hic., 2005
WL 2145499, at *3 (E.D. Va. 2005) (citing Bryan v. Bellsouth Commc 'ns., Inc., 377 F.3d 424, 429 (4" 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, 21-26
(2009) ("Farmers llr'), 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).
5' See, e.g., Complaint at 33-34, 82-85; Complaint Legal Analysis at 24-26; Reply Legal Analysis at 9-19.
3 See, e.g, Complaint at 33-34, 82-85; Complaint Legal Analysis at 24-27; Reply Legal Analysis at 19-28.
5 See, e.g., Complaint at 30-33, 77-81; Complaint Legal Analysis at 19-21; Reply Legal Analysis at 19-20.
4 Reply Legal Analysis at 27-29. See Complaint at 32, 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 11 and
IV based on other terms of the Tariff, we need not address that argument here.
Federal Communications Commission
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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/m1/920/: accessed September 22, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.