FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,751
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Called/Calling Parties must separately obtain service and facilities from a third-party ISP in order to place
or receive calls." YMax acknowledges that it has "never billed any Called/Calling Party the End User
Common Line charge or Federal Universal Service surcharge described in the Tariff, and that no
Called/Calling Party has ever paid YMax the tariffed charges associated with the End User Common
Line.""74 Likewise, YMax admits that it has not provided, and presently has no facilities to provide,
Called/Calling Parties the ability to presubscribe to an IXC, and does not require End Users to dial a
I01XXXX code to select an IXC for individual long distance calls.75
20. Thus, the undisputed record makes clear that no Called/Calling Party has ever used
YMax's End User Access service. This means that no Called/Calling Party has ever been an "End User"
as defined in YMax's Tariff. Accordingly, YMax has never provided a key component of Switched
Access Service as defined in the Tariff- basically, originating and terminating traffic from and to an
21. Buttressing this conclusion is the fact that Called/Calling Parties establish a business
relationship with YMax, not by ordering service under "the terms and conditions of [YMax's] tariff,"76
but instead by agreeing to the separate online TOS Agreement.77 This agreement appears on the
magicJack website and, according to YMax, is accepted by "all consumers or businesses who have
subscribed to YMax's services."s
22. The TOS Agreement purports to establish an agreement between the Called/Calling Party
and YMax and its affiliates, MagicJack, L.P. and VocalTec Communications, LTD. ("VocalTec")," and
states that it is the "entire agreement between you [the Called/Calling Party] and magicJack and YMax
and VocalTec" and it "trumps any prior agreement.'"a Unlike the Tariff, the TOS Agreement does not
require YMax to provide a common line or "local loop" to any user.81 Instead, it states that the
Called/Calling Party must obtain local connections at their own cost from a third-party.82 Rather than
requiring payment of a monthly End User Common Line Charge or Federal Universal Service surcharges,
as specified in the Tariff, the TOS Agreement promises users "free" calling. Further, the TOS
Agreement, unlike the Tariff, does not allow users to pre-subscribe to an IXC or require them to pay a
(Continued from previous page)
153-55; Appendix B at 2.
73 See, e.g., Pavol Dep. at 113; YMax Answers to Interrogatories at 5 (Response to AT&T First Set of
Interrogatories No. 1); Calabro Decl. at 18; Borislow Decl. at 4; TOS Agreement at 2, 1; Joint Statement at 4-5, 1
74 See, e.g., Joint Statement at 5, 32; 6, 43; Answer at 26, 84; Supp. Answer at 2; Answer Legal Analysis at 49;
YMax Answers to Interrogatories at 14 (Response to AT&T First Set of Interrogatories No. 7); YMax Initial Brief at
8-9; Pavol Decl. at 13-14, 43; Pavol Dep. at 118, 127-30, 150; Appendix B at 3.
75 See, e.g., YMax Answers to Interrogatories at 15 (Response to AT&T First Set of Interrogatories No. 7); YMax
Initial Brief at 8-9; Borislow Dep. at 185-90; Pavol Dep. at 117.
76 Tariff 1. Original Page No. 10 (emphasis added). See YMax Reply Brief at 7.
77 See TOS Agreement; Joint Statement at 4, 19.
n YMax's Answers to Interrogatories at 14 (Response to AT&T First Set of Interrogatories No. 7). See Supp.
Answer at 1-2.
79 TOS Agreement at 1. YMax and MagicJack, L.P. are owned by YMax Corporation, which is owned by VocalTec
Communications Ltd. See Borislow Dep. at 9-10; VocalTec Communications Ltd. SEC Form 6-K (July 2010), at
Complaint, Ex. 10.
o TOS Agreement at 11, 21.
a' Cf Tariff 5.1.1, Original Page No. 81.
n See TOS Agreement at 2, I. See also Pavol Decl. at 8, 28.
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/m1/923/: accessed July 21, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.