FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,752
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non-recurring charge to change a presubscription.
23. These undisputed facts about the TOS Agreement further establish that the Called/Calling
Parties are not End Users under the Tariff: they do not "use" any service "under the terms and conditions
of this tariff," but rather use a completely different service under an entirely separate TOS Agreement.3
Given that Switched Access Service, as described in the Tariff, must involve traffic to and from End
Users, and YMax has no End Users as defined in the Tariff, YMax has not provided AT&T with such
Switched Access Services and cannot lawfully bill AT&T for those services."
24. Additional support for this conclusion is found in Commission precedent, including the
recent Farmers decision," which construed similar tariff language. In Farmers, the Commission barred a
LEC from assessing switched access charges for calls to conference calling companies who were not "end
users" under the LEC's tariff. The Commission held that the conference calling companies did not
qualify as "end users" because they did not take service pursuant to the terms and conditions of the tariff,
but rather under separate agreements with the LEC.86 Here, as in Farmers, the Called/Calling Parties take
service under a separate agreement - the TOS Agreement - and not "under the terms and conditions of
[the] tariff." Accordingly, YMax, like the LEC in Farmers, may not assess Switched Access charges
under its Tariff for calls to or from Called/Calling Parties."7
25. YMax makes two principal arguments, raised late in this proceeding, in an attempt to
show that it has End Users under the Tariff. For the following reasons, both lack merit.
26. First, conceding that there are no persons or entities that use End User Access services
under section 5 of YMax's Tariff,88 YMax instead focuses on the Switched Access Services provided in
section 3.89 YMax maintains that the Called/Calling Parties are all "End Users," because they "use"
Switched Access Service under section 3 of the Tariff whenever AT&T also uses such Service to transmit
a call to or from a Called/Calling Party." The fact that only AT&T is responsible for paying for the
"3 Tariff 1, Original Page No. 10 (emphasis added).
4 See note 50 supra.
s .See id.
' Farmers III, 24 FCC Red at 14812-13, I 24-26; Id at 14812, 25 (finding "the evidence of the parties' actual
course of dealing demonstrates that there was no purchase of tariffed services").
7 YMax's attempt to distinguish the Farmers holding based on differences between YMax's Tariff language and
that at issue in Farmers is unavailing. See Answer Legal Analysis at 49. YMax points out that the tariff in Farmers
defined "end user" as a "customer" that "'subscribe[s] to the services offered under [the] tariff," whereas YMax's
Tariff defines "'End User" as an entity that "uses the service of [YMax] under the terms and conditions of this tariff."
YMax Reply Brief at 8-9 (internal quotations omitted). YMax argues that the Called/Calling Parties qualify as End
Users under its Tariff because they "were in fact using the service of YMax" when they received calls from AT&T
customers. Answer Legal Analysis at 49. We disagree. The YMax Tariff does not define an "End User" as anyone
who merely "'uses" any YMax service. Rather, the Tariff language limits "End Users" to those entities that use
YMax's service "under the terms and conditions of this tariff." As shown above, the Calling/Calling Parties take
service under the separate TOS Agreement - not under the terms and conditions of the Tariff. Nor are we
persuaded by YMax's attempt to distinguish Farmers on several other grounds, none of which undermines the well-
established rule, affirmed in Farmers, that a common carrier may only assess charges for services specifically
described in its tariff. See Answer Legal Analysis at 47-49.
88 See, e.g., Pavol Dep. at 118; Borislow Dep. at 205-08; YMax Initial Brief at 8-9.
9 See, e.g., YMax Initial Brief at 2, 7-8; YMax Reply Brief at 9, 12, 1 9-20.
* See, e.g., YMax Initial Brief at 2-4; YMax Reply Brief at 7 ("Thus, End Users includes both YMax users and
AT&T users because each use the switched access services that YMax provides under the Tariff in order to have
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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/m1/924/: accessed May 22, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.