FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,753
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Switched Access Service under the Tariff, YMax urges, has no bearing on whether the Called/Calling
Parties (and AT&T customers) "'use" the Service.91
27. The Tariff does not define "use." Consequently, we must construe the term "use" in
accordance with its common meaning in the industry.2 Applying such a common meaning, we find that
no person or entity other than an IXC can "use" YMax's Switched Access Service, as described in Tariff
section 3. It is widely understood that switched access is a wholesale service provided to IXCs, paid for
by them, and used by them as an input to the end-to-end long distance service they provide to their 1+ and
8YY customers. Thus, only IXCs - not Called/Calling Parties - "use" "Switched Access Service."
28. Several provisions of the Tariff confirm, and even compel, this conclusion. The
definition of"Switched Access Service" states that the Service is "available to Customers [i.e., IXCs] for
their use in furnishing their services to End Users."93 This language establishes that IXCs, not the
Called/Calling Parties, are the "users" of Switched Access Services under the Tariff. Moreover, the Tariff
also states that Switched Access "provides line-side or trunk-side access to End Office switches for the
Customer's [i.e., IXC's] use in originating and terminating communications."94 Indeed, even the
language of the End User definition underscores that it is the "interexchange carrier who ... utilizes the
... Switched ... Access services described in this tariff"- not the Called/Calling Parties." And even if
Called/Calling Parties could be said, in some generic sense, to "use" switched access service when calls
are placed by or to them, they do not do so under the "terms and conditions of the tariff," because there
are no tariff provisions applicable to an End User's "use" of carrier access services.
29. YMax's argument that the Called/Calling Parties "use" switched access services under
the terms and conditions of section 3 of the Tariff is also contradicted by other statements YMax has
made in the record. YMax's expert, for example, testified that switched access is a service that "allows
IXCs to use YMax's common terminating, switching and trunking facilities."9 Similarly, YMax has
asserted that, when it originates 8YY toll-free calling, "this is a service to interexchange carriers, not as a
service provided to its end users."97
30. YMax's second belated argument fares no better. Relying on the second sentence of the
End User definition in the Tariff, YMax argues that, in addition to the Called/Calling Parties, the term
"End Users" includes the AT&T long distance customers that make calls to Called Parties, or receive
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telephone calls between two people.").
9 See, e.g., YMax Initial Brief at 3-4; YMax Reply Brief at 8-9. YMax did not make this argument in its Answer.
92 See, e.g., Atchison, Topeka & Santa Fe Ry. Co. v. United States, 181 Ct. Cl. 315, 322 (Ct. Cl. 1967); BellSouth
Telecomms., Inc. v. Kerrigan, 55 F. Supp.2d 1314, 1324 (N.D. Fla. 1999); Quaker State Oil Refining Corp. v.
United States, 465 F. Supp. 75, 79 (W.D. Pa. 1979); UnitedArtists Payphone Corp. v. New York Tel. Co., and
AT&T, Co., 8 FCC Rcd 5563, 5565, 9 (1993). Courts have recognized that the Commission has special expertise
in reviewing and interpreting tariffs. See, e.g., Allnet Commc ns Serv. Inc. v. National Exchange Carrier Assoc.,
965 F.2d 1118, 1120 (D.C. Cir. 1992): Htalprin, Temple, Goodman & Sugrue v. MCI, Order on Reconsideration, 14
FCC Rcd 21092, 21100, 19 (1999).
93 Tariff 3.1.1, Original Page No. 45 (emphases added).
4 Tariff 3.2.4, Original Page No. 46 (emphasis added).
" Tarifft 1, Original Page No. 10 (emphasis added).
9 Calabro Decl. at 4-5,1 10 (emphasis added). Mr. Calabro further testified that "[w]hen AT&T delivered calls to
YMax for completion to YMax's end users, .4 T& T indeed made use of YMax 's common terminating, switching and
trunking facilities and it was for use of these facilities that AT&I' was assessed switched access charges by YMax."
Id. (emphasis added).
9* Supp. Answer at 3.
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/m1/925/: accessed July 22, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.