FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,754
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8YY calls from Calling Parties9 This argument fails for at least two reasons.
31. First, it is inconsistent with the Tariff language. The second sentence of the End User
definition states that "[i]n most contexts, the End User is the customer of an interexchange carrier who in
turn utilizes [YMax's] Switched or Dedicated Access services described in this tariff to provide the End
User with access to the [IXC's] communication and switching systems.""99 This sentence describes the
typical situation where a LEC's local customer connects to an IXC's network via presubscription, or by
dialing an access code, and thereby obtains the originating access necessary to make a long distance call.
AT&T's long distance customers do not satisfy the second sentence of the End User definition because,
although each is the "customer of an interexchange carrier" - i.e., AT&T - AT&T does not "utilize"
YMax's access services to provide these customers with access to AT&T's network.' Instead, such
access is provided by the AT&T customer's local service provider, which, as discussed above, is never
32. Second, even if YMax could show that AT&T long distance customers satisfy the second
sentence of the End User definition, this would not advance YMax's position because it cannot show that
such AT&T customers satisfy the first sentence of the End User definition.'02 That is, YMax cannot show
that AT&T long distance customers "use" any YMax service "under the terms and conditions" of the
Tariff. As shown above, they do not use End User Access services under section 5 because YMax
provides these services to no one, and they do not use the Switched Access Services under section 3
because these wholesale services are used only by IXCs.03
33. Finally, even if YMax's arguments regarding the construction of"End User" in the Tariff
were plausible - and they are not - YMax's arguments would, at best, show only that the meaning of
9s See, e.g., YMax Initial Brief at 2-4; YMax Reply Brief at 7. YMax did not make this argument in its Answer.
YMax Initial Brief at ii, 3.4. In its Answer and supporting materials, YMax characterized only Called/Calling
Parties as "end users," and did not refer to AT&T customers that way. See, e.g., Answer at 26, 85 ("YMax end
users obtain access to the public switched telephone network from YMax pursuant to the terms of the Tariff'');
Calabro Decl. at 4, 9 ("At issue in this complaint proceeding are two specific types of calls: the first being 1+ long
distance calls placed by an AT&T long distance customer to a YMax end user; and the second being l+8YY toll
free calls placed by YMax end users to AT&T served toll free customers."); Id. at 4-5. 10 ("Switched access
allows the IXC to receive interexchange calls that are originated by YMax's end users and allows the IXC to
terminate calls to YMax's end users.").
* Tariff I. Original Page No. 10.
'0D See, e.g., Borislow Dep. at 62 ([Redacted confidential information regarding YMax's network configuration]).
Likewise, on 8YY calls, the AT&T toll-free customer does not obtain its connection to AT&T's network from
'' See note 11 supra. Notably, the Called/Calling Parties cannot satisfy the second sentence of the End User
definition, either. Because they do not obtain End User Access under the Tariff, Called/Calling Parties cannot
become "customers of an IXC," either by presubscription, or by dialing an access code, as described in section 5.1.2
of YMax's Tariff.
102 Tariff I, Original Page No. 10 (defining "End User," in relevant part, as "[a]ny person, firm, partnership,
corporation or other entity that uses the service of the Company under the terms and conditions of this tariff").
103 We note that, under YMax's interpretation, it would always have an End User (and thus an "End User Premises")
on both ends of any long-distance call, and thus the Tariff would entitle it to charge both originating and terminating
access simultaneously on every call. Nor would YMax's interpretation be limited to the endpoints of a call: every
entity in the chain of a call, including the originating access provider, the tandem providers, and the ISPs directly
connected to the final destination of the call, would also be "End Users," because all of those entities "use" YMax's
service in conjunction with their ow~n services to complete a call. This provides further confirmation that YMax's
proffered interpretation of its Tariff makes no sense.
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/m1/926/: accessed March 18, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.