FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,755
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the term, "End User" is ambiguous. It is well-established, however, that any ambiguity in a tariff is
construed against the party who filed the tariff, in this case YMax.'04
34. To summarize, YMax may assess Switched Access Service charges on AT&T pursuant
to its Tariff only ifYMax provided Switched Access Services to AT&T as described in the Tariff.
YMax's Tariff describes Switched Access Service as a service involving originating and terminating calls
to an "End User." An "End User," in turn, is defined as a person or entity who "uses" a YMax service
"under the terms and conditions of [its] tariff." No such End User exists here because: (i) no
Called/Calling Party uses YMax's End User Access service under section 5 of the Tariff, and (ii) no
Called/Calling Party uses Switched Access Service under section 3 of the Tariff, because under the terms
of the Tariff, Switched Access Service is available only to IXCs, not to any Called/Calling Party. Thus,
YMax did not provide Switched Access Service to AT&T within the meaning of the Tariff because YMax
did not originate calls from, or terminate calls to, an End User. YMax's charges to AT&T for such
Service therefore violate sections 203(c) and 201(b) of the Act.os Accordingly, we grant Counts III and
IV of AT&T's Complaint.'06
2. YMax Does Not Provide "End Office Switching" Or "Transport" Services
Within The Meaning Of Its Tariff.
35. AT&T raises additional, independent grounds for challenging YMax's Switched Access
charges, apart from the absence of "End Users" under the Tariff. Specifically, AT&T argues that YMax's
charges for the End Office Switching rate element and certain Switched Transport rate elements are not
authorized by YMax's Tariff. We agree, for the reasons set forth below.
a. End Office Switching
36. In determining whether YMax has lawfully billed AT&T for End Office Switching under
its Tariff, we begin, as before, with an examination of the Tariff language. As discussed below, we find
that YMax does not provide End Office Switching under the Tariff because it does not operate any "End
Office Switches" where "station loops" that connect to End User premises are "terminated."
37. The Tariff describes the "End Office Switching" rate category as "establish[ing] the
charges related to," among other things, "the terminations in the end office of end user lines."'0 The
'" See, e.g., Associated Press v. FCC, 452 F.2d 1290, 1299 (D.C. Cir. 1971); Farmers III, 24 FCC Red at 14810,
n.83; American Satellite Corp. v. MC Telecommunications Corp., Memorandum Opinion and Order, 57 FCC2d
1165, 1167, 6 (1976). Certain representations made by YMax to the Public Service Commission of West Virginia
further undermine YMax's defense of its originating switched access charges. In a proceeding to address YMax's
non-payment otfE911 fees, YMax averred that it does not provide any service enabling magicJack purchasers to
originate calls, and that MagicJack. L.P. does not provide any service enabling magicJack purchasers to terminate
calls. See, e.g., AT&T Initial Brief, Ex. 30 at 6 (transcript of testimony of Mark Pavol before the Public Service
Commission of West Virginia asserting that "[n]either magicJack nor YMax offers a single service that permits
users generally to receive calls that originate on the PSTN and to terminate calls to the PSTN"). We find it difficult,
if not impossible, to square YMax's representation to the Public Service Commission of West Virginia that it
provides no ability to originate calls with YMax's assertion here that it provides originating access service.
05 Specifically, we find that YMax's violation of section 203(c) of the Act constitutes an unreasonable practice that
violates section 201(b) of the Act. 47 U.S.C. 203(c), 201(b).
u6 We note that neither party has mentioned the definition of '"nd user" in section 69.2(m) of the Commission's
rules. 47 C.F.R. 69.2(m). Thus, this Order need not, and does not, address the question of whether section
69.2(m) has any bearing on the claims and defenses presented.
"7 Tariff * 3.3.2, Original Page No. 47. Section 3.3.2 provides in full: "The End Office Switching rate category
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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/m1/927/: accessed April 21, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.