FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,758
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42. Recognizing that the terms of its Tariff, if construed according to their standard meaning,
would not authorize End Office Switching charges, YMax urges us to apply novel definitions. YMax
argues that "virtual" facilities, as well as physical facilities, can qualify as "terminations" of "End User
station loops" and "end user lines" under the Tariff. Specifically, YMax asserts that Called/Calling
Parties establish a "virtual connection" to the equipment that YMax has collocated at AT&T and
[Redacted confidential information regarding YMax's network configuration] offices through the "virtual
channel" that is created "by the exchange of streanis of IP packets transmitted over the Internet."'2'
According to YMax, this "virtual channel" or "virtual loop" serves the same function as a legacy fixed
loop, in that it provides a direct connection between a Called/Calling Party's premises and the Public
Switched Telephone Network ("PSTN").122
43. We reject YMax's argument that its purported "virtual channels" qualify as
"terminations" of "station loops" and "end user lines" under the Tariff. First, nothing in the language of
the Tariff authorizes charges for "virtual" services or facilities.'" The commonly understood meanings of
the terms "termination," "station loop" and "end user line" do not include the type of non-physical,
"virtual connection"'24 described by YMax. Indeed, YMax's own CEO testified that he did not know
what a "virtual connection" is, even though YMax's expert used that term in describing YMax's
relationship with Calling Parties.'"2
44. In essence, YMax contends that the entire worldwide Internet - from a Called/Calling
Party's premises through the network of the Called/Calling Party's ISP, through the networks of other
ISPs, up to and including the connection YMax purchases from its own ISPs (i.e., AT&T or [Redacted
confidential information regarding YMax's network configuration]), comprises a "virtual" loop that
terminates at the equipment it collocates at AT&T or [Redacted confidential information regarding
YMax's network configuration] offices.'26 Under this interpretation, the "virtual loops" YMax claims to
provide would be of indeterminate length and configuration. They could extend thousands of miles via
numerous intermediaries throughout the country (or even the world), or only a few miles via a couple of
intermediaries in contiguous states."27 This cannot be what the Tariff means by "termination" of"End
'2 Answer Legal Analysis at 42; see also Answer at 21-22, 66; YMax Initial Brief at 13; YMax Reply Brief at 12-
14; 25. [Redacted confidential infonnation regarding YMax's network configuration]. See, e.g.. YMax Initial Brief
at 20 n.95. AT&T has presented substantial evidence that, although YMax's equipment may have traditional
switching capabilities, these capabilities are not actually used with respect to the traffic at issue. See, e.g., Reply
Legal Analysis at 39. We need not (and do not) decide here whether any of YMax's collocated equipment qualifies
as a switch under the Tariff.
122 See, e.g., Pavol Decl. at 11, 36. See also id. at 10, 32: Answer Legal Analysis at 42; YMax Initial Brief at 13;
YMax Reply Brief at I1-12, 14, 21.
23 YMax undermines its position by citing to a provision in another carrier's Statement of Generally Available
Terms and Conditions of Interconnection ("SOAT') that explicitly refers to "Virtual Transport" and "virtual Loop
transport." See YMax Reply Brief at 12 n.37 and Ex. 26. The cited provision illustrates that when a carrier intends
to describe a "virtual" service or facility, it does so in express terms.
24 See Pavol Decl. at 7, 26; 10, 1 32.
125 Borislow Dep. at 172-74. See Pavol Decl. at 7, 26.
126 See, e.g., Pavol Dep. at 72-73 ([Redacted confidential information regarding YMax's network configuration]).
127 See, e.g., Borislow Dep. at 88 ("A. ... personally I could be in France and be on AOL, and it would go through a
proxy in - in - in the United States ... Q. But if someone wanted to, they could go to Best Buy or Radio Shack, buy a
Magic Jack, and then take it to France and use it, couldn't they? A. Yes. Q. Okay. And they could use a U.S. NPA-
NXX when they made calls from France, couldn't they? A. That's correct."):; Id. at 90-91 ([Redacted confidential
information regarding YMax's network configurationl; see also Calabro Dep. at 56 ("Q... .the called party could
be located in, say, Australia? A. Why not? ... I don't know that they could get it on the moon, but ifthey were, we
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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/m1/930/: accessed September 23, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.