**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In the Matter of )

)

AT&T Corporation, )

)

Complainant, )

)

v\. ) File No. E-97-04

)

Beehive Telephone Company, Inc. )

and Beehive Telephone, Inc. Nevada, )

)

Defendants. )

)

\- and - )

)

Beehive Telephone Company, Inc. )

and Beehive Telephone, Inc. Nevada, )

)

Complainants, )

)

v\. ) File No. E-97-14

)

AT&T Corp., )

)

Defendants. )

**MEMORANDUM OPINION AND** **ORDER**

**Adopted: June 14, 2002 Released: June 20, 2002**

By the Commission:

**I. INTRODUCTION**

1.  In this Memorandum Opinion and Order ("Order"), we resolve two
    complaint proceedings that we have consolidated for administrative
    convenience.[^1] First, we grant in part and dismiss and deny in
    part a formal complaint that AT&T Corporation ("AT&T") filed against
    Beehive Telephone Company, Inc. and Beehive Telephone, Inc. Nevada
    (collectively, "Beehive") pursuant to section 208 of the
    Communications Act of 1934, as amended ("Act" or "Communications
    Act").[^2] Second, we dismiss and deny in its entirety a formal
    complaint that Beehive filed against AT&T pursuant to section 208 of
    the Act.[^3]

2.  In its complaint, AT&T alleges that Beehive exceeded its authorized
    rate of return and engaged in various unlawful billing practices, in
    violation of sections 201(b)[^4] and 203(c)[^5] of the Act.[^6] In
    addition, AT&T alleges that an access revenue-sharing arrangement
    between Beehive and an information service provider to which Beehive
    terminated traffic breached Beehive's common carrier duties, in
    violation of section 201(b) of the Act,[^7] and constituted
    unreasonable discrimination, in violation of section 202(a) of the
    Act.[^8] We grant AT&T's claims that Beehive violated section 203(c)
    of the Act by failing to comply with various billing requirements of
    Beehive's effective tariff. We also grant AT&T's claims that Beehive
    violated section 203(c) of the Act by failing to comply with its
    tariff's requirements regarding billing access charges based upon
    call attempts, but only as to liability and not as to damages. We
    further grant AT&T's claims that Beehive exceeded its authorized
    rate of return, but only as to liability and not as to damages.
    Finally, on the basis of the facts and arguments presented in this
    record, we deny AT&T's claims regarding the access revenue-sharing
    arrangement between Beehive and the information service provider,
    because AT&T has failed to meet its burden of demonstrating that
    this arrangement violated either section 201(b) or section 202(a) of
    the Act.[^9]

3.  In its complaint, Beehive alleges conditionally that, if (and only
    if) the Commission grants AT&T's claims that Beehive's access
    revenue-sharing arrangement was unlawful, then the Commission must
    also grant Beehive's claims that certain of AT&T's billing
    arrangements with customers violated sections 201(b), 203, and 228
    (the Telephone Disclosure and Dispute Resolution Act ("TDDRA")) of
    the Act for precisely the same reasons.[^10] Beehive also alleges
    that AT&T violated sections 1.17[^11] and 1.729(b)[^12] of the
    Commission's rules by failing to disclose certain information in the
    AT&T Complaint proceeding.[^13] Because we deny AT&T's claims that
    Beehive's access revenue-sharing arrangement was unlawful, the
    condition precedent pled by Beehive has not been satisfied, and thus
    we dismiss Beehive's claims under sections 201(b), 203, and 228 of
    the Act. In addition, we deny Beehive's claims under sections 1.17
    and 1.729(b) of the Commission's rules, because Beehive has failed
    to meet its burden of demonstrating that AT&T deliberately failed to
    disclose material information in the AT&T Complaint proceeding.

**II. BACKGROUND**

4.  At all relevant times, Beehive was an incumbent local exchange
    carrier ("LEC") located in rural Utah and Nevada that served
    approximately 700 access lines.[^14] Beehive provided local exchange
    service to end user customers, and exchange access services to AT&T
    and other interexchange carriers ("IXCs").[^15]

5.  Prior to March 31, 1994, Beehive charged IXCs access rates at the
    levels contained in the interstate access tariff filed by the
    National Exchange Carrier Association ("NECA") on behalf of its
    member companies.[^16] The NECA tariff specified a rate of
    approximately \$.07 per terminating access minute.[^17] On March 31,
    1994, pursuant to section 61.39 of the Commission's rules,[^18]
    Beehive withdrew from the NECA tariff and filed its own interstate
    access tariff ("Tariff") specifying a terminating interstate access
    rate of \$.47 per minute.[^19] That Tariff became effective on July
    1, 1994.[^20] Although it contained its own access rates, Beehive's
    Tariff explicitly incorporated the non-rate regulations, terms, and
    conditions for access services set forth in NECA's Tariff F.C.C. No.
    5.[^21] As of July 1, 1995, Beehive reduced its interstate access
    rate to \$0.14 per terminating minute.[^22]

6.  In October, 1994, Beehive entered into an access revenue-sharing
    arrangement with Joy Enterprises, Inc. ("Joy"), an information
    service provider to which Beehive terminated traffic.[^23]
    Initially, the compensation arrangement required Beehive to pay Joy
    \$.04 per access minute for each long distance call terminated to
    Joy; eventually, in October, 1995, the compensation was adjusted to
    a flat-rate of \$84,000 per month.[^24] Subsequently, in January,
    1997**,** the amount was reduced to \$42,000 per month.[^25]

**III. DISCUSSION**

**A. Beehive Violated Section 203(c) of the Act By Imposing Access
Charges on AT&T For Unsuccessful Call Attempts.**

7.  AT&T alleges --- and Beehive admits --- that Beehive charged AT&T
    for terminating unsuccessful long-distance call attempts, *i.e.*,
    calls that did not terminate to the end user, due to either a "no
    answer" or "busy signal" at the called number.[^26] AT&T maintains
    that this practice contradicted the terms of Beehive's Tariff, in
    violation of section 203(c).[^27] For the following reasons, we
    agree.

8.  As the parties acknowledge, Beehive "was absolutely bound by section
    203(c) . . . to provide access services in exact accordance with its
    tariff."[^28] The parties also agree that section 2.6 of NECA Tariff
    F.C.C. No. 5 governed whether Beehive could properly impose access
    charges for terminating unsuccessful call attempts.[^29] This Tariff
    section provided, in pertinent part:

> For the purpose of calculating chargeable usage, the term 'Access
> Minutes' denotes customer usage of exchange facilities in the
> provision of interstate or foreign service. . . . On the terminating
> end of an interstate or foreign call, usage is measured from the time
> the call is *received* by the end user in the terminating exchange.
> Timing of usage at both originating and terminating ends of an
> interstate or foreign call shall terminate when the calling or called
> party disconnects, whichever event is recognized first in the
> originating and terminating exchanges, as applicable.[^30]

9.  We interpret this Tariff provision to mean that usage for which
    Beehive may impose access charges on AT&T does not begin to accrue
    until a called party "receives" a call. Under this provision, a
    called party does not "receive" a call that goes uncompleted
    (generally due to a no answer or busy signal at the called number);
    rather, a called party "receives" a call only when that party
    actually answers it. Our interpretation of the tariff term "receive"
    comports with the common understanding of the word. For example, the
    dictionary definition of "receive" is, in pertinent part: "1. take
    or accept (something offered or given) into one's hands or
    possession. . . . 3. accept delivery of (something sent).[^31] A
    called party does not "take", "accept", or "accept delivery of" a
    call until he/she answers it. Thus, under the pertinent tariff
    provision, an uncompleted call generates no usage for which Beehive
    may impose access charges on AT&T.

10. To try to counter this reading, Beehive only points out that, under
    the Tariff, the timing of usage "terminate\[s\] when the *calling*
    *or* called party disconnects. . . ."[^32] Based on this
    observation, Beehive argues that it can, in fact, charge for
    uncompleted calls, because a calling party can "disconnect" a call
    even when the called party never picks up.[^33] This reading of the
    Tariff fatally ignores the fact that the standard for determining
    when usage *terminates* does not even apply unless and until the
    standard for determining when usage *begins* has been met. As
    explained above, an uncompleted call does not meet that latter
    standard. Consequently, Beehive's practice of imposing access
    charges on AT&T for terminating uncompleted calls violated Beehive's
    Tariff and, thus, section 203(c) of the Act.

11. AT&T's Complaint requests an order requiring Beehive "to refund AT&T
    all amounts which \[Beehive\] has unlawfully charged \[AT&T\] in
    connection with" uncompleted calls.[^34] However, AT&T has neither
    submitted evidence regarding the appropriate amount of such a
    refund, nor sought bifurcation of this proceeding to make a complete
    damages showing in a subsequent action.[^35] Perhaps this is because
    the parties have agreed to an arbitration mechanism to resolve
    billing disputes, or because AT&T can assert these unlawful charges
    as a claim or an offset in the Utah Court Action.[^36] In any event,
    based on this record, we find that AT&T has established that
    Beehive's conduct regarding uncompleted calls violated section
    203(c) of the Act but has not proven damages.[^37]

12. Accordingly, we grant Count Nine of AT&T's Complaint as to
    liability, but deny Count Nine as to damages.[^38] We express no
    opinion, however, as to whether AT&T may pursue a damages claim in
    the Utah Court Action or in the parties' arbitration.[^39]

**B. Beehive Violated Section 203(c) of the Act By Failing to Comply
With Certain Other Billing Requirements of Its Tariff.**

13. AT&T argues that Beehive violated section 203(c) of the Act by
    "consistently and intentionally"[^40] submitting bills to AT&T for
    access services that were "seriously inaccurate,"[^41] confusing,
    and non-compliant with the billing requirements of Beehive's own
    Tariff.[^42] According to AT&T, the most egregious problems were
    "inconsistent and overlapping time periods contained in each bill
    and the intentionally deceptive manner in which Beehive identifies
    the days on which terminating usage accrued."[^43] Specifically,
    AT&T maintains that Beehive's bill dates varied, Beehive's billing
    periods ranged from three days to thirty-eight days, Beehive's bills
    often included charges for usage incurred outside the billing
    period, and Beehive billed some days twice or not at all.[^44]
    Moreover, AT&T asserts that Beehive identified some of the dates on
    its bills through the use of the Julian calendar, instead of the
    modern calendar, which is known as the Gregorian calendar.[^45]
    According to AT&T, the Julian calendar is approximately 13 days
    ahead of the Gregorian calendar, and has not been observed since the
    16^th^ century.[^46] As evidence of all these practices, AT&T
    submits three bills it received from Beehive and an AT&T staff
    analysis of alleged discrepancies in 173 Beehive bills ("AT&T
    Chart").[^47]

14. As explained above, section 203(c) of the Act requires that a
    carrier adhere to the terms of its published tariff.[^48] As also
    explained above, Beehive's Tariff incorporated by reference the
    non-rate terms and conditions set forth in NECA Tariff F.C.C. No.
    5.[^49] That Tariff clearly specified that the minimum billing
    period would be one month; that Beehive would establish a uniform
    bill date each month that would not change except upon sixty days'
    notice to AT&T; and that Beehive would not double-bill for the same
    usage.[^50] Beehive admits that it failed to comply with the first
    two of these requirements.[^51] Beehive explains that it could not
    adhere to a standard billing cycle of at least one month because (i)
    it depended on data from US West, which data often arrived out of
    sequence and overdue, and (ii) its billing systems experienced
    problems.[^52] Even if factually correct, these explanations do not
    excuse Beehive from the obligation to comply with its Tariff.
    Moreover, AT&T has submitted substantial evidence of numerous and
    prolonged billing errors, which Beehive does not refute.[^53] Thus,
    AT&T has met its burden of proving that Beehive violated section 203
    of the Act by committing numerous billing errors and by failing to
    adhere to a standard billing cycle of at least one month.[^54]

15. We further find, however, that the record fails to support a finding
    that Beehive committed anything more than a *de minimus* violation
    of either section 203(c) or 201(b) by rendering access bills based
    upon the Julian calendar. The evidence submitted by AT&T is
    underwhelming. There is no allegation (much less proof) that any of
    the three bills submitted by AT&T into the record fails to properly
    identify the billing period based upon the Gregorian calendar.[^55]
    Moreover, the AT&T Chart that purports to summarize errors
    discovered on 173 bills indicates that almost all of those bills
    expressed dates based upon both the Julian and Gregorian
    calendars.[^56] Finally, although Beehive admits that it submitted
    five invoices to AT&T between February and May 1995 that referred
    only to Julian calendar dates, Beehive denies that this practice
    continued thereafter,[^57] and there is no evidence in the record to
    the contrary. Thus, assuming, *arguendo*, that billing based solely
    on the Julian calendar would violate sections 201(b) and 203(c), we
    conclude that any such violations here were too trivial to warrant
    any adverse Commission finding.[^58]

16. In sum, we conclude that AT&T has met its burden of proving that
    Beehive violated section 203 with respect to all of the billing
    practices alleged, except the use of the Julian calendar. Therefore,
    we largely grant and partially deny Counts Six and Seven of AT&T's
    Complaint accordingly.[^59] We note that AT&T neither requested nor
    sought to prove damages arising from the billing practices alleged
    in Counts Six and Seven.

######### 

######### C. Beehive's Access Rates Violated Section 201(b) by Generating Earnings Above the Prescribed Rate of Return in 1994, 1995, and 1996.

17. AT&T alleges that Beehive's \$.47 per minute and \$.14 per minute
    rates for terminating interstate access services violated section
    201(b) of the Act, because they caused Beehive to exceed its
    prescribed rate of return of 11.25% in 1994, 1995, and 1996.[^60]
    AT&T did very little to seek or submit in this proceeding's record
    evidence to substantiate its allegations of overearnings.[^61] AT&T
    did eventually request, however, that we take official notice of
    Beehive's acknowledgment in another Commission proceeding that
    Beehive's interstate access charges exceeded the prescribed rate of
    return in 1994, 1995, and 1996.[^62] For the reasons explained
    below, we accede to AT&T's request and, as a result, conclude that
    AT&T has met its burden of showing that Beehive exceeded the
    prescribed rate of return in 1994, 1995, and 1996.

18. On August 5, 1997, pursuant to section 204(a) of the Act,[^63] the
    Common Carrier Bureau's Competitive Pricing Division suspended the
    interstate access tariff that Beehive had belatedly filed on July
    22, 1997 for the 1997-1999 period ("Transmittal No. 6").[^64] In
    doing so, the Suspension Order stated that Transmittal No. 6 raised
    "significant questions of lawfulness" about, *inter alia*, whether
    it contained rates violative of section 201(b) of the Act.[^65] On
    December 2, 1997, the Common Carrier Bureau designated for
    investigation various issues regarding Transmittal No. 6 and
    directed Beehive to provide to the Commission detailed information
    concerning its costs and revenues during 1994, 1995, and 1996.[^66]

19. On December 15, 1997, in response to the Designation Order, Beehive
    submitted to the Commission its "Direct Case" containing cost and
    revenue information for 1994, 1995, and 1996.[^67] This information
    indicated that, for interstate services, Beehive had earned a 15.18%
    rate of return in 1994, a 62.60% rate of return in 1995, and a
    67.95% rate of return in 1996, all well above the prescribed rate of
    return of 11.25%.[^68] Two weeks later, on December 29, 1997,
    Beehive filed another pleading in that proceeding acknowledging the
    accuracy of those excessive rates of return.[^69]

20. The Commission has broad discretion in its adjudicatory proceedings
    to take official notice of factual issues "related directly to the
    agency's expertise or relate\[d\] to certain aspects of the parties'
    situation of which the commission has a good deal of prior
    knowledge."[^70] The historic rate-of-return information submitted
    by Beehive in the Commission's investigation of Beehive's
    Transmittal No. 6 falls well within such discretion.[^71]
    Consequently, we agree with AT&T that we should take official notice
    of Beehive's acknowledgement in the Commission's proceeding
    investigating Beehive's Transmittal No. 6 that Beehive exceeded its
    prescribed interstate access rate of return in 1994, 1995, and 1996.

21. Beehive proffers several reasons why we should refrain from
    considering AT&T's overearnings claims or taking official notice of
    Beehive's prior statements that Beehive exceeded its prescribed
    interstate access rate of return in 1994, 1995, and 1996.[^72] All
    of those reasons lack merit.

22. First, Beehive argues that the two-year statute of limitations in
    section 415(c) of the Act[^73] bars AT&T's claim regarding Beehive's
    \$.47 rate, because AT&T knew or should have known of the grounds
    for the claim when the rate took effect on July 1, 1994, more than
    two years before AT&T filed its complaint on October 29, 1996.[^74]
    Beehive argues that section 415 also bars AT&T's claim regarding
    Beehive's \$.14 rate, because AT&T knew or should have known of the
    grounds for the claim when the rate took effect on July 1, 1995,
    more than two years before AT&T submitted supporting evidence on
    July 2, 1997.[^75] It is well established, however, that the statute
    of limitations on a claim alleging overearnings does not even begin
    to run until the defendant carrier files with the Commission final
    information indicating that it did, in fact, overearn during a
    particular period.[^76] The record contains no evidence that Beehive
    filed such information with the Commission more than two years
    before AT&T filed the instant complaint.[^77] Thus, Beehive's
    statute of limitations defense fails.[^78]

23. Second, Beehive maintains that we should not take official notice of
    information submitted in the Commission's investigation of
    Transmittal No. 6, because such submissions occurred after a
    statutory deadline for resolving AT&T's claims in this proceeding
    had lapsed.[^79] Even assuming, *arguendo*, the validity of
    Beehive's premise, Beehive's conclusion does not follow. It is well
    established that the expiration of a statutory deadline for the
    Commission to act does not divest the Commission of authority to
    continue moving toward resolution of a proceeding.[^80] Accordingly,
    we have authority to take official notice of information submitted
    in the Commission's investigation of Transmittal No. 6, whether or
    not such submissions occurred after a statutory deadline for
    resolving AT&T's claims in this proceeding had lapsed.[^81] Thus,
    Beehive's statutory deadline defense fails.

24. Third, Beehive contends that section 207 of the Act bars AT&T's
    claims regarding the lawfulness of Beehive's rates, because AT&T
    previously alleged the unlawfulness of Beehive's rates as a defense
    in the Utah Court Action.[^82] Section 207 provides, in pertinent
    part, that "\[a\]ny person claiming to be damaged by any common
    carrier . . . may either make complaint to the Commission . . . or
    may bring suit for the recovery of the damages for which such common
    carrier may be liable . . . in any district court of the United
    States . . .; but such person shall not have the right to pursue
    both such remedies."[^83] Beehive overlooks the key facts, however,
    that AT&T raised this defense in the context of a motion to dismiss
    or stay the matter on primary jurisdiction grounds,[^84] and that
    ultimately the federal court essentially granted AT&T's motion.[^85]
    It is well established that section 207 does not apply in the
    context of a primary jurisdiction referral.[^86] Thus, Beehive's
    section 207 defense fails.[^87]

25. Fourth, Beehive asserts that we should not look to the Commission's
    investigation of Transmittal No. 6 for any purpose here, because the
    procedural rules governing the investigation were ad hoc and
    different from formal complaint procedures; the investigation
    included ex parte presentations; the investigation proceeded on an
    unlawfully abbreviated schedule; the investigation concerned
    Beehive's 1997 interstate switching rates, not its 1994-1996 overall
    access rates; and the investigation record contained no data
    concerning Beehive's costs and demand in 1993.[^88] All of these
    assertions miss the point.[^89] None of these assertions changes the
    fact that, during the course of the Commission's investigation of
    Transmittal No. 6, Beehive itself submitted information to the
    Commission clearly indicating that Beehive exceeded its prescribed
    interstate access rate of return in 1994, 1995, and 1996; and
    Beehive has shown nothing in the investigation proceeding or in this
    proceeding that undermines the validity of Beehive's submissions.
    Thus, Beehive's defense based on the nature and content of the
    Commission's investigation of Transmittal No. 6 fails.

26. Finally, Beehive argues that AT&T cannot challenge the lawfulness of
    Beehive's interstate access rates in 1995-1996, because AT&T refused
    during that time to first pay all of the charges based on those
    rates.[^90] Beehive's argument fatally ignores the fact that its own
    Tariff contemplates that a customer may withhold payment of disputed
    charges pending resolution of the dispute.[^91] Under the filed rate
    doctrine, therefore, Beehive's argument fails.[^92]

27. In sum, Beehive presents no valid argument why we should refrain
    from considering AT&T's overearnings claims and taking official
    notice of information submitted by Beehive during the Commission's
    investigation of Transmittal No. 6. Consequently, we take official
    notice of the fact that, according to Beehive's own records, Beehive
    earned interstate access revenues above its prescribed rate of
    return in 1994, 1995, and 1996. Moreover, nothing in the record
    refutes this evidence. Thus, AT&T has met its burden of
    demonstrating that Beehive's access rates during those years were
    unjust and unreasonable, in violation of section 201(b) of the
    Act.[^93]

28. AT&T has not met its burden, however, of demonstrating the extent to
    which it was damaged by Beehive's unlawful rates. Although the
    record contains some pertinent information, the record does not
    contain everything needed to make a precise damage calculation.
    Moreover, nowhere in the record does AT&T explain exactly how much
    it believes we should award due to these violations or precisely how
    it would calculate such an amount based on record evidence. Thus, we
    grant AT&T's overearnings claims in Counts Four and Five of the
    Complaint as to liability, but deny those claims as to damages.
    Again, however, we express no opinion as to whether AT&T may pursue
    a damages claim in the Utah Court Action or in the parties'
    arbitration.[^94]

######### D. AT&T Has Not Demonstrated on This Record that the Access Revenue-Sharing Arrangement Between Beehive and Joy Violated Section 201(b) or 202(a) of the Act. 

29. AT&T alleges in its Complaint that the access revenue-sharing
    arrangement between Beehive and Joy breached Beehive's common
    carrier duties, in violation of section 201(b) of the Act, and
    constituted unreasonable discrimination, in violation of section
    202(a) of the Act.[^95] AT&T's allegations and arguments are
    identical to those raised and denied in *AT&T v. Jefferson*[^96] and
    *AT&T v. Frontier*.[^97] Thus, for the reasons explained in those
    orders, we conclude that AT&T has failed on this record to meet its
    burden of demonstrating that Beehive violated either section 201(b)
    or section 202(a) of the Act.[^98] Therefore, we deny Counts One,
    Two, and Three of AT&T's Complaint.[^99]

**E. Beehive's Complaint Lacks Merit.**

30. In its Complaint, Beehive alleges that, if (and only if) the
    Commission were to find in this consolidated proceeding that its
    access revenue-sharing arrangement with Joy was unlawful, then the
    Commission must also find that AT&T's use of so-called Terminating
    Switched Access Arrangements ("TSAAs") with AT&T's end user
    customers is unlawful.[^100] Elsewhere in this Order, we find that,
    based on the record in this proceeding, AT&T has failed to meet its
    burden of proving that Beehive's access revenue-sharing arrangement
    with Joy was unlawful.[^101] Therefore, the condition precedent pled
    by Beehive has not been satisfied, and Beehive's claims must
    fail.[^102] Accordingly, we dismiss the First and Second Causes of
    Action of Beehive's Complaint.[^103]

31. Beehive further alleges that, if (and only if) the Commission were
    to find in a different pending proceeding that a similar access
    revenue-sharing arrangement between another carrier (Total
    Telecommunications Services, Inc.) and an information provider was
    an unlawful attempt to evade the requirements TDDRA, then the
    Commission must also find that AT&T's use of TSAAs constituted an
    unlawful evasion of TDDRA, as well.[^104] In *Total
    Telecommunications Services, Inc., and Atlas Telephone Company,
    Inc. v. AT&T Corp.*, we rejected this TDDRA claim as moot,[^105] and
    AT&T did not raise a TDDRA claim in its Complaint here. Therefore,
    again, the condition precedent pled by Beehive has not been
    satisfied, so Beehive's claim must fail. Accordingly, we dismiss the
    Fifth Cause of Action of Beehive's Complaint. [^106]

32. Finally, Beehive alleges that AT&T concealed material facts in this
    complaint proceeding, in violation of sections 1.17 and 1.729(b) of
    the Commission's rules.[^107] These facts dealt with the existence
    and details of certain of AT&T's TSAAs. Based on our review of the
    entire record in this proceeding, we conclude that Beehive has
    failed to meet its burden of proving that AT&T willfully withheld
    material information. Accordingly, we deny the Third and Fourth
    Causes of Action of Beehive's Complaint.[^108]

**IV. ORDERING CLAUSES**

33. ACCORDINGLY, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j),
    201(b), 202(a), 203(c), and 208 of the Communications Act of 1934,
    as amended, 47 U.S.C. §§ 151, 154(i), 154(j), 201(b), 202(a),
    203(c), and 208, that the above-captioned complaint filed by AT&T IS
    GRANTED IN PART AND DISMISSED OR DENIED IN PART to the extent
    described herein.

34. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j), 201(b),
    202(a), 203(c), and 208 of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 151, 154(i), 154(j), 201(b), 202(a), 203(c),
    and 208, that the above-captioned complaint filed by Beehive IS
    DISMISSED AND DENIED IN ITS ENTIRETY WITH PREJUDICE.

35. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j), 201(b),
    202(a), 203(c), and 208 of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 151, 154(i), 154(j), 201(b), 202(a), 203(c),
    and 208, that AT&T's May 20, 1997 Motion to Dismiss, Beehive's July
    16, 1997 Motion to Strike, and Beehive's March 16, 1998 Petition for
    Reconsideration are DISMISSED as moot.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: ^?^ *AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive
    Telephone Inc. Nevada*, and *Beehive Telephone Co., Inc. and Beehive
    Telephone Inc. Nevada v. AT&T Corp.*, Letter from Russell D. Lukas,
    Counsel for Beehive Telephone Co., to Thomas D. Wyatt, Associate
    Chief, Enforcement Division, Common Carrier Bureau, FCC, File Nos.
    E-97-04, E-97-14 (dated Jan. 21, 1998) (confirming that the parties
    agreed to the consolidation of these complaint proceedings during a
    conference call held with Commission staff on January 9, 1998).

[^2]: ^?^ 47 U.S.C. § 208. *See AT&T Corp. v. Beehive Telephone Co.,
    Inc. and Beehive Telephone Inc. Nevada*, Verified Complaint, File
    No. E-97-04 (filed October 29, 1996) ("AT&T Complaint").

[^3]: ^?^ *AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive
    Telephone, Inc. Nevada*, Cross Complaint, File E-97-14 (filed March
    25, 1997) ("Beehive Complaint").

[^4]: ^?^ 47 U.S.C. § 201(b). Section 201(b) of the Act provides, in
    pertinent part, that "\[a\]ll charges \[and\] practices . . . in
    connection with such communication service shall be just and
    reasonable, and any such charge \[or\] practice . . . that is unjust
    or unreasonable is hereby declared to be unlawful." 47 U.S.C. §
    201(b).

[^5]: ^?^ 47 U.S.C. § 203(c). Section 203(c) of the Act states that a
    carrier must provide communications services in strict accordance
    with the terms and conditions contained in its tariff. 47 U.S.C. §
    203(c).

[^6]: ^?^ AT&T Complaint at 9-12, ¶¶ 28-47.

[^7]: ^?^ AT&T Complaint at 6-8, ¶¶ 16-23.

[^8]: ^?^ 47 U.S.C. § 202(a). *See* AT&T Complaint at 8, ¶¶ 24-27.
    Section 202(a) of the Act makes it unlawful "for any common carrier
    to make any unjust or unreasonable discrimination in charges,
    practices, . . . facilities, or services for or in connection with
    like communication service . . . or to make or give any undue or
    unreasonable preference or advantage to any particular person." 47
    U.S.C. § 202(a).

[^9]: ^?^ *See generally Hi-Tech Furnace Systems, Inc. v. FCC*, 224 F.3d
    781, 787 (D.C. Cir. 2000) (affirming that the complainant in a
    proceeding conducted under section 208 of the Act bears the burden
    of proof). We also dismiss as moot AT&T's billing claims under
    section 201(b) of the Act, because they are based on the same facts,
    and seek the same relief, as the claims under section 203(c) that we
    grant.

[^10]: ^?^ Beehive Complaint at 9-10, 12-13, ¶¶ 34-40, 54-61.

[^11]: ^?^ 47 C.F.R. § 1.17. Section 1.17 of the Commission's rules
    forbids a carrier from making "any misrepresentation or willful
    material omission bearing on any matter within the jurisdiction of
    the Commission." 47 C.F.R. § 1.17.

[^12]: ^?^ 47 C.F.R. § 1.729(b) (1996). At the relevant time, section
    1.729(b) of the Commission's rules required interrogatories to be
    answered "fully in writing under oath or affirmation." *Id.* That
    obligation now appears in section 1.729(e) of our rules. 47 C.F.R. §
    1.729(e) (2001).

[^13]: ^?^ Beehive Complaint at 10-12, ¶¶ 41-53.

[^14]: ^?^ AT&T Complaint at 2-3, ¶¶ 2-3, 5; *AT&T Corp. v. Beehive
    Telephone Co., Inc. and Beehive Telephone Inc. Nevada*, Answer, File
    No. E-97-04 (filed December 18, 1996) at 1-2, ¶¶ 2-3, 5 ("Beehive
    Answer"); *AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive
    Telephone Inc. Nevada*, Brief for Defendants, File No. E-97-04
    (filed June 5, 1997) at 3 ("Beehive Initial Brief"); Beehive
    Complaint at 1, ¶¶ 1-2.

[^15]: ^?^ AT&T Complaint at 2-3, ¶¶ 2-3, 5; Beehive Answer at 1-2, ¶¶
    2-3, 5; *AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive
    Telephone Inc. Nevada*, Initial Brief of AT&T Corp., File No.
    E-97-04 (filed June 5, 1997) at 1 ("AT&T Initial Brief").

[^16]: ^?^ AT&T Complaint at 3, ¶ 6; Beehive Answer at 2, ¶ 6; AT&T
    Initial Brief at 1.

[^17]: ^?^ AT&T Complaint at 3, ¶ 6; Beehive Answer at 2, ¶ 6; AT&T
    Initial Brief at 1-2.

[^18]: ^?^ 47 C.F.R. § 61.39 (permitting certain small local exchange
    carriers to base their tariffed access rates upon historic costs and
    revenues).

[^19]: ^?^ AT&T Complaint at 3, ¶¶ 6-7; Beehive Answer at 2, ¶¶ 6-7;
    AT&T Initial Brief at 1-2; Beehive Initial Brief at 3.

[^20]: ^?^ AT&T Complaint at 3, ¶ 7; Beehive Answer at 2, ¶ 7; AT&T
    Initial Brief at 2.

[^21]: ^?^ AT&T Complaint at 11, ¶ 44; Beehive Answer at 7-8, ¶ 44;
    Beehive Initial Brief at 23-24; AT&T Initial Brief at 22. Beehive's
    current Tariff is available on the Commission web site at
    <http://svartifoss2.fcc.gov/cgi-bin/ws.exe/prod/ccb/etfs/webpublic/search.hts>.

[^22]: ^?^ AT&T Complaint at 4, ¶ 11; Beehive Answer at 3, ¶ 11; AT&T
    Initial Brief at 4. At about that same time, AT&T began to refuse to
    pay some or all of Beehive's interstate terminating access charges.
    Beehive Answer at 3-4, ¶ 12; Beehive Initial Brief at 6. Five months
    later, on December 5, 1995, Beehive filed suit against AT&T in
    federal district court in Utah seeking to recover access charges
    allegedly withheld unlawfully by AT&T (the "Utah Court Action").
    Beehive Answer at 3-4, ¶ 12; Beehive Initial Brief at 6. On January
    5, 1996, pursuant to Fed.R.Civ.P. 12(b), AT&T filed, in lieu of an
    answer, a motion to dismiss or stay the complaint on primary
    jurisdiction grounds. *See* *AT&T Corp. v. Beehive Telephone Co.,
    Inc. and Beehive Telephone Inc. Nevada*, Reply Brief of AT&T Corp.,
    File No. E-97-04 (filed July 2, 1997) ("AT&T Reply Brief") at
    Exhibits C, D. On April 29, 1997, the federal district court stayed
    the Utah Court Action pending a ruling by the Commission in this
    proceeding. *AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive
    Telephone Inc. Nevada*, Letter from Peter H. Jacoby, Counsel for
    AT&T Corp., to Greg Lipscomb, Attorney, Formal Complaints and
    Investigations Branch, Enforcement Division, Common Carrier Bureau,
    FCC, File No. E-97-04 (dated May 6, 1997), Attachment; AT&T Reply
    Brief at 14-15.

[^23]: ^?^ AT&T Complaint at 3-4, ¶ 9; Beehive Answer at 2-3, ¶ 9; AT&T
    Initial Brief at 3.

[^24]: ^?^ Beehive Initial Brief at 4 n.4; AT&T Initial Brief at Exhibit
    4 (Defendant's Response to Complainant's First Set of
    Interrogatories), Response to Interrogatory No. 1.

[^25]: ^?^ *AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive
    Telephone Inc. Nevada*, Reply Brief For Defendants, File No. E-97-04
    (filed July 2, 1997) at 6 ("Beehive Reply Brief").

[^26]: ^?^ AT&T Complaint at 5, 11-12, ¶¶ 14, 43-47; Beehive Answer at
    4, ¶ 14; Beehive Initial Brief at 23-24. *See* AT&T Initial Brief at
    23-26; AT&T Reply Brief at 24-25.

[^27]: ^?^ AT&T Complaint at 11-12, ¶¶ 43-47; AT&T Initial Brief at
    23-26.

[^28]: ^?^ Beehive Initial Brief at 11. *See, e.g.*, *Public Service
    Enterprises of Pennsylvania, Inc. v. AT&T Corp.*, Memorandum Opinion
    and Order, 10 FCC Rcd 8390, 8402 (1995) (stating that "\[s\]ection
    203 is intended primarily to insure that carriers file all rates and
    regulations in their tariffs and abide by them upon all
    occasions."), *vacated and remanded on other grounds*, *AT&T Corp.
    v. FCC*, 86 F.3d 242 (1996). *See also* *Philippine Long Distance
    Telephone v. World Communications, Inc*., Order and Notice of
    Apparent Liability for Forfeitures, 8 FCC Rcd 755, 759 n.35 (1993),
    *recon. granted on other grounds*, *Philippine Long Distance
    Telephone v. World Communications, Inc*., Order, 13 FCC Rcd 21520
    (1998).

[^29]: ^?^ *See* AT&T Complaint at 11, ¶ 44; Beehive Answer at 7-8, ¶
    44; Beehive Initial Brief at 23-24; AT&T Initial Brief at 22. We
    note that AT&T failed to enter into the record section 2.6 of NECA
    Tariff F.C.C. No. 5. This did not violate any existing rule,
    however. At the time the complaint was filed in this proceeding,
    section 1.720(h) of the Commission's rules merely encouraged parties
    to provide copies of any relevant tariff provisions. 47 C.F.R. §
    1.720(h) (1996). This rule has since been revised to *require* that
    parties provide copies of relevant tariff provisions. 47 C.F.R. §
    1.720(h) (2001).

[^30]: ^?^ NECA Tariff F.C.C. No. 5, Section 2.6, Definitions, Access
    Minutes (emphasis added). Because neither party submitted into the
    record the version of section 2.6 of NECA Tariff F.C.C. No. 5 that
    was effective during the relevant period, we quote from the
    currently effective version of NECA Tariff No. 5 (which is available
    on the Commission web site at
    <http://svartifoss2.fcc.gov/cgi-bin/ws.exe/prod/ccb/etfs/webpublic/search.hts>),
    and assume that the current version does not materially differ from
    the version in effect at the relevant time.

[^31]: ^?^ The Oxford American Dictionary of Current English (Oxford
    University Press 1999) at 665.

[^32]: ^?^ Beehive Initial Brief at 23, *quoting* NECA Tariff F.C.C. No.
    5, § 2.6 at 2-61 (emphasis added).

[^33]: ^?^ Beehive Initial Brief at 23-24.

[^34]: ^?^ AT&T Complaint at 13.

[^35]: ^?^ *See* 47 C.F.R. § 1.722 (1996).

[^36]: ^?^ Beehive Initial Brief at 22; AT&T Reply Brief at 23-24;
    Beehive Reply Brief at 27.

[^37]: ^?^ Beehive alleges that the Filed Rate Doctrine bars AT&T's
    claim of overcharges based on charges for uncompleted calls. Beehive
    Answer at 8, ¶¶ 50-52. This defense is patently meritless. To the
    extent that Beehive billed AT&T in violation of its Tariff and the
    Act, the Filed Rate Doctrine provides no shelter. *See, e.g.,* *AT&T
    Corp. v. Business Telecom, Inc.*, Memorandum Opinion and Order, 16
    FCC Rcd 12312, 12317-18, ¶ 9 (2001).

[^38]: ^?^ In addition, we dismiss as moot Count Eight of AT&T's
    Complaint because, although based on section 201(b) rather than
    section 203(c), Count Eight is identical in all other material
    respects to Count Nine.

[^39]: ^?^ This is because this proceeding stems from a primary
    jurisdiction referral. *See* paragraph 24, *infra.*

[^40]: ^?^ AT&T Initial Brief at 19.

[^41]: ^?^ AT&T Initial Brief at 19.

[^42]: ^?^ AT&T Complaint at 5, 10-11, ¶¶ 13, 38-42.

[^43]: ^?^ AT&T Initial Brief at 19. *See* AT&T Complaint at 5, ¶ 13.

[^44]: ^?^ AT&T Complaint at 5, ¶ 13; AT&T Initial Brief at 19-23; AT&T
    Reply Brief at 22-23.

[^45]: ^?^ AT&T Complaint at 5, ¶ 13; AT&T Initial Brief at 20; AT&T
    Reply Brief at 23. The Julian calendar was adopted by Julius Caesar
    in 46 B.C.E. The Julian calendar closely resembles the Gregorian
    calendar, as both derive from 365 days divided into twelve months.
    By the thirteenth century, however, scholars realized that the
    Julian calendar included a minor flaw, which resulted in the
    calendar slowly becoming out of sync with the solar year. The flaw
    was this: under the Julian calendar, a year was 365.25 days long
    (*i.e.*, an extra day was inserted every fourth year, typically
    known as a "leap year"). This significantly differs from the "real"
    length of the solar year, which is approximately 365.242199 days
    long. This error amounted to slightly more than 11 minutes per year.
    As a result, as the centuries passed, the Julian calendar became
    increasingly inaccurate with respect to the seasons. By the 16^th^
    century, the Julian calendar was running nearly two weeks late. To
    fix this growing problem, astronomers proposed eliminating ten days
    from the calendar and changing the rules regarding leap years. Pope
    Gregory XIII adopted this proposal in 1582. Thus, under the
    Gregorian calendar, "leap year" is skipped three times every four
    hundred years. *See* "Calendar," 15 E[ncyclopedia]{.smallcaps}
    B[ritannica]{.smallcaps} 432, 444-46 (15^th^ ed., 1991); Peter
    Meyer, "The Julian and Gregorian Calendars,"
    <http://serendipity.magnet.ch/hermetic/cal_stud/cal_art.htm>; L. E.
    Doggett, "Calendars," <http://astro.nmsu.edu/~lhuber/leaphist.html>.

[^46]: ^?^ AT&T Complaint at 5, ¶ 13; AT&T Initial Brief at 20. AT&T is
    incorrect. Although Pope Gregory XIII issued a papal decree
    establishing the Gregorian calendar in 1582, several nations
    continued to use the Julian calendar for some time thereafter. For
    example, Britain (and the British colonies, such as America)
    continued to use the Julian calendar until 1752. Other countries
    that continued to use the Julian calendar include Sweden (switched
    in 1753), Japan (1873), Egypt (1875), the Soviet Union (1918), and
    Turkey (1927), to name just a few. Alaska retained the Julian
    calendar until 1867, when it was transferred from Russia to the
    United States. *See* "Calendar," 15 E[ncyclopedia]{.smallcaps}
    B[ritannica]{.smallcaps} 432, 444-46 (15^th^ ed., 1991); Peter
    Meyer, "The Julian and Gregorian Calendars,"
    <http://serendipity.magnet.ch/hermetic/cal_stud/cal_art.htm>.

[^47]: ^?^ AT&T Reply Brief at Exhibit I; AT&T Initial Brief at Exhibit
    3, Attachment A.

[^48]: ^?^ 47 U.S.C. § 203(c). *See* n.28, *supra.*

[^49]: ^?^ *See* ¶ 8 and n.29, *supra.*

[^50]: ^?^ NECA Tariff F.C.C. No. 5, sections 2.4.1, 2.4.2 (appended to
    AT&T's Initial Brief at Exhibit 7). Although no provision of the
    NECA tariff expressly prohibits double billing, this duty is implied
    throughout section 2.4.1. For example, section 2.4.1(B) states that
    Beehive "shall bill on a current basis all charges incurred by and
    credits due to the customer under this tariff . . . ." NECA Tariff
    F.C.C. No. 5, section 2.4.1(B).

[^51]: ^?^ *See* AT&T Initial Brief at Exhibit 4, Response to
    Interrogatory No. 10. For example, three Beehive bills submitted
    into the record by AT&T indicate billing periods of six, five, and
    four days. *See* AT&T Reply Brief at Exhibit I.

[^52]: ^?^ Beehive Reply Brief at 26.

[^53]: ^?^ *See* AT&T Initial Brief at Exhibit 3, Attachment A.

[^54]: ^?^ Because of this holding, we dismiss as moot AT&T's claim in
    Count Seven that Beehive violated section 201(b), based on the same
    conduct.

[^55]: ^?^ *See* AT&T Reply Brief at Exhibit I.

[^56]: ^?^ *See* AT&T Initial Brief at Exhibit 3, Attachment A.

[^57]: ^?^ Beehive Answer at 4, ¶ 13.

[^58]: ^?^ In order to minimize uncertainty and confusion in interstate
    access billing matters, we strongly encourage carriers to use the
    standard, generally accepted calendar.

[^59]: ^?^ Beehive alleges that the Filed Rate Doctrine bars AT&T's
    claims of unlawful billing practices. Beehive Answer at 8, ¶¶ 50-52.
    This defense is patently meritless. *See* *supra*, n.37.

[^60]: ^?^ AT&T Complaint at 9-10, ¶¶ 28-37; AT&T Initial Brief at
    26-29; AT&T Reply Brief at 20-22; *AT&T Corp. v. Beehive Telephone
    Co., Inc. and Beehive Telephone Inc. Nevada*, Initial Brief of AT&T
    Corp., File Nos. E-97-04, E-97-14 (filed Apr. 20, 1998) at 8-11,
    24-15 ("AT&T Supplemental Brief"); *AT&T Corp. v. Beehive Telephone
    Co., Inc. and Beehive Telephone Inc. Nevada*, Reply Brief of AT&T
    Corp., File Nos. E-97-04, E-97-14 (filed May 4, 1998) at 7-13 ("AT&T
    Supplemental Reply Brief"). *See* *Represcribing the Authorized Rate
    of Return for Interstate Services of Local Exchange Carriers*,
    Order, 5 FCC Rcd 7507, 7509, ¶ 13 (1990) (prescribing a rate of
    return of 11.25% for certain incumbent LECs, including Beehive).

[^61]: ^?^ *See generally* AT&T Reply Brief at 20-22 (acknowledging
    that, based on the record evidence at that time, the Commission
    could not be "completely certain" that Beehive had exceeded its
    prescribed rate of return).

[^62]: ^?^ AT&T Supplemental Brief at 24-25; AT&T Supplemental Reply
    Brief at 3-11.

[^63]: ^?^ 47 U.S.C. § 204(a) (authorizing the Commission to suspend a
    tariff and to determine whether new or revised charges contained in
    the tariff are just and reasonable).

[^64]: ^?^ *Beehive Telephone Co., Inc., Tariff F.C.C. No. 1,
    Transmittal No. 6*, Suspension Order, 12 FCC Rcd 11695 (Com. Car.
    Bur., Com. Pric. Div. 1997) ("*Suspension Order*").

[^65]: ^?^ *Suspension Order*, 12 FCC Rcd at 11697, ¶ 6.

[^66]: ^?^ *Beehive Telephone Co., Inc., Tariff F.C.C. No. 1,
    Transmittal No. 6*, Order Designating Issues for Investigation, 12
    FCC Rcd 20249 (Com. Car. Bur. 1997) ("*Designation Order*").

[^67]: ^?^ *Beehive Telephone Co., Inc., Tariff F.C.C. No. 1,
    Transmittal No. 6*, Direct Case, CC Docket No. 97-237 (filed Dec.
    15, 1997) ("Direct Case").

[^68]: ^?^ Direct Case at 4, 7, 11.

[^69]: ^?^ *Beehive Telephone Co., Inc., Tariff F.C.C. No. 1,
    Transmittal No. 6*, Rebuttal to Opposition to Direct Case, CC Docket
    No. 97-237 (filed Dec. 29, 1997) at 13 ("Rebuttal"). The Commission
    ultimately determined that Beehive's switching rates in Transmittal
    No. 6 were excessive, and thus prescribed lower switching rates and
    ordered refunds. *Beehive Telephone Co., Inc., Tariff F.C.C. No. 1,
    Transmittal No. 6*, Memorandum Opinion and Order, 13 FCC Rcd 2736
    (1998) ("*Refund Order*"), *modified on recon.*, Order on
    Reconsideration, 13 FCC Rcd 11795 (1998), *aff'd, Beehive Telephone
    Co., Inc. v. FCC*, 180 F.3d 314 (1999). In so ruling, the Commission
    determined that Beehive's rate of return on switching alone was
    12.2% in 1994, 111% in 1995, and 65% in 1996. *Refund Order*, 13 FCC
    Rcd at 2741, ¶ 13.

[^70]: ^?^ Aman & Mayton, *Administrative Law* § 8.4.8 at 232 (West
    1993). *See* 5 U.S.C. § 556(e); 47 C.F.R. §§ 1.361, 1.727(b); Fed.
    R. Evid. 201.

[^71]: ^?^ *See, e.g.*, *Bachow/Coastel, L.L.C. v. GTE Wireless of the
    South, Inc.*, Order on Review, 16 FCC Rcd 4967, 4968-69, ¶ 5 (2001);
    *In Re Applications of Chesapeake and Potomac Company of Virginia*,
    Memorandum Opinion and Order, 98 F.C.C. 2d 238, 239 n.4 (1984);
    *Revision of the Processing Policies for Waivers of the Telephone
    Company-Cable Television "Cross Ownership Rules,"* Memorandum
    Opinion and Order, 82 F.C.C. 2d 254, 260-61 & n.6 (1980), *recon.
    granted in part on other grounds, Revision of the Processing
    Policies for Waivers of the Telephone Company-Cable Television
    "Cross Ownership Rules,"* Memorandum Opinion and Order, 86 FCC 2d
    983 (1981).

[^72]: ^?^ *AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive
    Telephone Inc. Nevada*, Supplemental Brief for Defendants in File
    No. E-97-04 and Initial Brief for Complainants in File No. E-97-14,
    File Nos. E-97-04, E-97-14 (filed Apr. 20, 1998) at 17-26 ("Beehive
    Supplemental Brief"); *AT&T Corp. v. Beehive Telephone Co., Inc. and
    Beehive Telephone Inc. Nevada*, Reply Brief, File Nos. E-97-04,
    E-97-14 (filed May 4, 1998) at 8-12, 27-28 ("Beehive Supplemental
    Reply Brief").

[^73]: ^?^ 47 U.S.C. § 415.

[^74]: ^?^ Beehive Supplemental Brief at 17-20; Beehive Supplemental
    Reply Brief at 22.

[^75]: ^?^ Beehive Supplemental Brief at 20-23.

[^76]: ^?^ *See, e.g., MCI Telecommunications Corp. v. FCC*, 59 F.3d
    1407, 1416-17 (D.C. Cir. 1995), *cert. dismissed sub nom. BellSouth
    Telecommunications, Inc. v. FCC*, 517 U.S. 1129 (1996), *cert.
    denied sub nom. BellSouth Telecommunications, Inc. v. FCC*, 517 U.S.
    1240 (1996); *General Communication, Inc. v. Alaska Communications
    Systems Holdings, Inc., et al*., Memorandum Opinion and Order, 16
    FCC Rcd 2834, 2860-61, ¶¶ 67-68 (2001), *appeal pending, ACS of
    Anchorage, Inc. v. Federal Communications Commission,* No. 01-1059
    (D.C. Cir., filed Feb. 7, 2001).

[^77]: ^?^ *See generally* 47 C.F.R. § 65.600 (requiring local exchange
    carriers not subject to price cap regulation to file with the
    Commission an annual rate-of-return monitoring report).

[^78]: ^?^ For the same reasons, Beehive's laches defense also fails.
    Answer at 9-12, ¶¶ 57-71.

[^79]: ^?^ Beehive Supplemental Brief at 20-23 (citing 47 U.S.C. §
    208(b)(1)).

[^80]: ^?^ *See, e.g.*, *Contract Freighters, Inc. v. Dep't of
    Transportation*, 260 F.3d 858, 860 n.3 (8^th^ Cir. 2001);
    *Southwestern Bell Telephone Co. v. FCC*, 138 F.3d 746, 749-50
    (8^th^ Cir. 1998); *Gottleib v. Pena*, 41 F.3d 730, 733-37 (D.C.
    Cir.1994); *800 Data Base Access Tariffs and the 800 Service
    Management System Tariff*, Order on Reconsideration, 12 FCC Rcd
    5188, 5193-94, ¶ 15 (1997).

[^81]: ^?^ Given this conclusion, we need not and do not decide whether
    the submissions at issue here occurred after a statutory deadline
    for resolving AT&T's claims in this proceeding had lapsed.

[^82]: ^?^ 47 U.S.C. § 207. *See* Beehive Initial Brief at 15-16.

[^83]: ^?^ 47 U.S.C. § 207.

[^84]: ^?^ AT&T Reply Brief at Exhibits D, C.

[^85]: ^?^ *AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive
    Telephone Inc. Nevada*, Letter from Peter H. Jacoby, Counsel for
    AT&T Corp., to Greg Lipscomb, Attorney, Formal Complaints and
    Investigations Branch, Enforcement Division, Common Carrier Bureau,
    FCC, File No. E-97-04 (dated May 6, 1997), Attachment. *See* Beehive
    Initial Brief at 10; AT&T Reply Brief at 14-15.

[^86]: ^?^ *See, e.g.*, *Allnet Communication Service, Inc. v. National
    Exchange Carrier Association, Inc.*, 965 F.2d 1118, 1122 (D.C. Cir.
    1992).

[^87]: ^?^ It is true that AT&T filed its complaint here perhaps a bit
    prematurely, a few months before the federal court granted AT&T's
    primary jurisdiction motion. At this point, however, long after the
    court has granted AT&T's motion, dismissing AT&T's complaint on that
    basis would unduly exalt form over substance. This is especially
    true, given that Beehive has alleged no prejudice arising from
    AT&T's filing of the complaint in anticipation of the court's order
    granting referral. Indeed, section 207 might not even apply here,
    because AT&T raised the issue of rate reasonableness in the context
    of a Rule 12(b) motion, not in the context of an affirmative defense
    or counterclaim. Nevertheless, we caution future complainants that
    the mere filing of a primary jurisdiction motion in court does not
    vitiate section 207 concerns.

[^88]: ^?^ Beehive Supplemental Brief at 23-26; Beehive Supplemental
    Reply Brief at 11-12, 27-28.

[^89]: ^?^ We note that the D.C. Circuit affirmed the Commission's order
    concluding the investigation of Transmittal No. 6, which found that
    Beehive's interstate rate of return for local switching in 1994-1996
    was excessive, and which rejected the "due process" arguments raised
    here. *Beehive Telephone Company, Inc., Tariff F.C.C. No. 1,
    Transmittal No. 6*, Memorandum Opinion and Order, 13 FCC Rcd 2736
    (1998), *modified on recon.*, Order on Reconsideration, 13 FCC Rcd
    11795 (1998), *aff'd*, *Beehive Telephone Co., Inc.*, 180 F.3d 314
    (D.C. Cir. 1999).

[^90]: ^?^ Beehive Initial Brief at 16-17.

[^91]: ^?^ NECA Tariff F.C.C. No. 5, section 2.4.1(D). Given this
    result, we need not decide whether Beehive's defense has any other
    flaws.

[^92]: ^?^ *See, e.g.*, *AT&T v. Central Office Telephone, Inc.*, 524
    U.S. 214 (1998). Beehive also seems to argue that the filed rate
    doctrine precludes AT&T from challenging the reasonableness of
    Beehive's tariffed access rates. Beehive Answer at 8, ¶¶ 50-52;
    Beehive Initial Brief at 16-17. That argument is patently meritless.
    It is well established that the Commission has the authority to
    determine the reasonableness of a tariffed rate in the context of a
    section 208 complaint proceeding. *See, e.g.*, *AT&T Corp. v.
    Business Telecom, Inc*., Memorandum Opinion and Order, 16 FCC Rcd
    12312, 12317-20, ¶¶ 9-12 (2001).

[^93]: ^?^ We must assess the lawfulness of Beehive's rates and earnings
    in 1994 in combination with Beehive's rates and earnings in 1993.
    *See* 47 C.F.R. §§ 65.600(b), 65.702(b). *See also Virgin Islands
    Telephone Corp. v. FCC*, 989 F.2d 1231 (D.C. Cir. 1993). Here, we
    conclude that Beehive's rates in 1994 were unlawful based, in part,
    on an assumption that Beehive did not materially underearn in 1993.
    This assumption is reasonable, because Beehive knew that AT&T was
    urging us to consider information regarding Beehive's rates and
    earnings in 1994, yet offered no evidence (such as monitoring
    reports) indicating that any overearnings in 1994 had been offset by
    underearnings in 1993. This assumption is especially appropriate
    because (i) Beehive participated in the NECA tariff during 1993 and
    half of 1994, and (ii) the record contains some evidence that
    Beehive actually overearned in the 1993-94 period. *See* AT&T Reply
    Brief at Exhibit H (a Beehive preliminary report indicating that its
    interstate rate of return during 1993-94 would be 16.93%). Beehive
    moves us to strike this (and other) evidence as untimely filed,
    *AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive Telephone
    Inc. Nevada*, Letter from Russell D. Lukas, Counsel for Beehive
    Telephone Co., to Greg Lipscomb, Attorney, Enforcement Division,
    Common Carrier Bureau, FCC, File No. E-97-04 (dated Jul. 16, 1997),
    but we deny that motion, because Beehive had ample opportunity in
    its briefs filed in 1998 to respond to this (and other) evidence,
    which AT&T filed in 1997.

[^94]: ^?^ *See* n.39, *supra.*

[^95]: ^?^ AT&T Complaint at 6-8, ¶¶ 16-27. *See* AT&T Initial Brief at
    5-19; AT&T Reply Brief at 9-12, 15-20.

[^96]: ^?^ *AT&T Corp. v. Jefferson Telephone Co.*, Memorandum Opinion
    and Order, 16 FCC Rcd 16130 (2001) ("*AT&T v. Jefferson*").

[^97]: ^?^ *AT&T Corp. v. Frontier Communications of Mt. Pulaski, Inc.
    et al.*, Memorandum Opinion and Order, 17 FCC Rcd 4041 (2002)
    ("*AT&T v. Frontier*").

[^98]: ^?^ *See generally Hi-Tech Furnace Systems, Inc. v. FCC*, 224
    F.3d 781, 787 (D.C. Cir. 2000) (affirming that the complainant in a
    proceeding conducted under section 208 of the Act bears the burden
    of proof). We note that, although AT&T suggests that Beehive's
    corporate relationship with Joy was somehow improper, *see, e.g.*,
    AT&T Initial Brief at 2, 5, AT&T asserts no claim on this basis.

[^99]: ^?^ Moreover, we decline to reach two issues that AT&T raised for
    the first time in its briefs, because the tardy raising of these
    issues renders the record insufficient to permit a reasoned
    decision. *See, e.g., AT&T v. Jefferson*, 16 FCC Rcd at 16133 n.18;
    *Consumer.Net v. AT&T Corp.*, Order, 15 FCC Rcd 281, 300, ¶ 40 n.93
    (1999) (declining to consider an argument raised for the first time
    in the briefs). *Cf.*, *Building Owners and Managers Association
    International v. FCC*, 254 F.3d 89, 100 n.14 (D.C. Cir. 2001)
    (declining to address an issue raised cursorily in the brief).
    Specifically, in its briefs, AT&T maintains for the first time that
    the revenue-sharing arrangement between Beehive and Joy also
    violated section 201(b) by "evading the requirements" of TDDRA. AT&T
    Initial Brief at 14-16; AT&T Reply Brief at 9-12. In addition, in
    its briefs, AT&T argues for the first time that Beehive's practice
    of billing AT&T for traffic terminated to Joy violated the
    Commission's tariff regulations. AT&T Initial Brief at 10-13; AT&T
    Reply Brief at 8-9.

[^100]: ^?^ Beehive Complaint at 2, 9-10, 12-13, ¶¶ 5, 34-40, 54-61.
    *See* Beehive Supplemental Brief at 26-30; Beehive Supplemental
    Reply Brief at 12-18; *Beehive Telephone Co., Inc. and Beehive
    Telephone Inc. Nevada v. AT&T Corp.*, Opposition to Motion to
    Dismiss, File No. E-97-14 (filed June 4, 1997) at 4-5.

[^101]: ^?^ *See* section III.D, *supra.*

[^102]: ^?^ Beehive filed a petition for reconsideration of a staff
    discovery ruling regarding information about AT&T's TSAAs. *Beehive
    Telephone Co., Inc. and Beehive Telephone Inc. Nevada v. AT&T
    Corp.*, Petition For Reconsideration, File No. E-97-14 (filed Mar.
    26, 1998); *AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive
    Telephone Inc. Nevada*, and *Beehive Telephone Co., Inc. and Beehive
    Telephone Inc. Nevada v. AT&T Corp.*, Letter from Deena M. Shetler,
    Attorney, Enforcement Division, Common Carrier Bureau, FCC, to Peter
    H. Jacoby, Counsel for AT&T Corp., and Russell D. Lukas, Counsel for
    Beehive Telephone Co., File Nos. E-97-04, E-97-14 (dated Mar. 16,
    1998); *AT&T Corp. v. Beehive Telephone Co., Inc. and Beehive
    Telephone Inc. Nevada*, and *Beehive Telephone Co., Inc. and Beehive
    Telephone Inc. Nevada v. AT&T Corp.*, Letter from Deena M. Shetler,
    Attorney, Enforcement Division, Common Carrier Bureau, FCC, to Peter
    H. Jacoby, Counsel for AT&T Corp., and Russell D. Lukas, Counsel for
    Beehive Telephone Co., File Nos. E-97-04, E-97-14 (dated Mar. 24,
    1998). As this Order makes clear, such information was not germane
    to our resolution of any of the claims by either party. Thus, we
    dismiss Beehive's petition as moot.

[^103]: ^?^ Because we dismiss these claims on other grounds, we need
    not reach the arguably antecedent question whether these claims
    should be dismissed due to their conditional nature.

[^104]: ^?^ Beehive Complaint at 12-13, ¶¶ 54-61. *See* Beehive
    Supplemental Brief at 26-30; Beehive Supplemental Reply Brief at
    18-19.

[^105]: ^?^ *Total Telecommunications Services, Inc., and Atlas
    Telephone Company, Inc. v. AT&T Corp.*, Memorandum Opinion and
    Order, 16 FCC Rcd 5726, 5744 ¶ 41 (2001), *appeal pending*, AT&T
    Corp. v. FCC, Case Nos. 01-1188, 01-1201 (D.C. Cir., filed Apr. 20,
    2001).

[^106]: ^?^ Again, because we dismiss this claim on other grounds, we
    need not reach the arguably antecedent question whether this claim
    should be dismissed due to its conditional nature.

[^107]: ^?^ Beehive Complaint at 2, 10-11, ¶¶ 5, 41-53. *See* Beehive
    Supplemental Brief at 14-15, 30-32; Beehive Supplemental Reply Brief
    at 6-8, 23-27.

[^108]: ^?^ Because we deny these claims on other grounds, we need not
    reach the arguably antecedent question whether alleged violations of
    sections 1.17 and 1.729(b) of our rules --- which govern carriers'
    dealings with the Commission, not their provision of
    telecommunication services --- state a claim under section 208 of
    the Act. In addition, because we deny Beehive's Complaint in its
    entirety, we also dismiss as moot AT&T's Motion to Dismiss Beehive's
    Complaint. *See AT&T Corp. v. Beehive Telephone Co., Inc. and
    Beehive Telephone Inc. Nevada*, Motion to Dismiss, File No. E-97-14
    (filed May 20, 1997).