**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+---------------------------------+----+------------------------------+
| In the Matter of                | *  | Internal File No. CCB/CPD    |
|                                 | *) | 96-20                        |
| Joint Petition for Declaratory  | ** |                              |
| Ruling on the Assignment of     |    |                              |
| Accounts (Traffic) Without the  | *  |                              |
| Associated CSTP II Plans Under  | *) |                              |
| AT&T Tariff F.C.C. No. 2        | ** |                              |
|                                 |    |                              |
| On Referral by the United       | *  |                              |
| States Court of Appeals for the | *) |                              |
| Third Circuit                   | ** |                              |
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| Combined Companies, Inc.        | *  |                              |
|                                 | *) |                              |
| and                             | ** |                              |
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| Winback & Conserve Program,     | *  |                              |
| Inc.,                           | *) |                              |
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| One Stop Financial, Inc.,       |    |                              |
|                                 | *  |                              |
| Group Discounts, Inc.,          | *) |                              |
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| 800 Discounts, Inc.,            |    |                              |
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| Petitioners,                    | *) |                              |
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| AT&T Corp.,                     | *) |                              |
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+---------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: October 14, 2003 Released: October 17, 2003**

By the Commission:

# introduction

1.  This Memorandum Opinion and Order addresses the Joint Petition for
    Declaratory Ruling filed by Petitioners Winback & Conserve Program,
    Inc., One Stop Financial, Inc., Group Discounts, Inc., 800
    Discounts, Inc. (the Inga Companies) and Combined Companies, Inc.
    (collectively Petitioners). Petitioners' requests for declaratory
    relief stem from a question referred to us, under the doctrine of
    primary jurisdiction, by the United States Court of Appeals for the
    Third Circuit.[^1] The question referred by the Third Circuit is
    "'whether section 2.1.8 \[of AT&T's Tariff FCC No. 2\] permits an
    aggregator to transfer traffic under a \[tariffed\] plan without
    transferring the plan itself in the same transaction.'"[^2]
    Interpretation of AT&T's tariff is a matter within this agency's
    expertise.[^3] We conclude that AT&T's tariff did not prohibit such
    a movement of traffic and thus permitted it. Accordingly, AT&T's
    conduct was unauthorized and violated section 203 of the
    Communications Act. We explain our conclusions below.

# background

2.  AT&T is a telecommunications carrier regulated under Title II of the
    Communications Act of 1934, as amended (the Act). At the time these
    events occurred, AT&T was a dominant provider of interstate
    telecommunications services and, as such, offered the services at
    issue under tariffs, which it filed with the Commission pursuant to
    section 203 of the Act.[^4] The Inga Companies were non-facilities-
    based aggregator/resellers of AT&T's inbound 800 Wide Area
    Telecommunications Service (WATS).[^5] Prior to June 17, 1994, the
    Inga Companies completed and signed AT&T's "Network Services
    Commitment Form" for WATS under AT&T's Customer Specific Term Plan
    II (CSTP II), a tariffed plan, which offered volume discounts off
    AT&T's regular tariffed rates.[^6] The CSTP II was set forth in
    AT&T's Tariff FCC No. 2 (Tariff).[^7] The Inga Companies committed
    to aggregate \$54 million worth of 800 services per year under their
    nine CSTP II plans.[^8] This volume of traffic qualified for a
    discount of 28 percent off AT&T's regular tariffed rates -- a 23
    percent discount under the CSTP II plan, combined with an additional
    5 percent discount available under the tariffed Revenue Volume
    Pricing Plan (RVPP).[^9] The Inga Companies resold their AT&T's WATS
    service at a discount off AT&T's tariffed rates to third-party
    end-users, generally smaller business customers using 800 lines,
    which could not qualify individually for volume discounts.[^10]
    These small businesses were the Inga Companies' customers.[^11] The
    Inga Companies aggregated these end-users' 800 traffic under the
    CSTP II/RVPP.[^12]

3.  Section 2.1.8 of AT&T's Tariff FCC No. 2 provided for the transfer
    or assignment of tariff plans.[^13] In December 1994, the Inga
    Companies and CCI, a new or previously inactive company,[^14]
    executed certain Transfer of Service Agreement and Notification
    (TSA) forms transferring the nine Inga Company CSTP II/RVPP plans to
    CCI.[^15] They requested that AT&T permit the transfer of these
    plans to CCI.[^16] Although AT&T initially refused to accept the
    transfer unless CCI provided a deposit of \$13,540,000,[^17] the
    transfer ultimately was effected without a deposit, under a May 1995
    order of the United States District Court for the District of New
    Jersey.[^18] Thus, CCI was the legitimate transferee of the Inga
    Companies' CSTP II/RVPP plans and customer of AT&T.[^19]

4.  AT&T sold inbound and outbound services under Contract Tariff 516
    (CT 516) to PSE, an aggregator/reseller unrelated to either the Inga
    Companies or CCI.[^20] With an annual commitment of \$4 million,
    which included 15 million minutes of 800 services per year, the CT
    516 discount available to PSE was 66 percent off AT&T's regular
    tariffed rates.[^21] CCI wanted the CT 516 discount, which was
    significantly larger than that available under its CSTP II/RVPP
    plans. Accordingly, CCI and PSE jointly executed and submitted to
    AT&T nine TSA forms for each of the nine plans.[^22] At the bottom
    of each TSA, in handwriting, these parties directed AT&T to move the
    "traffic only" on each plan to PSE.[^23] The January 13 letter,
    under which these nine TSAs were forwarded, directs AT&T to "move
    the locations associated with these plans \[but\] not \... in any
    way to discontinue the plans."[^24] In this way, CCI and PSE
    attempted to move to PSE the end-user traffic associated with each
    of the nine CSI CSTP II/RVPP plans, but not to move the actual plans
    themselves.[^25] Having refused to recognize the original transfer
    from the Inga Companies to CCI, AT&T also refused to move the
    traffic from CCI to PSE.[^26]

5.  The Inga Companies and CCI sued AT&T in the United States District
    Court for the District of New Jersey in February, 1995, alleging
    violations of the Communications Act in connection with AT&T's
    refusal to accept the transfer from the Inga Companies to CCI; and
    refusal to move traffic from CCI to PSE.[^27] On plaintiffs' motion
    for a writ of peremptory mandamus (preliminary injunction) under 47
    U.S.C. § 406 (Mandamus to Compel Furnishing of Facilities), the
    district court entered a preliminary injunction in May 1995,
    ordering AT&T to accept the first transfer.[^28] To determine
    whether it should also order AT&T to move the traffic from CCI to
    PSE, the court requested, under the primary jurisdiction doctrine,
    that the Commission interpret a certain section of AT&T's
    tariff.[^29] Specifically, the district court referred to the
    Commission "the issue of the transfer of the aforesaid plans and/or
    their traffic as between Combined Companies, Inc. and Public Service
    Enterprises of Pennsylvania, Inc. and its compliance or not with the
    terms of the governing tariff."[^30]

6.  Neither party brought the primary jurisdiction question to the
    agency.[^31] Instead, the aggregators went back to the district
    court.[^32] On reconsideration, in a March 5, 1996 decision, the
    district court made its own substantive finding on the previously
    referred issue.[^33] Notwithstanding its intent to "defer to the FCC
    on the interpretation of the Tariff provisions governing plaintiffs'
    proposed transaction," but contemplating a Commission ruling
    favorable to the aggregators, the court entered a preliminary
    injunction pending outcome of the Commission determination, and
    ordered AT&T to "recognize the transfer" of traffic between CCI and
    PSE and to provide service at the CT 516 rates.[^34] AT&T appealed
    the district court's order to the Third Circuit, which, on May 31,
    1996, vacated the lower court's March 5 decision as inconsistent
    with the primary jurisdiction referral, and reordered the parties to
    bring the issue to the Commission.[^35]

7.  On July 15, 1996, the aggregators filed a petition with the
    Commission in which, "based on established Commission practice,
    policies, and precedents, the plain language of § 203 of the
    Communications Act of 1934, as amended, F.C.C. Rule 61.54(j), and
    Sections 201 and 202 of the Act," they sought declaratory rulings on
    four issues.[^36] By separate cover motion, the aggregators also
    sought expedited consideration of their petition for declaratory
    ruling because, they alleged, AT&T was unlawfully billing certain
    charges to the aggregators' end-users.[^37] AT&T filed Comments in
    Opposition on August 26, 1996, and Petitioners filed Reply Comments
    on September 23, 1996.[^38] On February 13, 2003, the Bureau
    released a Public Notice inviting comment on two discrete questions
    that were not squarely addressed by the parties on the prior
    record.[^39] Specifically, the Bureau first asked the parties to
    "comment on the nature of the relationship, if any, between AT&T and
    the end-user customers of AT&T's customers, under AT&T's Tariff FCC
    No. 2 generally, and specifically under the tariff provisions
    governing the RVPP and CSTP II Plans at issue in this matter."[^40]
    Second, the Bureau asked the parties to "comment on the remedy that
    AT&T's Tariff FCC No. 2 specifies that AT&T may exercise if AT&T has
    reason to believe that its customer is violating section 2.2.4.A.2
    of that tariff by '\[u\]sing or attempting to use WATS with the
    intent to avoid the payment, either in whole or in part, of any of
    the Company's tariffed charges by ... \[u\]sing fraudulent means or
    devices, tricks, \[or\] schemes.'"[^41] Comments were filed in
    response to this Public Notice.[^42]

# DISCUSSION

## Whether AT&T's Tariff Permitted the Movement of End-User Traffic Without The Plans

8.  The district court asked "whether section 2.1.8 \[of AT&T's Tariff\]
    permits an aggregator to transfer traffic under a plan without
    transferring the plan itself in the same transaction."[^43]
    Similarly, petitioners' first request for declaratory relief asks
    the Commission to find that "\[a\]t the time of the attempted
    transfer ... in or about January, 1995, by CCI to PSE of the end
    user traffic under the CSTP II plans held by CCI, neither Section
    2.1.8 of AT&T's Tariff F.C.C. No. 2, nor any other provision of
    AT&T's Tariff \... prohibited CCI from transferring that traffic
    without also transferring the CSTP II plans with which that traffic
    was associated."[^44] We conclude that section 2.1.8 of AT&T's
    tariff did not address or govern CCI's and PSE's request and that
    its respective tariffs with CCI and PSE permitted the movement of
    traffic at issue here.

### Section 2.1.8

9.  In court and before the Commission, AT&T argues that section 2.1.8
    of Tariff No. 2 did not authorize the transfer of traffic without a
    plan unless the transferee assumed the original customer's
    liability.[^45] In January 1995, when these events occurred, section
    2.1.8 of AT&T's Tariff provided that a customer could transfer
    "WATS" to a "new Customer" only if the new customer confirmed "in
    writing that it agrees to assume all obligations of the former
    Customer at the time of transfer or assignment."[^46] AT&T explains
    that in this context "WATS" means CSTP II plans.[^47] We conclude
    that section 2.1.8 of AT&T's Tariff did not address -- and therefore
    did not preclude or otherwise govern -- the movement of end-user
    traffic from one aggregator to another, as CCI and PSE sought to
    effect in this case.[^48] Section 2.1.8 concerned the wholesale
    transfer of "WATS" (which, according to AT&T itself, means "plans")
    from one customer to another. As such, its purpose was to maintain
    intact the balance of obligations and benefits between parties under
    the tariff when one customer stepped into the shoes of another.
    Thus, when, in December 1994, the Inga Companies transferred their
    CSTP II/RVPP plans to CCI, they were required to meet the conditions
    of section 2.1.8. Here, by contrast, CCI sought to move only the
    end-user traffic it had aggregated under its CSTP II out of that
    plan. PSE, in turn, sought to move that traffic into its CT 516. CCI
    did not seek to transfer the CSTP II/RVPP plans wholesale to PSE.
    Rather than a single transfer request, here CCI and PSE effectively
    made two requests: one by CCI to AT&T to decrease its traffic; and
    another by PSE to AT&T to increase its traffic. CCI and PSE retained
    the benefits and obligations of their respective agreements with
    AT&T. We note in this regard that both the forms submitted to AT&T
    and the agreement between CCI and PSE stated that CCI would continue
    to subscribe to its existing CSTP II plans.[^49] Thus, CCI still
    would have to meet its tariffed commitments, without the use of the
    traffic moved to PSE, and AT&T also would remain obligated to CCI
    under the terms of Tariff No. 2.[^50] The moved traffic would be
    used to meet PSE's CT 516 volume commitments and, once moved, would
    no longer be associated with CCI's CSTP II. If the traffic were
    moved away from CCI under Tariff 2, to PSE under Contract Tariff
    516, AT&T would get less money for the same traffic -- the traffic
    would be discounted 66 percent instead of 28 percent.[^51]
    Implementing the carriers' request required AT&T only to move
    traffic -- first, out of CCI's CSTP II, and second, into PSE's
    CT 516. As to whether the carriers' requests were permissible, we
    note that AT&T's tariffs with these carriers did not prohibit the
    addition or subtraction of traffic.[^52] Accordingly, in response to
    the district court's question, "whether section 2.1.8 \[of AT&T's
    Tariff\] permits an aggregator to transfer traffic under a plan
    without transferring the plan itself in the same transaction,"[^53]
    we conclude that section 2.1.8 of the tariff did not address or
    govern the movement of traffic without a plan and that AT&T's
    respective tariffs with CCI and PSE permitted it.

### The "Fraudulent Use" Provisions

10. Petitioners' first request for declaratory relief goes beyond
    section 2.1.8 and asks the Commission to find that "\[a\]t the time
    of the attempted transfer ... in or about January, 1995, by CCI to
    PSE of the end user traffic under the CSTP II plans held by CCI,
    neither Section 2.1.8 of AT&T's Tariff F.C.C. No. 2, *nor any other
    provision of AT&T's Tariff F.C.C. No. 2*, prohibited CCI from
    transferring that traffic without also transferring the CSTP II
    plans with which that traffic was associated."[^54] Here and before
    the district court, AT&T argues that the proposed "location-only
    transfer violated the 'fraudulent use' provisions of Section 2.2.4
    of its tariff," thus justifying AT&T's refusal to accept the
    transfer from CCI to PSE.[^55] It claims that the transfer from CCI
    to PSE "had both the purpose and the effect of avoiding the payment,
    in whole or in part, of tariffed shortfall ... charges"[^56] because
    CCI's entire revenue stream would transfer to PSE, but PSE would
    have no corresponding obligation to pay any shortfall charges under
    the CSTP II.[^57] Thus, AT&T argues "if only the traffic on the
    plans and not the plans themselves were transferred to PSE, *the
    liability for shortfall . . . charges attendant thereto would then
    be vested in CCI:* an empty shell."[^58] Further, "\[w\]ithout the
    revenue generated by the traffic under the plans, CCI would have no
    income and no means of backing the responsibilities it maintained
    after the CCI/PSE transfer of traffic."[^59] AT&T claims that, based
    upon statements made by Alfonse Inga, the owner of the Inga
    companies, it had reason to believe that CCI's proposed transfer was
    an attempt to avoid liability for shortfall charges under the
    Tariff.[^60] Accordingly, AT&T argues, it had the right under
    section 2.2.4 to refuse to accept the transfer to PSE.[^61]

11. Based upon our review of AT&T's tariff, we conclude that, even
    assuming that AT&T reasonably suspected a violation of the
    "fraudulent use" provisions of its tariff -- which we do not decide
    -- those provisions did not authorize AT&T to refuse to move the
    traffic from CCI to PSE. If AT&T had moved the traffic from CCI to
    PSE, then all of the traffic that CCI had used to meet its CSTP
    II/RVPP commitments would be associated with PSE's CT 516. Further,
    CCI (as well as the Inga companies[^62]), but not PSE, would
    continue to have been responsible for any shortfall obligations
    under the CSTP II/RVPP plans. Once all of its traffic was moved to
    PSE, CCI might have needed to amass new traffic in order to meet its
    commitments under its CSTP II plans. AT&T's apparent speculation
    that CCI would fail to meet these commitments and would be
    judgment-proof did not justify its refusal to transfer the traffic
    in question.

12. Even assuming that AT&T did have reason to believe that the proposed
    movement of traffic from CCI to PSE violated section 2.2.4 of its
    tariff, AT&T did not avail itself of the associated remedy that was
    specified in its tariff. Section 2.2.4, which AT&T cites in support
    of its argument, was titled "Fraudulent Use" and provided that \--

    The fraudulent use of, or the intended or attempted fraudulent use
    of, WATS is prohibited. The following activities constitute
    fraudulent use:

```{=html}
<!-- -->
```
A.  Using or attempting to use WATS with the intent to avoid the
    payment, either in whole or in part, of any of the Company's
    tariffed charges by:

    . . . .

    2\. Using fraudulent means or devices, tricks, \[or\] schemes
    \....[^63]

    Section 2.8.2 of the Tariff, titled "Interference, Impairment or
    Improper Use," however, specified the remedy that AT&T could employ
    if it suspected fraudulent use under section 2.2.4.[^64] That
    section provided that --

    The Company may take immediate action to *temporarily suspend
    service* when a Customer violation results in any of the following:

    . . . .

    \-- circumvents the Company's ability to charge for its services as
    specified in Section 2.2.4 (Fraudulent Use) preceding . . . .

    . . . .

    In such cases, the Company will make reasonable effort to give the
    Customer prior notice *before suspending service*.

    . . . .

    When a violation results in the temporary suspension of service ...
    \[this\] restriction\[\] will be removed when the Customer is in
    compliance with the \[tariffed\] regulations and so advises the
    Company.[^65]

    AT&T, however, did not temporarily suspend service to CCI. Instead,
    it simply refused, in perpetuity, to move the traffic to PSE.[^66]
    If AT&T suspected fraud, as it claims, it should have suspended
    CCI's service.[^67] It did not do so. AT&T's refusal to move the
    traffic was not the tariffed remedy for fraudulent use.

```{=html}
<!-- -->
```
13. Because AT&T did not act in accordance with the "fraudulent use"
    provisions of its tariff, which did not explicitly restrict the
    movement of end-user locations from one tariff plan to another, AT&T
    cannot rely on them as authority for its refusal to move the traffic
    from CCI to PSE. AT&T does not rely upon any other provisions of its
    tariff to justify its conduct.[^68] Accordingly, we grant
    Petitioners' first request for declaratory relief and find that, at
    the time CCI attempted to move to PSE the traffic that CCI had been
    using to satisfy its CSTP II commitments, neither Section 2.1.8 of
    AT&T's Tariff FCC No. 2, nor any other provision of AT&T's Tariff
    FCC No. 2, prohibited it from moving that traffic without the CSTP
    II plans.[^69]

## Whether a Tariff Revision May Have Retroactive Effect

14. In their second request for declaratory relief, petitioners ask the
    Commission to find that "\[u\]nder standard tariffing law,
    principles, policies, and as required by the plain language of
    Section 203 of the Act, AT&T had no legal basis and could not have
    effectively tariffed any changes or additions to Section 2.1.8 or
    any other published provision of its Tariff F.C.C. No. 2, subsequent
    to January 1995, which could have substantively affected CCI's right
    to assign the traffic under its CSTP II plans to PSE in January,
    1995."[^70] AT&T does not address the retroactive application of
    tariff revisions.[^71] We also do not understand AT&T to argue that
    any revisions to its tariff that became effective after January 1995
    govern the resolution of this matter. We decline to rule on this
    request because the issue is moot.

15. The Commission has broad discretion under the Administrative
    Procedure Act and Commission rules to decide whether a declaratory
    ruling is necessary to "terminate a controversy or remove
    uncertainty."[^72] When, as here, a petition for declaratory ruling
    derives from a primary jurisdiction referral, the Commission will
    seek, in exercising its discretion, to resolve issues arising under
    the Act that are necessary to assist the referring court. Resolution
    of this issue is not necessary to assist the district court. After
    AT&T refused to permit petitioners to move the traffic, it filed
    Transmittal 8179 with the Commission in February 1995, which sought
    to amend Tariff No. 2. The district court's May 1995 primary
    jurisdiction referral to the Commission was based, in part, upon
    AT&T's contention that the Commission's consideration of Transmittal
    No. 8179 would clarify whether CCI was entitled, under the tariff,
    to move the traffic without the plans to PSE.[^73] According to the
    record, however, AT&T ultimately withdrew Transmittal 8179 on June
    2, 1995.[^74] Thus, Transmittal 8179 never became effective.[^75]
    Since AT&T did not amend its tariff, our analysis of petitioners'
    retroactivity question would not assist the court in resolving this
    matter. Nor does either party explain how consideration of this
    question would resolve a controversy or remove any uncertainty. The
    issue is moot and, in our discretion, we decline to address it.

## Whether AT&T was Authorized to Refuse to Permit the Movement of Traffic From One Reseller to Another

16. Petitioners' third request for declaratory relief asks the
    Commission to find that "\[s\]ince neither Section 2.1.8 of AT&T's
    FCC Tariff No. 2, nor any other provision of AT&T's duly published
    tariff prohibited CCI from transferring that traffic without also
    transferring the CSTP II plans with which that traffic was
    associated ..., AT&T had no legal basis to refuse to accept the
    transfer ... of that traffic from CCI to PSE."[^76] We agree with
    petitioners that, because AT&T's tariff did not prohibit the
    movement of traffic without the plans, AT&T's refusal to move the
    traffic was unauthorized.

17. In 1995, AT&T, as well as all common carriers of interstate and
    foreign telecommunications, was required, under section 203 of the
    Act, to file with the Commission one or more "schedules" of its
    charges and the classifications, practices, and regulations
    affecting such charges.[^77] With respect to the services at issue
    in the instant proceeding, this "schedule" was AT&T's Tariff FCC
    No. 2. Once filed, a tariff is a public document.[^78] It defines
    the terms and conditions upon which a carrier offers and provides
    services to its customers.[^79] Tariffed charges, classifications,
    regulations or practices may be changed only after notice is given
    to the Commission and the public.[^80] The Commission regulates the
    substance of tariff provisions and is authorized to suspend or
    reject the effectiveness of a proposed tariff provision when it
    believes such provision will violate the Act.[^81] When, as here,
    service is provided pursuant to a filed tariff, the tariff controls
    the rights and responsibilities of the customer and the carrier, as
    a matter of law.[^82] Thus, the "filed tariff doctrine" requires
    carriers, as well as their customers, to abide by the terms of the
    tariff and precludes carriers from acting outside it.[^83] As we
    have discussed above, AT&T's tariff did not prohibit the movement of
    traffic without CSTP II plans. Assuming that AT&T reasonably
    suspected "fraudulent use" under section 2.2.4, the remedy under its
    tariff for the type of fraud it claims it suspected was suspension
    of service, not refusal to move the traffic. Accordingly, when AT&T
    availed itself of a remedy not "specified" in its tariff, that
    action was unauthorized. We grant petitioners' request for
    declaratory relief that AT&T had no legal basis to refuse to move
    the traffic from CCI to PSE.

## Whether AT&T Violated Sections 201, 202, 203 of the Act and Rule 61.54

18. In their fourth and final request for declaratory relief,
    petitioners ask the Commission to find that "AT&T's refusal to
    accept such transfer of traffic . . . was, therefore, in violation
    of AT&T's tariff, its obligations under Section 201, 202 and 203 of
    the Act and Rule 61.54 of the Commission's rules."[^84] In its
    Opposition, AT&T argues that "disputed material issues of fact
    concerning Petitioners' intent to defraud AT&T are at the heart of
    all four legal issues which CCI is asking the Commission to resolve,
    and thus preclude a declaratory ruling."[^85] Thus, it reasons, if
    petitioners wish to proceed before the Commission, they are required
    to do so through a formal complaint with a complete evidentiary
    record.[^86] We agree that declaratory relief is inappropriate for
    some of the issues raised by petitioners.[^87] We disagree, however,
    with AT&T's contention that *all* of the issues upon which
    petitioners seek declaratory relief -- or the court's primary
    jurisdiction referral[^88] -- involve disputed material issues of
    fact.[^89] The language of the tariff is undisputed. It is
    undisputed that petitioners requested that A&T move end-user traffic
    from CCI to PSE and it is undisputed that AT&T did not effect that
    move. These undisputed facts form the basis for our grants of
    declaratory relief.

19. Within this framework, we consider petitioners' remaining requests
    for relief. We go no further than petitioners' claim under section
    203, because we find it dispositive. Petitioners argue that, under
    the circumstances of this case, AT&T's refusal to move the end-user
    traffic from CCI to PSE violated section 203 of the Act.[^90]
    Subsection 203(c) forbids a carrier from employing or enforcing any
    classifications, regulations, or practices affecting its charges
    unless they are "specified" in the tariff and makes it unlawful for
    a carrier to deviate, in the rendition of tariffed services, from
    the charges, regulations, and practices set out in its filed
    tariff.[^91] We agree that, when AT&T availed itself of a remedy not
    "specified" under its tariff, it violated section 203 of the
    Act.[^92] As discussed in Section C above, pursuant to section 203,
    a carrier's tariff controls the rights and obligations of the
    carrier, which, as a matter of law, is required to abide by the
    tariffed terms and is precluded from acting outside it.[^93] AT&T's
    tariff did not prohibit the movement of traffic without plans. Thus,
    when AT&T availed itself of a remedy not "specified" in its tariff,
    that action violated subsection 203(c). Accordingly, we grant
    petitioner's request for declaratory ruling that AT&T violated
    section 203.

20. We do not reach petitioners' remaining claims under sections 201,
    202, and Commission Rule 61.54(j) in light of our conclusion that
    AT&T violated section 203 of the Act.[^94] As discussed above, the
    Commission has broad discretion under the Administrative Procedure
    Act and Commission rules to decide whether a declaratory ruling is
    necessary to "terminate a controversy or remove uncertainty."[^95]
    In this case, petitioners' requests for declaratory relief arose out
    of a primary jurisdiction referral, which asked the Commission to
    interpret a provision of AT&T's tariff. Our interpretation of the
    tariff coupled with the undisputed facts lead us to conclude that
    AT&T engaged in conduct unauthorized by its tariff and, accordingly,
    violated subsection 203(c) of the Act.

# conclusion

21. In sum, we conclude that AT&T's tariff did not preclude the movement
    of end-user traffic from CCI to PSE without the accompanying CSTP II
    plans. We also conclude that AT&T did not avail itself of the remedy
    specified in its tariff for suspected fraud and thus cannot rely
    upon the fraud sections of its tariff to justify its refusal to move
    the traffic. Accordingly, we conclude that AT&T's action in refusing
    to move the traffic was unlawful and violated subsection 203(c) of
    the Communications Act.

# ORDERING CLAUSES

22. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), 201,
    202, and 203 of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 154(i), (j), 201, 202, 203, and section 1.2 of the
    Commission's rules, 47 C.F.R. § 1.2, that the Joint Petition for
    Declaratory Ruling of Combined Companies, Inc. and Winback &
    Conserve Program, Inc., One Stop Financial, Inc., Group Discounts,
    Inc., 800 Discounts, Inc. IS GRANTED to the extent set forth herein,
    and is otherwise DENIED.

23. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), 201, and 202
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    (j), 201, 202, and section 1.2 of the Commission's rules, 47 C.F.R.
    § 1.2, that the Joint Motion for Expedited Consideration of the
    Joint Petition for Declaratory Ruling IS DISMISSED as moot.

    FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: *Combined Co., Inc., Winback and Conserve Program, Inc., One Stop
    Fin. Inc., 800 Discounts, Inc., and Group Discounts, Inc. v. AT&T
    Corp.*, No. 96-5185 (3d Cir. filed May 31, 1996)(*Third Circuit
    Opinion*); *see also* *Combined Companies, Inc., et al. v. AT&T
    Corp.*, Civil Action No. 95-908 (D.N.J. filed May 19, 1995)(*First
    District Court Opinion*); *Combined Companies, Inc., et al. v. AT&T
    Corp.*, Civil Action No. 95-908 (D.N.J. filed Mar. 5, 1996)(*Second
    District Court Opinion*).

[^2]: *See Third Circuit Opinion* at 3 (quoting *First District Court
    Opinion* at 15).

[^3]: *See Bell Atlantic-Delaware, Inc., et al. v. Global Naps, Inc.*,
    File No. E-99-22-R, Order on Reconsideration, 15 FCC Rcd 5997, 6005,
    para. 22 & n.55 (2000)(and cases cited therein); *rev. denied*, 247
    F.3d 252 (D.C. Cir. 2001), *cert denied*, 534 U.S. 1079 (2002).

[^4]: *See First District Court Opinion* at 2 n.2. Subsection 203(a) of
    the Communications Act requires every common carrier to file with
    the Commission "schedules," *i.e.*, tariffs, "showing all charges"
    and "showing the classifications, practices, and regulations
    affecting such charges." 47 U.S.C. § 203(a).

[^5]: *See Third Circuit Opinion* at 2; *First District Court Opinion*
    at 3.

[^6]: Joint Petition for Declaratory Ruling, Internal File No. CCB/CPD
    96-20 (filed July 15, 1996) (Petition) at 9; *see* Comments of AT&T
    Corp. in Opposition to Joint Petition for Declaratory Ruling and
    Joint Motion for Expedited Consideration, CCB/CPD 96-20 (filed Aug.
    26, 1996) (Opposition) at 4; *First District Court Opinion* at 3-4.

[^7]: *First District Court Opinion* at 3; *see generally* AT&T Corp.
    Further Comments, CCB/CPD 96-20 (filed Apr. 2, 2003) (AT&T Further
    Comments) at Attachment 1 (AT&T Tariff FCC No. 2 at § 3.3.1.Q. (AT&T
    800 Customer Specific Term Plan II), 18^th^ rev. p. 61.16 (eff. Dec.
    12, 1994), 6^th^ rev. p. 61.16.1 (eff. Mar. 11, 1994), 12^th^ rev.
    p. 61.17 (eff. Mar. 11, 1994)).

[^8]: *See First District Court Opinion* at 7, 8 n.8; *cf*. Petition at
    11 (Inga Companies committed to a volume of \$4 million per month).

[^9]: *See First District Court Opinion* at 3-5.

[^10]: *First District Court Opinion* at 3-4.

[^11]: *See First District Court Opinion* at 3; AT&T Further Comments at
    6-10 (citing, *inter alia*, *AT&T Corp. v. Winback and Conserve
    Program, Inc.*, File No. E-97-02, Memorandum Opinion and Order, 16
    FCC Rcd 16074, 16075, para. 3 (2001)).

[^12]: *First District Court Opinion* at 3-4.

[^13]: *First District Court Opinion* at 6; *see* Exhibit I to Petition
    (AT&T Tariff FCC No. 2 at § 2.1.8 (Transfer or Assignment), 14^th^
    rev. p. 20 (eff. Apr. 21, 1994)).

[^14]: *First District Court Opinion* at 7-8 & n.6; Opposition at 4.

[^15]: *See First District Court Opinion* at 7.

[^16]: *See First District Court Opinion* at 7.

[^17]: *First District Court Opinion* at 7. This constituted one quarter
    of the companies' annual revenue commitment. *Id.* at 8.

[^18]: *Combined Companies, Inc., etc. and Winback & Conserve Program,
    Inc., et al. v. AT&T Corp.*, Civil Action No. 95-908, Preliminary
    Injunction (filed May 19, 1995) (*First Preliminary Injunction*);
    *see generally* *First District Court Opinion*. The district court
    found that section 2.1.8 of AT&T's tariff, which governed the
    transfer of plans, was not conditioned upon the provision of a
    deposit and that the Inga Companies had otherwise met the
    requirements of section 2.1.8. *See First District Court Opinion* at
    20-21; *accord* 47 C.F.R. § 61.54(j)(1994)(special rules affecting a
    particular item must be specifically referred to in connection with
    such item).

[^19]: Because the district court ultimately found that AT&T's refusal
    to accept the transfer from the Inga Companies to CCI was improper
    and ordered AT&T to accept it, we assume the legitimacy of that
    transfer, retroactive to the time when it should have occurred.

[^20]: *See First District Court Opinion* at 4-5; Petition at 10-11.
    According to the record, PSE "combine\[d\] outbound calling services
    with its \[800\] IWATS resale operations, and thus -- presumably --
    can cater more to the overall needs of the small businesses it
    services." *First District Court Opinion* at 4-5.

[^21]: *See First District Court Opinion* at 5; AT&T Contract Tariff FCC
    No. 516 at § 3 (eff. Oct. 20, 1993).

[^22]: *First District Court Opinion* at 10; *see* Exhibit H to
    Petition.

[^23]: *See First District Court Opinion* at 10; Exhibit H to Petition.

[^24]: *See* Exhibit H to Petition.

[^25]: *See First District Court Opinion* at 10.

[^26]: *First District Court Opinion* at 10. *Compare* Petition at 13
    ("Initially AT&T asserted that CCI was not the 'customer of record'
    for the Plans (based on what the District Court later determined was
    AT&T's unlawful refusal to accept the Inga Companies' transfer per
    the TSAs as determined by the District Court), and, hence, had no
    authority to order the transfer of the traffic under the Plans to
    PSE's Contract Tariff 561") *with* Opposition at 5 ("AT&T objected
    on the grounds that Section 2.1.8 did not authorize the transfer of
    a plan unless the transferee, in this case PSE, assumes the original
    customer's liability and that the location-only transfer violated
    the 'fraudulent use' provisions of Section 2.2.4 of its tariff
    because the transfer had both the purpose and the effect of avoiding
    the payment, in whole or in part, of tariffed shortfall and
    termination charges." (footnote omitted)).

[^27]: *See generally First District Court Opinion*; Opposition at 5-6.

[^28]: *First District Court Opinion* at 1, 21; *see First Preliminary
    Injunction*.

[^29]: *See First District Court Opinion* at 15-17.

[^30]: *First Preliminary Injunction*; *see also First District Court
    Opinion* at 15 ("whether section 2.1.8 permits an aggregator to
    transfer traffic under a plan without transferring the plan itself
    in the same transaction").

[^31]: *See Third Circuit Opinion* at 3-4, 6.

[^32]: *See Third Circuit Opinion* at 3-4, 6.

[^33]: *See generally Second District Court Opinion*.

[^34]: *Second District Court Opinion* at 2 n.2, 16; *Combined
    Companies, Inc., et al. v. AT&T Corp.*, Civil Action No. 95-908,
    Preliminary Injunction (filed Mar. 5, 1996) (*Second Preliminary
    Injunction*).

[^35]: *See Third Circuit Opinion* at 7-8.

[^36]: *See* Petition at 7-8.

[^37]: Joint Motion for Expedited Consideration of the Joint Petition
    for Declaratory Ruling, Internal File No. CCB/CPD 96-20 (filed July
    15, 1996) (Joint Motion for Expedited Consideration).

[^38]: *See* Opposition; Joint Reply of Petitioners, CCB/CPD 96-20
    (filed Sept. 23, 1996) (Reply).

[^39]: *Further Comment Requested on the Joint Petition for Declaratory
    Ruling on the Assignment of Accounts (Traffic) Without the
    Associated CSTP II Plans Under AT&T Tariff F.C.C. No. 2,* Internal
    File No. CCB/CPD 96-20, Public Notice, 18 FCC Rcd 1887 (2003)
    (*Second Public Notice*). The deadline for filing further comments
    was extended twice. *See Joint Petition for Declaratory Ruling on
    the Assignment of Accounts (Traffic) Without the Associated CSTP II
    Plans Under AT&T Tariff F.C.C. No. 2,* Internal File No. CCB/CPD
    96-20, Order, 18 FCC Rcd 3284 (WCB 2003); *Joint Petition for
    Declaratory Ruling on the Assignment of Accounts (Traffic) Without
    the Associated CSTP II Plans Under AT&T Tariff F.C.C. No. 2,*
    Internal File No. CCB/CPD 96-20, Order, 18 FCC Rcd 5713 (WCB 2003).

[^40]: *Second Public Notice*, 18 FCC Rcd at 1887.

[^41]: *Second Public Notice*, 18 FCC Rcd at 1887-88.

[^42]: *See* Comments of 800 Discounts, Inc., One Stop Financial, Inc.,
    Winback and Conserve Program Inc., Group Discounts, Inc., CCB/CPD
    96-20 (filed Apr. 2, 2003); AT&T Further Comments; Comments of
    Joseph Kearney, CCB/CPD 96-20 (filed Apr. 2, 2003); Comments of
    Verizon, CCB/CPD 96-20 (filed Mar. 6, 2003); Reply Comments of 800
    Discounts, Inc., One Stop Financial, Inc., Winback and Conserve
    Program Inc., Group Discounts, Inc., CCB/CPD 96-20 (filed Apr. 15,
    2003); AT&T Corp. Further Reply Comments, CCB/CPD 96-20 (filed Apr.
    15, 2003); *see also* Letter from Alfonse G. Inga to Marlene Dortch,
    Secretary, FCC (filed Feb. 28, 2003); Letter from Alfonse G. Inga,
    President, The Inga Companies, to Judith Nitsche and Secretary, FCC
    (filed Apr. 23, 2003); Letter from Aryeh Friedman, Senior Attorney,
    AT&T, to Judith Nitsche, Assistant Division Chief, Pricing Policy
    Division, FCC (filed Apr. 28, 2003); Letter from Alfonse G. Inga,
    The Inga Companies, to Judith Nitsche and Secretary, FCC (filed May
    5, 2003).

[^43]: *First District Court Opinion* at 15; *see also Third Circuit
    Opinion* at 3. Similarly, in its ordering clause, the district court
    questioned whether the transfer of traffic without the CSTP II Plans
    "compli\[ed\] or not with the terms of the governing tariff." *First
    Preliminary Injunction* at 2.

[^44]: Petition at 7-8. Tracking the language of section 2.1.8,
    petitioners refer to the requested movement of traffic from CCI to
    PSE as a "transfer (assignment)." *See, e.g.,* Petition at 7-8
    (Requests No. 1, 3). AT&T uses the term "transfer." *See*
    Opposition. We find that the relocation of end-user traffic from CCI
    to PSE would simply have been a movement of traffic from one AT&T
    aggregator to another. We note that the agreement between CCI and
    PSE expressly provided for the return of accounts to CCI upon
    request. *See* Exhibit G to Petition. On a separate point, we note
    that the deposit provision of AT&T's tariff is not implicated here.
    In their first and third requests, petitioners seek, *inter alia*,
    declarations that AT&T had no basis to require a deposit to effect
    the movement of traffic without the associated plans. *See* Petition
    at 7-8. AT&T, however, does not argue that any deposit was required
    to effect the movement of traffic from CCI to PSE and notes that the
    deposit requirement related to the earlier transfer from the Inga
    Companies to CCI. *See* Opposition at 9 n.8.

[^45]: *See* Opposition at 5; *see also First District Court Opinion* at
    10.

[^46]: The full text of section 2.1.8 is as follows --

    > Transfer or Assignment -- WATS, including any associated telephone
    > number(s), may be transferred or assigned to a new Customer,
    > provided that:

    The Customer of record (former Customer) requests in writing that
    the Company transfer or assign WATS to the new Customer.

    The new Customer notifies the Company in writing that it agrees to
    assume all obligations of the former Customer at the time of
    transfer or assignment. These obligations include (1) all
    outstanding indebtedness for the service and (2) the unexpired
    portion of any applicable minimum payment period(s).

    The Company acknowledges the transfer or assignment in writing. The
    acknowledgement will be made within 15 days of receipt of
    notification.

    > The transfer or assignment does not relieve or discharge the
    > former Customer from remaining jointly and severally liable with
    > the new Customer for any obligations existing at the time of
    > transfer or assignment. These obligations include: (1) all
    > outstanding indebtedness for WATS, and (2) the unexpired portion
    > of any applicable minimum payment period(s). When a transfer or
    > assignment occurs, a Record Change Only Charge applies (see Record
    > Change Only, Section 3).
    >
    > Nothing herein or elsewhere in this tariff shall give any
    > Customer, assignee, or transferee any interest or proprietary
    > right in any 800 Service telephone number.

    Exhibit I to Petition (AT&T Tariff FCC No. 2, 14^th^ rev. p. 20,
    (eff. Apr. 21, 1994)).

[^47]: Opposition at 10.

[^48]: Ambiguities in a tariff are to be resolved against the carrier
    and favorably to customers. *The Associated Press Request for
    Declaratory Ruling*, File TS-11-74, Memorandum Opinion and Order, 72
    FCC 2d 760, 764-65, para. 11 (1979) (citing *Commodity News
    Services, Inc. v. Western Union*, 29 FCC 1208, 1213, para. 3,
    *aff'd*, 29 FCC 1205 (1960)).

[^49]: *See* Exhibits G and H to Petition.

[^50]: CCI and PSE did agree that the traffic could be returned to CCI
    upon 30 days written notice from CCI that AT&T required CCI to meet
    its commitments. *See* Exhibit G to Petition. Accordingly, at least
    theoretically, the traffic might have been returned to CCI at some
    point to enable it to meet any CSTP II obligations. *Cf.* Reply at
    10 (arguing CCI would receive more net income, and thus have more
    money available to pay any charges, after the traffic was moved to
    PSE). We do not speculate whether the traffic ever would have been
    moved back or whether it or some other development would have
    satisfied CCI's CSTP II commitments because AT&T did not move the
    traffic from CCI to PSE.

[^51]: *See First District Court Opinion* at 5. Exhibit G to the
    Petition, a letter agreement between CCI and PSE dated January 16,
    1995, explains that, once the traffic was moved: (1) CCI's end-users
    (formerly the Inga Companies' end-users) would "be billed by AT&T at
    the prevailing AT&T Tariff 2 CSTP rates, less twenty three percent
    (23%) Customer Specific Term Plan (CSTP) discount, and 5.5% Revenue
    Volume Pricing Plan (RVPP) discount"; (2) CCI would get 80 percent
    "earned credit" for this traffic from PSE; (3) CCI would continue to
    be responsible to AT&T for any commitment associated with the CSTP
    II Plans (which would not be discontinued); and (4) PSE would assist
    in moving accounts back to CCI upon written notice from CCI that
    AT&T required CCI to meet its commitments. *See* Exhibit G to the
    Petition. Thus, the traffic would be discounted 66 percent instead
    of 28 percent and the end-users would receive a discount off AT&T's
    standard tariffed rates greater than the portion of the 28 percent
    they had received when their traffic was associated with the CSTP II
    plan. *See First District Court Opinion* at 3-5. The discount
    differential would be apportioned between CCI and PSE according to
    their letter agreement. *See also* n.Error: Reference source not
    found, *infra*.

[^52]: *See generally* AT&T Tariff FCC No. 2; AT&T Contract Tariff FCC
    No. 516. As AT&T concedes, the end-users or "locations," were CCI's
    customers, not AT&T's. *See* AT&T Further Comments at 6-10 (citing,
    *inter alia*, *AT&T Corp. v. Winback & Conserve Program, Inc.*, 16
    FCC Rcd at 16075, para. 3; *First District Court Opinion* at 3);
    *see also MCI Telecommunications Corp v. AT&T*, File No. E-90-28,
    Order, 7 FCC Rcd 5096, 5100, para. 20 (CCB 1992). Because these
    end-users did not choose AT&T as their primary interexchange
    carrier, AT&T had neither proprietary interest in these individual
    end-user locations nor an expectation of revenue from them. *See
    Hi-Rim Communications, Incorporated v. MCI Telecommunications
    Corporation*, File No. E-96-14, Memorandum Opinion and Order, 13 FCC
    Rcd 6551, 6559 para. 13 (CCB 1998). Accordingly, AT&T could not
    refuse to move them out of CCI's CSTP II and into PSE CT 516. The
    fact that CCI sought to move all of its end-user locations, rather
    than just one or a few locations, did not confer a right on AT&T
    where none otherwise existed.

[^53]: *First District Court Opinion* at 15.

[^54]: Petition at 7-8 (emphasis added); *see also* n.Error: Reference
    source not found, *supra*.

[^55]: Opposition at 5 (footnote omitted); *see also First District
    Court Opinion* at 10.

[^56]: Opposition at 5. Although AT&T also argues that the move also
    avoided the payment of tariffed *termination* charges, *id.*, it
    separately states that termination liability (payment of charges
    that apply if a term plan is discontinued before the end of the
    term) is not at issue here. Opposition at 3 n.1. That is consistent
    with the facts of this matter; petitioners never terminated their
    plans. Accordingly, termination charges are not at issue in this
    matter.

[^57]: Opposition at 5, 12.

[^58]: *First District Court Opinion* at 10 (emphasis added); *see*
    Opposition at 12.

[^59]: *First District Court Opinion* at 10; *see* Opposition at 12.

[^60]: Opposition at 5, 11-12.

[^61]: Opposition at 5; AT&T Further Comments at 10-11.

[^62]: *See First District Court Opinion* at 9.

[^63]: *See* Exhibit 7 to Reply; Attachment 4 to AT&T Further Comments
    (AT&T Tariff FCC No. 2 at § 2.2.4 (Fraudulent Use), 11^th^ rev. p.
    21 (eff. July 28, 1994), 5^th^ rev. p. 22 (eff. July 28, 1994));
    *see also* Opposition at 5, 9-14; AT&T Further Comments at 10.

[^64]: For purposes of this discussion, we use the term "fraud" to mean
    the type of conduct described in AT&T's tariff rather than conduct
    that would meet a legal definition of fraud.

[^65]: *See* AT&T Further Comments at Attachment 5 (AT&T Tariff FCC No.
    2 at § 2.8.2 (Interference, Impairment or Improper Use), 6^th^ rev.
    p. 44 (eff. July 28, 1994)) (emphasis added); *see also id*. § 2.8.1
    ("General -- The Company may take immediate action to protect its
    services or interests when certain regulations contained in this
    tariff are violated. The specific regulations involved and the
    action(s) which will be taken by this Company are as specified in
    2.8.2, 2.8.3 and 2.8.4 following."). We reject AT&T's argument that
    these provisions authorized AT&T to "suspend the customer's *right
    to transfer* service." *See* Opposition at 11 n.11 (emphasis added);
    *see also* AT&T Further Comments at 11. Pursuant to Rule 61.2,
    titled "Clear and explicit explanatory statements," as in effect in
    January 1995, "\[i\]n order to remove all doubt as to their proper
    application, all tariff publications must contain clean \[sic\] and
    explicit explanatory statements regarding the rates and
    regulations." 47 C.F.R. § 61.2 (1994). It is a well settled rule of
    tariff interpretation that "'\[t\]ariffs are to be interpreted
    according to the reasonable construction of their language; neither
    the intent of the framers nor the practice of the carrier controls,
    for the user cannot be charged with knowledge of such intent or with
    the carrier's canon of construction.'" *Associated Press Request for
    a Declaratory Ruling*, 72 FCC 2d at 764-65, para. 11 (quoting
    *Commodity News Services, Inc. v. Western Union*, 29 FCC at 1213,
    para. 2). Accordingly, if AT&T intended the term "temporarily
    suspend service*"* to mean "permanently suspend the right to move
    traffic to another Customer" it should have said so. To quote the
    district court, "Words mean what they say. Rules should not be
    changed in the middle of the game; and certainly not without
    notice." *First District Court Opinion* at 21.

[^66]: This enabled AT&T to continue collecting revenue on the CSTP II
    traffic aggregated by CCI and at the higher CSTP II rate, rather
    than the CT 516 rate. Under the billing arrangement between AT&T and
    petitioners, AT&T billed the end-user directly, calculating into the
    bill a secondary discount, which the aggregator allotted to the
    end-user in question. AT&T then paid the aggregator the difference
    between the aggregator's CSTP II/RVPP discount and the percentage
    discount allotted to the end-user. The sum remitted by AT&T to the
    aggregator constituted the aggregator's income, from which it
    derived its operating costs and profits. *First District Court
    Opinion* at 4; *see also* Petition at 10. If AT&T had suspended
    service as its tariff permitted, it would not have collected any
    revenue at all under these accounts, rather than, as it did,
    continue to collect under the CSTP II. Although suspension was
    clearly a less attractive alternative than continuing to collect
    revenue at the CSTP II rates, suspension was the only remedy
    available to AT&T under the terms of its tariff for the type of
    "fraud" AT&T alleges it suspected.

[^67]: As discussed in n.Error: Reference source not found, *supra*,
    Commission Rule 61.2 requires that tariff provisions be explicit.
    Rule 61.54(j) further required that "\[a\] special rule, regulation,
    exception or condition affecting a particular item or rate *must be
    specifically referred to in connection with such item or rate."* 47
    C.F.R. § 61.54 (1994) (emphasis added). Consistent with these rules,
    section 2.8 of AT&T's tariff specified the precise remedy to be
    applied upon the occurrence of different enumerated events. For
    example, section 2.8.2 provided that when a customer failed to
    comply with sections 2.2 (Use), 2.7.2.C (Interference and Hazard),
    2.7.8.A (Answer Supervision), 2.7.8.D (Customer-provided
    Communications System Failures), or 2.7.9 (Minimum Protection
    Criteria), the remedy was to deny requests for additional service
    and/or temporarily suspend service "on ten days' written notice by
    certified U.S. Mail to the Customer." *See* AT&T Further Comments at
    Attachment 5 (AT&T Tariff FCC No. 2 at § 2.8.2, 6^th^ rev. p. 44
    (eff. July 28, 1994)). Section 2.8.3 provided for disconnection of
    service and/or denial of requests for additional WATS in the event
    of a violation of section 2.5.3, governing nonpayment of charges.
    *See* Attachment 5 to AT&T Further Comments (AT&T Tariff FCC No. 2,
    4^th^ rev. p. 44.1 at § 2.8.3 (eff. Aug. 11, 1994)). Section 2.8.4
    permitted AT&T, "immediately and upon written notice to the
    Customer," to "restrict, suspend or discontinue providing ...
    service" for violations of section 2.2.3.C or D. *Id.*

[^68]: *See* Opposition at 10-14; AT&T Further Comments at 3-5, 10-11.

[^69]: *See* Petition at 7-8.

[^70]: Petition at 8.

[^71]: *See generally* Opposition; AT&T Further Comments.

[^72]: 5 U.S.C. § 554(e); 47 C.F.R. § 1.2; *see also* 47 U.S.C. §§
    154(i), (j); *Yale Broadcasting Co. v. FCC*, 478 F.2d 594, 602
    (D.C.Cir.), *cert denied*, 414 U.S. 914 (1973).

[^73]: *See First District Court Opinion* at 12, 16-17; *Second District
    Court Opinion* at 3-4, 13; *see also* Petition at 14-16 & n.7
    (quoting AT&T's Brief filed in 1995 with the district court
    ("Transmittal 8179 ... make\[s\] explicit AT&T's implicit rights
    under the tariff. Accordingly, the proceeding in the FCC will
    resolve that issue ...."). The district court found that *Mical
    Communications, Inc. v. Sprint Telemedia, Inc.*, 1 F.3d 1031 (10^th^
    Cir. 1993), was persuasive authority on one of the factors relevant
    to the primary jurisdiction referral: whether a decision by the
    court prior to an Commission response to a petition pending before
    that agency might result in conflicting decisions. *See First
    District Court Opinion* at 14 n.10; *see also* Petition at 14-15 n.7
    (quoting AT&T's Brief filed in 1995 with the district court). A
    tariff transmittal, however, is a different kind of administrative
    filing than the petition for declaratory ruling, *see Mical*, 1 F.3d
    at 1037, that was at issue in the *Mical* case. As we discuss in
    Section C, below, a tariff transmittal is a carrier-initiated
    document which, if not withdrawn or deferred by the carrier, or
    suspended or rejected by the Commission, becomes effective, *i.e.*,
    modifies the tariff, within a certain number of days from the
    transmittal filing date. *See* 47 U.S.C. § 203(a), (b); 47 C.F.R. §
    61.58(a), (b). Until the transmittal becomes "effective" it is not
    part of the tariff. In the interim, the carrier has the power to
    defer the effective date of a particular transmittal, file an
    amended version of it, or, as AT&T did in this matter, withdraw it.

[^74]: *Second District Court Opinion* at 4.

[^75]: *See Second District Court Opinion* at 4.

[^76]: Petition at 8; *see also supra* n.Error: Reference source not
    found.

[^77]: 47 U.S.C. § 203.

[^78]: 47 U.S.C. § 203(a).

[^79]: *See, e.g., Brown v. MCI WorldCom Network Services, Inc.*, 277
    F.3d 1166, 1170 (9^th^ Cir. 2002); *AT&T v. City of New York*, 83
    F.3d 549, 552 (2^nd^ Cir. 1996)(citing 47 U.S.C. § 203(a)).

[^80]: 47 U.S.C. § 203(b)(1).

[^81]: 47 U.S.C. § 204.

[^82]: *Lowden v. Simonds-Shields-Lonsdale Grain Co.*, 306 U.S. 516, 520
    (1939) (cited in *Brown*, 277 F.3d at 1170; *ICOM Holding Inc. v.
    MCI WorldCom*, 238 F.3d 219, 221 (2^nd^ Cir. 2001)).

[^83]: *See AT&T v. Central Office Telephone*, 524 U.S. 214, 222-23
    (1998); *MCI WorldCom v. FCC*, 209 F.3d 760, 762 (D.C. Cir. 2000).
    The "filed tariff doctrine" has been applied frequently to preclude
    customers from enforcing alleged carrier promises that are not
    specified in the tariff. *See, e.g., Central Office Telephone*, 524
    U.S. 214; *ICOM*, 238 F.3d at 221-23; *Marco Supply Co. v. AT&T
    Communications, Inc.*, 875 F.2d 434, 436 (4th Cir. 1989).

[^84]: Petition at 8.

[^85]: Opposition at 14; *see also* AT&T Further Reply at 7.

[^86]: *See* Opposition at 14, 19.

[^87]: For example, petitioners claim that AT&T engaged in unlawful
    discrimination in violation of section 202 because its consistent
    practice was to permit aggregators to transfer locations without
    plans. *See* Petition at 23, 25. Petitioners also argue that AT&T
    engaged in an unreasonable practice in violation of section 201
    because, when it refused to effect the transfer of locations, it
    enforced an unwritten rule. *See* Petition at 22-23. Petitioners
    filed voluminous documents with the Commission, many of which also
    were filed with the district court, which petitioners claim support
    their theory of the case. AT&T has not attempted to rebut these
    individual claims, asserting, instead, that the facts regarding
    these claims are disputed and arguing that declaratory relief is not
    appropriate when all relevant facts are not clearly developed before
    the Commission and essentially undisputed. *See Cascade Utilities,
    Inc., American Telephone and Telegraph Company Petition for
    Declaratory Ruling*, Memorandum Opinion and Order, 8 FCC Rcd 781,
    782 para. 11 (CCB 1993) (cited in Opposition at 10 (additional
    citations omitted)). As noted above, we agree that declaratory
    relief is inappropriate when the facts are disputed. Accordingly, we
    deny all requests not specifically granted. In accordance with the
    discretion allowed us in a declaratory proceeding, moreover, we see
    no need to attempt to resolve the disputed issues through a formal
    complaint proceeding before the Commission, as AT&T proposes. Given
    our conclusion that AT&T violated section 203 of the Act, it is
    unclear what additional fact-finding on these issues is necessary.
    Assuming that further inquiry is appropriate, efficiency favors
    their resolution in the district court where the evidentiary record
    already has been developed. That is consistent with petitioners'
    original choice of forum for this dispute, with petitioner's
    objective in this proceeding, *see* Reply at i ("Any factual issues
    which need to be addressed in order to apply the tariff, after the
    tariff is interpreted by the Commission, can be addressed by the
    District Court, which has already compiled an extensive factual
    record in this case"), 14, and with the court's primary jurisdiction
    referral. The district court proceeding is still pending and the
    parties have presented evidence in that forum, *inter alia*, in the
    course of a two-day hearing.

[^88]: *See* Opposition at 9.

[^89]: *See* Opposition at 14.

[^90]: Petition at 22-23, 25-26. Specifically, petitioners argue that
    AT&T failed to follow its tariff, that it applied and enforced
    non-tariffed regulations and conditions, and that it failed to
    tariff the regulations and conditions that it followed. Petitioners
    argue that this conduct also violates Rule 61.54(j).

[^91]: 47 U.S.C. § 203(c); *see Central Office Telephone*, 524 U.S. 214.

[^92]: 47 U.S.C. § 203(c).

[^93]: *See* nn.Error: Reference source not found-Error: Reference
    source not found, *supra*, and accompanying text.

[^94]: *See also* n.Error: Reference source not found, *supra*. We also
    decline to address issues concerning AT&T's shortfall charges in
    this declaratory proceeding. In the Joint Motion for Expedited
    Consideration, which was filed on July 15, 1996, petitioners argued
    that AT&T unlawfully billed shortfall charges to CCI's end users in
    June of 1996. *Joint Motion for Expedited Consideration of the Joint
    Petition for Declaratory Ruling on the Assignment of Accounts
    (Traffic) Without the Associated CSTP II Plans Under AT&T Tariff
    F.C.C. No. 2,* Internal File No. CCB/CPD 96-20, Public Notice, 11
    FCC Rcd 8738 (1996); *see also* Joint Motion for Expedited
    Consideration at 2 (citations omitted). After receiving AT&T's bills
    for shortfall charges, 190 of CCI's end users sent letters to the
    Commission in June and early July of 1996. The Consumer Protection
    Branch of the Enforcement Division of the Common Carrier Bureau
    informed these end users that their letters would be treated as
    informal comments in this declaratory ruling proceeding. After the
    original billing, however, in a letter dated June 27, 1996, AT&T
    informed CCI's end-users that the shortfall charges would be
    "transferred to a bill directed to CCI itself." AT&T filed a copy of
    this letter with the Commission in a section 208 formal complaint
    proceeding that it filed against petitioner Winback & Conserve in
    October 1996. *See* Complaint, Exhibit A, Attachment E, *AT&T Corp.
    v. Winback and Conserve Program, Inc.*, E-97-02 (filed Oct. 25,
    1996). Accordingly, we surmise that AT&T made no further attempt to
    bill or collect these charges from CCI's end-users and therefore
    conclude that the propriety of imposing shortfall charges on CCI's
    end-users is a moot issue. *See id*.; *see also AT&T Corp. v.
    Winback and Conserve Program, Inc.*, 16 FCC Rcd at 16076-77, para.
    8. With respect to petitioners' argument that AT&T's CSTP II
    shortfall charges set forth in Tariff No. 2 are facially
    unreasonable, we find this issue -- which was not referred to us by
    the district court -- to be irrelevant to our conclusion that AT&T
    violated its tariff. *See* Section B, *supra*; *see also* n.Error:
    Reference source not found, *supra.* Finally, we refuse the parties'
    request that we declare whether "pre-June 17, 1994 CSTP II plans, as
    are involved here, may never have shortfall charges imposed, as long
    as the plans are restructured prior to each one-year anniversary."
    *See* Joint Motion for Expedited Consideration at 2; Opposition at
    14-15; Reply at 25. Declaratory relief on this issue -- which also
    was not referred to us by the district court -- is inappropriate
    because whether CCI's plans were pre- or post-June 17, 1994 plans is
    a disputed fact. *Compare id*. *with* Opposition at 14 n.13*.*

[^95]: 5 U.S.C. § 554(e); 47 C.F.R. § 1.2; *see also* 47 U.S.C. §§
    154(i), (j).