Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | E-99-01 and 99-01A           |
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| Commonwealth of Virginia State   | ) |                              |
| Corporation Commission,          | * |                              |
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| Complainant,                     |   |                              |
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| MCI Telecommunications           | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** May 16, 2000 **Released:** May 19, 2000

By the Commission:

# Introduction

1.  In this Memorandum Opinion and Order, we grant in part one of two
    formal complaints brought by the Commonwealth of Virginia State
    Corporation Commission (VSCC) against MCI Telecommunications
    Corporation (MCI) pursuant to section 208 of the Communications Act
    of 1934, as amended (Act).[^1] Both complaints arise out of the fact
    that, in the first half of 1998, MCI assessed its Federal Universal
    Service Fee (FUSF) and National Access Fee (NAF), in part, on the
    basis of charges incurred by Virginia customers in using the
    services of a Virginia intrastate toll carrier, MCI
    Telecommunications Corporation of Virginia (MCI-Virginia). In its
    First Complaint, VSCC alleges that MCI's federal tariff did not
    state that the calculation of the FUSF and NAF would be based, in
    part, on MCI-Virginia charges, and that MCI therefore violated
    section 203 of the Act.[^2] In addition, VSCC alleges that MCI
    violated section 2(b) of the Act[^3] and the Commission's *Universal
    Service Order*.[^4] In its Second Complaint, VSCC repeats its
    allegation that MCI's inclusion of MCI-Virginia charges in its
    calculation of the FUSF and NAF violated section 203 of the Act, and
    adds that MCI also violated sections 201(b) and 202 of the Act.[^5]

2.  We grant VSCC's claim in the First Complaint that MCI violated
    section 203 of the Act, because we find that MCI's tariff did not
    state that the FUSF and NAF would be assessed on the basis of
    MCI-Virginia charges. Because we grant VSCC's claim that MCI
    violated section 203 of the Act, we need not reach the remaining
    claims asserted in MCI's First and Second Complaints.

# BACKGROUND

3.  Much of the factual and procedural background relevant to this Order
    is described in a previous order issued in this proceeding.[^6]
    Consequently, we incorporate that background in this Order.
    Nonetheless, as described below, a few background matters bear
    repetition, and a few new matters merit mention.

    **A. The Underlying Facts**

4.  VSCC regulates intrastate telecommunications services and companies
    within the Commonwealth of Virginia.[^7] Consequently, VSCC
    qualifies as a "State commission" within the meaning of sections
    3(41) and 208(a) of the Act.[^8]

5.  MCI is a corporation organized under the laws of the State of
    Delaware. MCI provides interstate and international
    telecommunications services to customers in Virginia and in every
    other state in the United States, pursuant to tariffs on file with
    the Commission.[^9]

6.  MCI-Virginia is a wholly-owned subsidiary of MCI organized under the
    laws of the Commonwealth of Virginia. MCI-Virginia provides
    intrastate long distance telecommunications services to customers in
    Virginia, pursuant to tariffs on file with VSCC.[^10]

7.  In the *Universal Service Order,* the Commission required interstate
    carriers to contribute to the universal service programs identified
    in section 254 of the Act. With respect to the support of eligible
    schools, libraries and health care providers, the Commission
    concluded that it would assess carriers' contributions on the basis
    of their gross telecommunications revenues, including intrastate
    revenues.[^11] In the *First Access Charge Reform Order,* the
    Commission authorized certain local exchange carriers to impose a
    "presubscribed interexchange carrier charge" (PICC) upon
    interexchange carriers such as MCI for use of the local telephone
    network to initiate and terminate long distance calls.[^12]

8.  In January 1998, after the Commission's release of these two orders,
    MCI amended its Tariff F.C.C. No. 1 (Tariff) to add two charges that
    the Tariff would ultimately identify as the FUSF and NAF.[^13] MCI
    states that the purpose of the FUSF was to recover its universal
    service contributions, and the purpose of the NAF was to recover its
    PICC costs. MCI also states that the FUSF and NAF were imposed only
    on subscribers who had incurred interstate charges during the
    applicable billing period.[^14]

9.  In imposing the NAF and the FUSF (with respect to certain plans),
    the Tariff stated that "a charge equal to \[a specified\] percent of
    monthly MCI service usage charges will be applied to invoices of
    customers of \[enumerated plans\]."[^15] With respect to certain
    other plans, the Tariff in imposing the FUSF stated that "a charge
    equal to 4.4 percent of invoiced charges for MCI service will be
    applied to invoices of customers of \[enumerated plans\]."[^16] The
    Tariff was subsequently amended to add language stating that the
    FUSF and NAF would "be calculated based upon the rates \[specified\]
    ... as applied to the customer's total domestic and international
    usage"[^17] and, later, to define "usage charges" as "all tariffed
    charges appearing on a customer's invoice."[^18] In addition,
    through a series of amendments culminating on June 5, 1998, the
    Tariff came to describe the FUSF as "a charge equal to \[4.4 or 5\]
    percent of total \[intrastate, interstate\] and international MCI
    service usage charges ...". [^19] Ultimately, however, MCI amended
    the Tariff to provide that the NAF would be imposed as a flat fee,
    and that the FUSF would be calculated as a percentage only of
    interstate and international usage. These changes were effective
    April 2, 1998 with respect to the NAF, [^20] and August 1, 1998 with
    respect to the FUSF.[^21]

10. The Tariff's definition section states that the word "MCI" means
    "MCI Telecommunications Corporation and/or one or more Concurring
    Carriers." The only "Concurring Carrier" listed in the Tariff is
    "Western Union International, Inc."[^22]

11. From January 1, 1998 to April 1, 1998 in the case of the NAF, and
    from January 1, 1998 to August 1, 1998 in the case of the FUSF, MCI
    calculated and imposed these fees not only as a percentage of
    charges incurred by Virginia customers in using MCI's interstate
    services, but also as a percentage of charges incurred by Virginia
    customers in using MCI-Virginia's intrastate services.[^23]

    **B. Procedural History**

12. VSCC filed its First Complaint on October 7, 1998. VSCC alleged that
    MCI violated section 203 of the Act because the Tariff did not state
    that the calculations of the NAF or FUSF would be based, in part, on
    intrastate/MCI-Virginia charges. VSCC also alleged that, by
    including intrastate (*i.e*., MCI-Virginia) charges in its
    calculation of the FUSF, MCI violated the *Universal Service
    Order*'s mandate that carriers recover their contributions only
    through interstate rates. Finally, VSCC asserted that MCI's
    inclusion of intrastate charges in the calculation of the NAF and
    FUSF violated section 2(b) of the Act.

13. On March 22, 1999, the Commission released its *March 1999 Order*.
    The Commission denied VSCC's claims that, by including
    intrastate/MCI-Virginia charges in its calculation of the FUSF and
    NAF, MCI violated the *Universal Service Order* and section 2(b) of
    the Act. The Commission severed for later disposition VSCC's
    remaining claim that MCI violated section 203 of the Act.[^24]

14. On May 10, 1999, VSCC petitioned the United States Court of Appeals
    for the Fourth Circuit for review of those portions of the *March
    1999 Order* that denied VSCC's claims.[^25] On July 30, 1999, while
    the petition was pending, the United States Court of Appeals for the
    Fifth Circuit reversed a portion of the *Universal Service Order*.
    [^26] The Fifth Circuit found, among other things, that the
    Commission did not have authority to include intrastate revenues in
    its assessment of universal service contributions, as so doing
    "constitutes a 'charge ... in connection with intrastate
    communication service' \[within the meaning of section 2(b) of the
    Act\]." The Fifth Circuit also reversed on jurisdictional grounds
    the Commission's assertion in the *Universal Service Order* that it
    had the authority to refer carriers to the states to seek permission
    to recover intrastate contributions to the universal service fund
    from intrastate rates.[^27] By order dated August 18, 1999, the
    Fourth Circuit, on the Commission's motion, remanded VSCC's petition
    for review to the Commission for further proceedings "in light of
    the recent 5th Circuit decision in *Texas Office of Public Utility
    Counsel v. FCC*".[^28]

15. On December 30, 1999, VSCC filed its Second Complaint. The Second
    Complaint, like the First Complaint, was founded on VSCC's objection
    to the fact that MCI included MCI-Virginia charges in its
    calculations of the FUSF and NAF. VSCC alleged that MCI violated
    section 203 of the Act and the filed rate doctrine, asserting that
    the Tariff did not \-- and lawfully could not \-- include
    MCI-Virginia/intrastate charges in the calculation of the FUSF and
    NAF. VSCC alleged further that MCI violated section 201(b) of the
    Act because it "app\[lied\] interstate charges and practices to
    intrastate communications."[^29] Finally, VSCC asserted that MCI's
    assessing the FUSF and NAF on the basis of Virginia customers'
    MCI-Virginia charges was an unjust and unreasonable discrimination
    in violation of section 202 of the Act.[^30]

# DISCUSSION

**A. MCI Violated Section 203 by Inaccurately Tariffing the FUSF and
NAF**

16. We find that, as alleged in the First Complaint, MCI violated
    section 203 of the Act. In particular, we find that MCI violated
    section 203(a) of the Act, which requires carriers to file tariffs
    with the Commission "showing all charges ...and showing the
    ...practices and regulations affecting such charges." We also find
    that MCI violated section 203(c)(1) of the Act, which provides that
    no carrier shall "charge, demand, collect or receive a greater or
    less or different compensation" than specified in its Tariff.[^31]

17. For approximately six months in 1998, MCI's NAF and FUSF were
    assessed as a percentage of Virginia customers' MCI and
    *MCI-Virginia* charges. Yet MCI's Tariff stated that these fees
    would be assessed as a percentage only of customers' *MCI* charges.
    The Tariff described the NAF and FUSF as "a charge equal to \[a
    specified\] percent of monthly *MCI* service usage charges," or as
    "a charge equal to \[a specified\] percent of invoiced charges for
    *MCI* service" \-- and defined "MCI" as "MCI Telecommunications
    Corporation". The Tariff makes no mention of MCI-Virginia charges in
    describing the NAF and FUSF. Thus, the clear language of the Tariff
    precludes any assertion that MCI could lawfully include MCI-Virginia
    charges in calculating the FUSF and NAF, for MCI-Virginia is a
    separate corporate entity not included in the Tariff's definition of
    "MCI."

18. MCI's subsequent amendments to the Tariff provide no defense. MCI
    amended the Tariff to add language stating that the FUSF and NAF
    would be "applied to the customer's total domestic and international
    usage," and to define "usage charges" as "all tariffed charges
    appearing on a customer's invoice." Yet, even if MCI's invoices
    included MCI-Virginia charges, the Tariff continued to declare that
    the NAF and FUSF would be calculated as a percentage of "*MCI*
    service usage charges" or of "charges for *MCI* service." Equally
    unavailing is MCI's amending the Tariff to define the FUSF as "a
    charge equal to \[4.4 or 5\] percent of total \[*intrastate*,
    interstate\] and international MCI service usage charges." Given the
    Tariff's definition of "MCI," "intrastate...*MCI* service usage
    charges" cannot reasonably be construed to include *MCI-Virginia*
    charges.[^32]

19. MCI argues that "under the explicit terms" of the Tariff, the
    distinction between MCI and MCI-Virginia is irrelevant, because the
    Tariff "specifies that the NAF and FUSF were applied as a percentage
    of customers' total '*invoices*'."[^33] MCI is incorrect. Assuming
    again that MCI's invoices included MCI-Virginia charges, the Tariff
    nevertheless clearly stated that the NAF and FUSF were calculated as
    a percentage of "*MCI* service usage charges," or of "charges for
    *MCI* service," not total *invoiced* charges.

20. MCI surmises that the average consumer does not know the difference
    between MCI and MCI-Virginia. Therefore, MCI reasons, an average
    consumer would have believed that "MCI", as used in the Tariff,
    meant MCI *and* MCI-Virginia.[^34] This argument also fails. Under
    the filed rate doctrine, in construing the Tariff, we must assume
    that customers are familiar with all of its clearly stated
    terms.[^35] "MCI" is specifically defined in the Tariff to mean "MCI
    Telecommunications Corporation." We must assume, therefore, that MCI
    consumers understood that "MCI" meant "MCI Telecommunications
    Corporation"\-- and not MCI-Virginia \-- and that the FUSF and NAF
    would be assessed only on charges for services rendered by the
    former entity. Further, to the extent that there is an ambiguity
    (and we do not believe there is one), it is construed against MCI as
    the drafter of the Tariff.[^36]

    **B. VSCC's Remaining Claims are Denied as Moot**

21. Because we grant VSCC's claim, asserted in the First Complaint, that
    MCI violated section 203 of the Act by including customers'
    MCI-Virginia charges in calculating the FUSF and NAF, and because
    all of VSCC's claims arise out of the same conduct and seek the same
    relief, we need not reach VSCC's remaining claims in its First and
    Second Complaint. Accordingly, we vacate the *March 1999 Order* and
    dismiss VSCC's remaining claims under the First and Second
    Complaint.[^37]

    **IV. ORDERING CLAUSES**

22. Accordingly, IT IS ORDERED pursuant to sections 4(i), 4(j), 203, and
    208 of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 154(i), 154(j), 203, and 208, that the March 22, 1999 Order of
    this Commission in *Commonwealth of Virginia State Corporation
    Commission v. MCI Telecommunications Corporation*, Memorandum
    Opinion and Order, 14 FCC Rcd 4744 (1999), IS VACATED.

23. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), 203, and 208
    of the Communications Act of 1934, as amended, 47 U.S.C. §§154(i),
    154(j), 203, and 208, that the formal complaint filed by the
    Commonwealth of Virginia State Corporation Commission against MCI
    Telecommunications Corporation on October 7, 1998, File No. E-99-01,
    IS GRANTED to the extent indicated herein, and is in all other
    respects DISMISSED.

24. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), 203, and 208
    of the Communications Act of 1934, as amended, 47 U.S.C. §§154(i),
    154(j), 203, and 208, that the formal complaint filed by the
    Commonwealth of Virginia State Corporation Commission against MCI
    WORLDCOM Network Services, Inc. on December 30, 1999, File No.
    E-99-01A, IS DISMISSED, and the proceeding in File No. E-99-01A is
    hereby TERMINATED.

25. IT IS FURTHER ORDERED, pursuant to sections, 4(i), 4(j), and 208 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    154(j), 203, and 208, and Commission Rule 1.722, 47 C.F.R. § 1.722,
    that the Commonwealth of Virginia State Corporation Commission will
    file its supplemental complaint for damages in *Commonwealth of*
    *Virginia State Corporation Commission v. MCI Telecommunications
    Corporation*, File No. E-99-01, on or before the 60^th^ day from the
    release of this Order.

    FEDERAL COMMUNICATIONS COMMISSION

    Magalie Roman Salas

Secretary

[^1]: 47 U.S.C. § 208. *Commonwealth of Virginia State Corporation
    Commission v. MCI Telecommunications Corp.*, File No. E-99-01 (filed
    Oct. 7, 1998) (First Complaint); *Commonwealth of Virginia State
    Corporation Commission v. MCI WORLDCOM Network Services, Inc.*, File
    No. E-99-01 (filed Dec. 30, 1999) (Second Complaint). After the
    First Complaint was filed, MCI Telecommunications Corporation and
    MCI WORLDCOM Network Services, Inc. became MCI WorldCom
    Communications, Inc.

[^2]: Section 203(a) of the Act provides, in pertinent part: "Every
    common carrier... shall... file with the Commission ... schedules
    showing all charges for itself ... and showing the classifications,
    practices, and regulations affecting such charges." 47 U.S.C. §
    203(a). Section 203(c)(1) provides, in pertinent part, that no
    carrier shall "charge, demand, collect, or receive a greater or less
    or different compensation, for such communication, or for any
    service in connection therewith ... than the charges specified in
    the \[tariff\] then in effect\...". 47 U.S.C. § 203(c)(1).

[^3]: Section 2(b) of the Act provides, in pertinent part: "Nothing in
    this Act shall be construed to apply or to give the Commission
    jurisdiction with respect to ... charges, ... \[and\] practices ...
    for or in connection with intrastate communication service...". 47
    U.S.C. § 152(b).

[^4]: *Federal-State Joint Board on Universal Service*, Report and
    Order, 12 FCC Rcd 8776 (1997) (*Universal Service Order*), *as
    corrected by*, *Federal-State Joint Board on Universal Service*,
    Erratum, CC Docket No. 96-45, FCC 97-157 (rel. June 4, 1997), *aff'd
    in part, remanded in part, and rev'd in part, Texas Office of Public
    Utility Counsel v. FCC*, 183 F.3d 393 (5^th^ Cir. 1999), *petition
    for cert. filed sub nom., AT&T v. Cincinnati Bell Telephone Co.*,
    No. 99-1249 (filed Jan. 26, 2000).

[^5]: 47 U.S.C. §§ 201(b), 202.

[^6]: *See Commonwealth of Virginia State Corporation Commission v. MCI
    Telecommunications Corp.,* Memorandum Opinion and Order, 14 FCC Rcd
    4744 (1999) (*March 1999 Order*).

[^7]: Joint Statement of Stipulated Facts, Disputed Facts, and Key Legal
    Issues (Joint Statement) at 2, File No. 99-01 (filed November 11,
    1998).

[^8]: 47 U.S.C. §§ 153(41); 208(a).

[^9]: Joint Statement at 2.

[^10]: Joint Statement at 1. VSCC states that Virginia law requires that
    entities wishing to provide intrastate telecommunications services
    within the Commonwealth of Virginia be incorporated in Virginia.
    Initial Brief of Complainant at 3-4, File No. 99-01 (filed Dec. 7,
    1998). MCI does not dispute this statement.

[^11]: *Universal Service Order*, 12 FCC Rcd at ¶¶ 6, 808 (1997).

[^12]: *Access Charge Reform, Price Cap Performance Review for Local
    Exchange Carriers, Transport Rate Structure and Pricing, End User
    Common Line Charges*, First Report and Order, 12 FCC Rcd 15982
    (1997) (*First Access Charge Reform Order*).

[^13]: Tariff, 11^th^ revised page no. 16.3 (effective June 3, 1998) at
    § C-1.0611 (NAF); *id.* at original page no. 16.3.2 (effective June
    3, 1998) at § C-1.0612 (FUSF).

[^14]: Joint Statement at 3-4.

[^15]: Tariff, 3^rd^ revised page no. 16.3 (effective Jan. 1, 1998) at §
    C-1.0613 (describing the NAF). *Id.* at § C-1.0612; 3^rd^ revised
    page no. 16.4 (effective Jan. 1, 1998) at § C-1.0617 (describing the
    FUSF).

[^16]: Tariff, 3^rd^ revised page no. 16.4 at § C-1.0618.

[^17]: Tariff, 5^th^ revised page no. 16.3 (effective Feb. 28, 1998) at
    § C-1.061.

[^18]: Tariff, 8^th^ revised page no. 16.3 (effective March 13, 1998) at
    § C-1.061.

[^19]: The Tariff was first amended to provide that, with respect to
    certain plans, "a charge equal to 5 percent of total domestic and
    international MCI service usage charges will be applied to invoices
    of customers of \[enumerated plans\]." Tariff, original page no.
    16.3.2 (effective June 3, 1998) at § C-1.06121121. With respect to
    certain other plans, the Tariff was amended to provide that a
    "charge equal to 4.4 percent of total domestic and international MCI
    service usage charges will be applied to invoices of customers of \[
    enumerated plans\]. " Tariff, 8^th^ revised page no. 16.4 (effective
    June 5, 1998) at § C-1.0612121. In addition, language was added
    stating that "'domestic' usage charges means interstate and
    intrastate service usage." Tariff, 12^th^ revised page no. 16.3
    (effective June 5, 1998) at § C-1.061.

[^20]: Tariff, 10^th^ revised page no. 16.3 (effective Apr. 1, 1998) at
    § C-1.06132.

[^21]: Tariff, 12^th^ revised page no. 16.3 (effective June 5, 1998) at
    § C-1.061; 8^th^ revised page no. 16.4 (effective June 5, 1998) at §
    C-1.0612121; original page no. 16.4.1 (effective June 5, 1998) at §
    C-1.0612122.

[^22]: Tariff, 20^th^ revised page no. 8.1 (effective Sept. 8, 1995)
    (defining "MCI"); 16^th^ revised page no. 4 (effective May 15, 1992)
    (listing "Concurring Carriers").

[^23]: Joint Statement at 3-4; Amended Answer to Formal Complaint at 12
    ¶ 21 (filed Nov. 20, 1998); MCI's Proposed Findings of Fact and
    Conclusions of Law at 20 ¶ 7 (filed Nov. 20, 1998). MCI may have
    stopped imposing the FUSF on MCI-Virginia charges with respect to
    certain of its plans on July 2, 1998. The Tariff states, with
    respect to those plans, that after July 2, 1998, the FUSF will be
    calculated as a percentage of customers' "interstate and
    international MCI service usage charges...". Tariff, original page
    no. 16.3.2 (effective June 3, 1998) at § C-1.06121122.

[^24]: *March 1999 Order*, 14 FCC Rcd at ¶¶ 25, 28, 30.

[^25]: *Commonwealth of Virginia State Corporation Commission v. FCC,*
    No. 99-1624 (4^th^ Cir., filed May 10, 1999).

[^26]: *Texas Office of Public Utility Counsel v. FCC*, 183 F.3d 393
    (5^th^ Cir. 1999) (*Texas Office of Public Utility Counsel*),
    *petition for cert. filed sub nom., AT&T v. Cincinnati Bell
    Telephone Co.*, No. 99-1249 (filed Jan. 26, 2000).

[^27]: *Texas Office of Public Utility Counsel v. FCC*, 183 F.3d at 447,
    448.

[^28]: *Commonwealth of Virginia State Corporation Commission v. FCC,*
    No. 99-1624 (4^th^ Cir., Aug. 18,1999).

[^29]: Second Complaint at 18, ¶ 40.

[^30]: Second Complaint at 20-22, ¶¶ 48-53.

[^31]: 47 U.S.C. § 203(a), (c)(1).

[^32]: Our construction of the Tariff does not render the term
    "intrastate" meaningless, for MCI itself directly provided
    "intrastate" services in certain states other than Virginia. Joint
    Statement at 3-4. We do not address the question of whether it was
    lawful for MCI to impose the FUSF on intrastate MCI service usage
    charges in those states in which MCI provided intrastate services,
    as the issue is not before us.

[^33]: Initial Brief of MCI Telecommunications Corporation at 10 n. 4,
    File No. 99-01 (filed Dec. 8, 1998).

[^34]: Opposition Brief of MCI WORLDCOM Network Services, Inc. at 13-17,
    File No. 99-01A (filed March 6, 2000).

[^35]: *See e.g., Eastern Airlines, Inc. v. AT&T Co.*, 13 FCC2d 911, 913
    ¶ 7 (1968).

[^36]: *See Halprin, Temple, Goodman, & Sugrue v. MCI Telecommunications
    Corp.,* 13 FCC Rcd 22,568 at ¶13 (1998).

[^37]: Because we now vacate the *March 1999 Order*, we dismiss as moot
    the Florida Public Service Commission's Petition for Reconsideration
    of the *March 1999 Order*, filed on April 21, 1999.