‘Exoneration’ of AT&T From Making 8YY Payments ‘Must Be Reversed,’ Says Core

The “plain, unambiguous” terms of Core Communications’ tariffs obligate AT&T to pay for all 8YY “rate elements” and for all 8YY services that Core has provided “for the ultimate benefit of AT&T’s toll-free customers,” said Core’s opening brief Tuesday (docket 23-3022) in the 3rd U.S. Circuit Appeals Court to reverse the district court’s finding of summary judgment in AT&T’s favor.

U.S. District Judge Joshua Wolson for Eastern Pennsylvania in Philadelphia held in an Oct. 13 opinion that Core can’t collect the millions in unpaid switched access service charges it seeks from AT&T because the its tariffs didn’t authorize it to bill for those services in the first place (see 2310160018). Wolson denied as moot Core’s motion for summary judgment against AT&T.

But in “derogation” of Core’s tariffs, and contrary to the “payment architecture” established in the Communications Act and “pertinent” FCC guidance, the district court “erroneously construed” Core’s tariffs in such a way as to hold that it wasn’t entitled to any 8YY compensation from AT&T unless it “also billed the party who initiated the toll-free call,” said the brief. The district court’s conclusion as to how the 8YY compensation regime established by the tariffs should have worked “would, in fact, have required Core to engage in a pattern and practice of violating federal law,” it said.

A telecom carrier can’t lawfully charge a party for initiating a toll-free call, yet that’s exactly what the district court’s construction of the tariffs required “as a condition precedent to Core’s right to receive payment from AT&T for 8YY services,” said the brief. In reaching that conclusion, the district court “failed to consider” that Core’s tariffs identify AT&T as the customer “for purposes of payment obligations arising in connection with 8YY services,” it said. The district court’s construction of the tariffs consequently “constitutes legal error and must be reversed,” it said.

Under applicable law, Core’s tariffs are conclusively deemed lawful, which means that the district court “should have presumed the validity” of those tariffs, “despite AT&T’s suggestions to the contrary,” said the brief. Under the Communications Act, and “with due respect to Article III,” it doesn’t appear that a federal district court “is an appropriate venue to challenge the validity of tariffs generally,” and especially those that are deemed lawful, it said.

All such challenges “must be brought before the FCC,” said the brief. Even if the district court had statutory jurisdiction to entertain a “collateral attack” on the lawlessness of Core’s tariffs, “the only remedy available for AT&T in the event of a successful challenge was prospective,” it said. In contrast, the district court’s “exoneration” of AT&T from paying any charges for 8YY services that had already been provided was “impermissibly broad, having retroactive effect, and therefore, constitutes reversible legal error,” it said.