Broadvox-CLEC, LLC v. AT&T Corp. et al

Filing 67

MEMORANDUM OPINION AND ORDER denying as moot 64 MOTION re 40 Order on Motion to Dismiss, Requesting the Court to Establish a Summary Judgment Briefing Schedule; granting 56 Consent MOTION to Seal Broadvox's Brief on Primary Jurisdiction; directing parties to submit a revised scheduling order. Signed by Judge Paul W. Grimm on 4/10/2015. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
BROADVOX-CLEC, LLC,

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Plaintiff/Counter-Defendant,

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v.

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AT&T CORPORATION,

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Defendant/Counter-Plaintiff.
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Case No.: PWG-13-1130

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MEMORANDUM OPINION AND ORDER
Plaintiff/Counter-Defendant Broadvox-CLEC, LLC (“Broadvox”), a competitive local
exchange carrier, partners with third-party carriers to provide long-distance telephone access
services to Defendant/Counter-Plaintiff AT&T Corporation (“AT&T”), an interexchange (longdistance) carrier. These calls do not terminate at either Broadvox’s or the third-party carriers’
facilities. Broadvox seeks payment for those services, alleging that AT&T violated its federal
and state tariffs (which set forth the rates it charges for its services) and the Communications
Act, 47 U.S.C. §§ 201 and 203, through its failure to pay and its allegedly discriminatory
payment practices, and also seeks recovery in quantum meruit. AT&T counterclaims to recover
any potential overpayment, alleging violations of the Communications Act based on AT&T’s
view that Broadview neither qualifies as a “domestic access” provider, nor operates an “‘end
office’ switch,”1 and seeking a declaratory judgment confirming AT&T’s view of Broadvox’s
status under the Communications Act. Countercl. ¶¶ 61, 74, 92–95.

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“[E]nd office switching rates are among the highest recurring intercarrier compensation
charges.” AT&T Corp. v. YMax Commc’ns Corp., EB-10-MD-005, 26 FCC Rcd. 5742, ¶ 40
(2011).

Some or all of the parties’ claims may present issues that fall within the purview of the
Federal Communications Commission (the “FCC” or the “Commission”). In a July 2, 2014
Memorandum Opinion and Order, I ordered the parties to brief the issue of primary jurisdiction.
ECF Nos. 40 & 41. The briefing is complete,2 and Broadvox also has filed a Motion Requesting
the Court to Establish a Summary Judgment Briefing Schedule and Memorandum in Support
(“Broadvox Supp.”), based on its contention that the FCC “issued an order on February 11, 2015
fully resolving those issues [that may have been appropriate for referral to the FCC] and
obviating any perceived need for a referral,” ECF Nos. 64 & 64-1. AT&T has filed a response
(“AT&T Supp. Resp.”), ECF No. 65, and Broadvox has filed a reply (“Broadvox Supp. Reply”),
ECF No. 66. Because the FCC already has provided sufficient guidance on any issues that
otherwise would have been appropriate for referral, I conclude that a primary jurisdiction referral
is not necessary with regard to the issues raised in the tariff claims. Nor is a referral necessary at
this time with regard to the Communications Act and quantum meruit claims.
I.

BACKGROUND
Broadvox is a local exchange carrier (“LEC”) that bills AT&T for two “access services”

for which AT&T does not believe it should be charged. The first disputed access service is
provided when AT&T customers place prepaid calling card (“PPCC”) calls by dialing telephone
numbers that Broadvox provides, which AT&T then transmits to a Broadvox facility, from
which Broadvox and its PPCC provider partner “route[] them to a calling ‘platform,’” where

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AT&T filed the opening brief (“Br.”), ECF No. 48; Broadvox filed a Response, ECF No. 57;
and AT&T filed a Reply, ECF No. 59. A hearing is not necessary. See Loc. R. 105.6. Broadvox
also filed a Consent Motion to Seal its Brief, ECF No. 56. Given that AT&T does not oppose the
Motion to Seal; the brief contains “trade secrets, and other commercial confidential
information”; and Broadvox filed a redacted version available to the public, ECF No. 58, the
Motion to Seal IS GRANTED. Although the brief is sealed, I have determined, after reviewing
this Memorandum Opinion and Order, that none of its contents warrants sealing this
Memorandum Opinion and Order, in whole or in part.
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they terminate in internet protocol (“IP”) format. AT&T Br. 3; see Broadvox Supp. Reply 13.
At that point, the customer dials a second number and an unknown third-party network delivers
the call its recipient. AT&T Br. 3. This is called a “two-stage call,” and the issue is whether
Broadvox may bill AT&T access charges for “routing the call to its routing partner” and then
“terminating” the call by routing it to the platform, when Broadvox and its PPCC provider
partner deliver the call to the platform at the end of the first stage but not to its ultimate recipient.
Id. at 3–4; see Broadvox Resp. 5; Broadvox Supp. Reply 13–14.
The second disputed service is provided when Broadvox receives calls in IP format from
AT&T, via a Voice over Internet Protocol (“VoIP”) provider that Broadvox selects, and then
“hand[s] off the call to an over-the-top VoIP provider” that “dump[s] the IP packets for the call
. . . into the public Internet.” AT&T Br. 6. An unaffiliated internet service provider then
transfers the call “to the neighborhood IP broadband facilities used by the called party’s
broadband service provider,” and that provider delivers the call to its recipient. Id. This is called
“over-the-top VoIP traffic.”

The dispute, similar to the two-stage call dispute, is whether

Broadvox may bill AT&T for an “‘end office switching’ rate element,” even though Broadvox is
not “involved in the ‘last-mile’ delivery of the call.” Id. at 6–7. Reduced to its essentials,
Broadvox argues that AT&T has failed to pay its bills, and AT&T argues that it has been charged
improperly because Broadvox charges for terminating calls when it is not, according to AT&T,
actually terminating the calls.
These otherwise-simple disputes may “‘require[] the resolution of issues which, under a
regulatory scheme, have been placed within the special competence’” of the FCC, such that,
under the primary jurisdiction doctrine, it may be appropriate to stay proceedings in this Court
“‘pending referral of such issues to the administrative body for its views.’” Advamtel, LLC v.

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AT&T Corp., 105 F. Supp. 2d 507, 511 (E.D. Va. 2000); see Reiter v. Cooper, 507 U.S. 258, 268
(1993); Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., 268 F.3d 255, 262 n.7 (4th
Cir. 2001). This doctrine applies when a suit filed in district court “raises a difficult, technical
question that falls within the expertise of a particular agency.” Piney Run, 268 F.3d at 262 n.7.
It allows courts to “‘tak[e] advantage of agency expertise and refer[] issues of fact not within the
conventional expertise of judges,’” as well as “‘cases which require the exercise of
administrative discretion,’” to the appropriate administrative agency so that the decision-making
of the court and the agency is coordinated. Advamtel, 105 F. Supp. 2d at 511 (quoting Envtl.
Tech. Council v. Sierra Club, 98 F.3d 774, 789 (4th Cir. 1996)).
For example, courts typically refer issues concerning “the reasonableness of a carrier’s
tariff” to the FCC under the primary jurisdiction doctrine “because that question requires the
technical and policy expertise of the agency, and because it is important to have a uniform
national standard concerning the reasonableness of a carrier’s tariff, as a tariff can affect the
entire telecommunications industry.” Id. (footnote omitted). In contrast, a court would not refer
“an action seeking the enforcement of an established tariff,” because “enforcement of a tariff to
collect amounts due under it is well within the ordinary competence of courts,” given that “a
tariff is essentially an offer to contract,” and “such an action is simply one for the enforcement of
a contract.” Id. (footnote omitted). In Advamtel, the court referred two counts that “require[d]
an evaluation of the reasonableness of plaintiffs’ rates . . . , issues that are plainly within the
FCC’s special competence and primary jurisdiction.” Id. at 512. It did not refer the other four
counts, which “involve[d] a threshold legal question, namely whether plaintiffs had a right to bill
AT&T for the access services at issue in th[at] case,” a question that was “well within the
ordinary competence of courts.” Id.

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Yet, an issue should not be referred if the agency “has already issued guidance on [the]
issue.” Advamtel, 105 F. Supp. 2d at 513 n.13. Moreover, referral is not mandatory; rather,
“courts must . . . balance the advantages of applying the doctrine against the potential costs
resulting from complications and delay in the administrative proceedings.”

Id. at 511.

Additionally, if a court refers some, but not all, claims to an agency, it needs to determine
whether the remaining claims should be stayed. See id. at 513. “A court may, in its discretion,
stay proceedings pending determination by an administrative agency pursuant to the doctrine of
primary jurisdiction.” Id. In Advamtel, the court decided against staying the claims it did not
refer because “the referred issue” was “secondary” to “the predicate, or primary issue” posed by
the remaining claims, such that determination of the primary issue did “not depend in any way
on the resolution of the issues referred to the FCC.” Id. The court also reasoned that, “because
proceedings before an administrative agency typically take several years, a stay would
significantly delay resolution of th[e] case.” Id.
I asked the parties to address (1) “whether each claim presents threshold legal questions
for the court, or technical or policy questions for the FCC,” (2) “whether the FCC has offered
guidance on any questions that the claims pose within its expertise,” and (3) “whether, with
regard to any claim that should be referred to the FCC, the claim presents a primary issue, which
requires the stay of the remaining claims, or secondary issue whose resolution will not affect the
remaining claims.” Mem. Op. 12.
II.

DISCUSSION
In AT&T’s view, the issues concerning the services for which Broadvox may bill AT&T

involve questions that the FCC should answer, but referral is unnecessary because the FCC
already has provided guidance on these issues. AT&T’s Br. 1. Nonetheless, AT&T urges the
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Court to refer the case “if the parties’ briefs give the Court concerns that the FCC’s guidance is
not sufficiently clear,” AT&T Reply 2, or if the guidance does not lead the Court to rule in
AT&T’s favor, AT&T Supp. Resp. 7. Broadvox agrees that “a primary jurisdiction referral is
unnecessary,” but for a different reason: Broadvox contends that “[t]his is a straightforward
collections action to enforce the plain language of Broadvox’s tariff,[] and there are no ‘technical
or policy questions’ that require the expertise of the FCC.”3 Broadvox Resp. 1. Alternatively,
Broadvox contends that, to the extent the Court requires the FCC’s guidance, the FCC provided
the necessary guidance in a recent ruling, Declaratory Ruling, In re Connect America Fund, No.
01-92, 2015 WL 628983 (FCC Feb. 11, 2015) (“2015 Declaratory Ruling” or “In re Connect Am.
Fund”). Broadvox Supp. 1.
Broadvox contends that 47 C.F.R. § 51.913(b), the “VoIP Symmetry Rule” that the FCC
implemented in the December 29, 2011 Connect America Fund Order and clarified in the 2015
Declaratory Ruling, permits it to bill AT&T for access services provided in conjunction with
calls passed to over-the-top VoIP providers.

Broadvox Resp. 5; Broadvox Supp. 2.

In

Broadvox’s view, “[t]he Court can resolve this issue strictly by reference to the [FCC’s] rules
and orders.” Broadvox Resp. 8. Broadvox argues that the same analysis applies to its purported
right to bill for access services in pre-paid calling card calls, which it contends are “just another
version” of the call traffic at issue when VoIP partners are used. Id. at 9. Broadvox insists that
the 2015 Declaratory Ruling directly supports its position. Broadvox Supp. 4.

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Broadvox’s opposition to referral is based, in part, on “the FCC’s track record of deferring
resolution of critical issues for extended periods of time.” Broadvox Resp. 2. AT&T replies that
“whether there is a risk of delay by the agency is not dispositive,” and urges the Court to focus
on “whether, given the nature of the issues, allowing the agency to decide technical and policy
issues would ultimately result in a more uniform and conclusive resolution of the dispute.”
AT&T Reply 2.
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The FCC issued the 2015 Declaratory Ruling “to ensure that the policies enacted by
Congress and implemented by the Commission embrace modern communications networks, and
encourage the deployment of, and transition to, IP-based networks and services.” In re Connect
Am. Fund, 2015 WL 628983, ¶ 1. The FCC observed that voice communication services that
historically ran on “a network based on time-division multiplexed (TDM) circuit-switched voice
services running on copper loops,” now more and more frequently run on “an all-Internet
Protocol (IP) using copper, co-axial cable, wireless, and fiber as physical infrastructure.” Id. ¶ 1
n.1. It sought to clarify in its ruling that “the VoIP symmetry rule applies in a technology- and
facilities-neutral manner.” Id. ¶ 1.
To this end, the FCC stated that the VoIP symmetry rule “does not require, and has never
required, an entity to use a specific technology or its own facilities in order for the service it
provides to be considered the functional equivalent of end office switching.” Id. ¶ 3. It ruled
that “a competitive LEC partnering with a facilities-based VoIP provider,” i.e., one that provides
VoIP service and the last-mile facility to the customer, “provides the ‘functional equivalent’ of
end office switching.” Id. It further ruled that “the same is true when the competitive LEC
partners with an over-the-top VoIP provider,” i.e., one that provides only VoIP service and not
the last-mile facility, “to exchange traffic with interconnected carriers, and in both instances the
competitive LECs may assess end office switching charges for such services.” Id.
Thus, “a competitive LEC or its VoIP provider partner” can “provide the functional
equivalent of end office switching, and . . . be eligible to assess access charges for this service,”
even if it does not “provide the physical last-mile facility to the VoIP provider’s end user
customers.” Id. ¶ 19. Partnerships with facilities-based VoIP providers and over-the-top VoIP
providers are treated the same, such that “compensation [is due] for new and non-traditional

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functionality.” Id. ¶ 20. “The rule places no restrictions on the types of VoIP providers with
which competitive LECs may form partnerships,” such that “[c]ompetitive LECs may partner
with a variety of VoIP partners and collect symmetrical access charges for covered services as
long as one of the partners jointly providing a call delivers the end office switching
functionality.” Id. ¶ 21.
The FCC observed that this “new functional equivalence approach to VoIP-PSTN
traffic,” which “takes a more holistic look at how calls are delivered to the end user, and
represents a departure from prior Commission policy in which providers were allowed to charge
access for services that only they themselves provided,” was the best way to “balance[] its policy
goals of promoting competition in the voice marketplace, encouraging migration to all-IP
networks, reducing intercarrier compensation disputes, providing greater certainty to the industry
regarding intercarrier compensation revenue streams, and avoiding marketplace distortions and
arbitrage that could arise from an asymmetrical approach to compensation.” Id. ¶ 26. The FCC
stated that it “decline[d] to adopt . . . a constricted, narrow interpretation of ‘functionally
equivalent,’” under which “the Commission [would] look to key physical switching functions
identified in the TDM network, and attempt to identify similar physical functions in the IP
network to determine whether the functional equivalent of end office switching occurs for
competitive LECs partnering with over-the-top VoIP providers.” Id. ¶ 27. Instead, the FCC
concluded that, “under the VoIP symmetry rule, the functional equivalent of end-office switching
exists when the intelligence associated with call set-up, supervision and management is
provided,” id. ¶ 28, and that “competitive LECs and their over-the-top VoIP partners
undoubtedly provide th[is] call intelligence,” such that the call control functions they jointly
provide “are the functional equivalent of end-office switching,” id. ¶ 29; see id ¶ 31 (concluding

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that, “under section 51.903 of [the FCC] rules, a competitive LEC in conjunction with its overthe-top VoIP provider partner provides the functional equivalent of end office switching”).
Following the FCC’s 2015 Declaratory Ruling, AT&T concedes that “a local exchange
carrier may impose end office switching charges on over-the-top VoIP traffic” under the FCC
rules. AT&T Supp. Resp. 2; see id. at 3 (“[T]he Court no longer needs to address the scope of
the FCC’s ‘VoIP-PSTN[4] rules with respect to over-the-top traffic.”). Nonetheless, AT&T
maintains that Broadvox cannot impose any of the disputed charges on AT&T, for the reasons
discussed in the sections that follow. Id. at 2.
A.

Switching Charges on Over-the-Top VoIP Traffic

AT&T argues that Broadvox cannot impose on AT&T the end office switching charges
because “Broadvox’s tariff does not permit it to impose end office switching charges.” AT&T
Supp. Resp. 2 (emphasis in original). Broadvox counters that the language of its tariff permits it
to charge AT&T end office switching charges because “Broadvox has tariffed the VoIP
Symmetry Rule and can therefore charge for access services it provides in partnership with VoIP
providers and in circumstances where it provides the functional equivalent of traditional TDMbased services end office switching.” Broadvox Supp. Reply 5. In Broadvox’s view, “Section
3.8.4, [which incorporates the VoIP symmetry rule,] by its plain language, applies the VoIP
Symmetry Rule to the billing of the rate elements contained elsewhere in Broadvox’s tariff.” Id.
at 7. While conceding that Broadvox’s tariff incorporates the VoIP symmetry rule, AT&T
argues that “Broadvox’s ‘incorporation’ of the language of Section 51.913(b), which nowhere
contains the words ‘end office’ or ‘end office switching,’ cannot trump the other tariff provisions
that explicitly address end office switching.” AT&T Supp. Resp. 6–7.

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PSTN stands for Public Switched Telephone Network. In re Connect Am. Fund, 2015 WL
628983, ¶ 2 n.3.
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AT&T insists that, although ordinarily the FCC would need to determine whether the
“technical terms of Broadvox’s tariff” permit it to impose these charges, the FCC previously
resolved the issue in another case “involving tariff provisions that define ‘end office switching’
in the same essential way as in Broadvox’s tariff,” AT&T Corp. v. YMax Communications Corp.,
EB-10-MD-005, 26 FCC Rcd. 5742, ¶ 40 (2011). AT&T’s Br. 7. According to AT&T, in
YMax, the FCC held that the language used in the tariff at issue in that case, which is the same
language used in Broadvox’s tariff, “does not permit it to charge AT&T end office switching
charges on over-the-top traffic.” AT&T Supp. Resp. 5. AT&T asserts:
[I]f the inclusion in Broadvox’s tariff of the language from 47 C.F.R. § 51.913(b),
along with the end office switching provisions at issue in YMax, generates any
doubt in the Court’s mind that YMax controls the tariff interpretation issue and
directs a ruling in AT&T’s favor (an issue the FCC has not specifically
addressed), then it should refer the issue to the FCC for resolution of the tariff
interpretation question.
Id. at 7.
Thus, the issue is whether Broadvox may impose end office switching charges on overthe-top VoIP traffic, when its tariff includes both specific language about end office switching
that does not refer to over-the-top VoIP traffic, and general language incorporating the VoIP
symmetry rule with regard to “switched access charges,” which Broadvox insists “includes ‘end
office switching.’” Broadvox Supp. Reply 10. This is not a matter of “reasonableness” that
needs to be referred to the FCC. See Advamtel, LLC v. AT&T Corp., 105 F. Supp. 2d 507, 511
(E.D. Va. 2000). Rather, it concerns contract interpretation and “whether [Broadvox] ha[s] a
right to bill AT&T for the access services,” questions that are “well within the ordinary
competence of courts.” Id. at 512; see United States v. W. Pac. R.R., 352 U.S. 59, 65–66 (1956)
(“[W]here the question is simply one of construction the courts may pass on it as an issue ‘solely
of law.’”) (quoting Great N. Ry. v. Merchants Elevator Co., 259 U.S. 285, 291 (1922)).
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It is true that
[W]here words in a tariff are used in a peculiar or technical sense, and where
extrinsic evidence is necessary to determine their meaning or proper application,
so that “the inquiry is essentially one of fact and of discretion in technical
matters,” then the issue of tariff application must first go to the Commission. The
reason is plainly set forth: such a “determination is reached ordinarily upon
voluminous and conflicting evidence, for the adequate appreciation of which
acquaintance with many intricate facts of [the subject matter] is indispensable,
and such acquaintance is commonly to be found only in a body of experts.”
W. Pac. R.R., 352 U.S. at 66 (quoting Great N. Ry., 259 U.S. at 291). But this is not an instance
requiring review of “‘voluminous and conflicting evidence’” by experts “‘acquaint[ed] with
many intricate facts.’”

See id. (quoting Great N. Ry., 259 U.S. at 291). Rather, the FCC has

addressed the scope of end office switching charges in a similar tariff, see AT&T Corp. v. YMax
Commc’ns Corp., EB-10-MD-005, 26 FCC Rcd. 5742, ¶ 40 (2011), as has the Fourth Circuit, see
CoreTel Va., LLC v. Verizon Va., LLC, 752 F.3d 364 (4th Cir. 2014), and the FCC recently
provided guidance on the interplay between the VoIP symmetry rule and these decisions, see In
re Connect Am. Fund, 2015 WL 628983, ¶¶ 33–35, 39–40. Further, the evidence to be reviewed
comprises only Broadvox’s tariff and perhaps, as relevant, the tariffs at issue in YMax and
CoreTel. This Court is the proper forum to resolve the matter, regardless whether “YMax
controls the tariff interpretation issue and directs a ruling in AT&T’s favor,” see AT&T Supp.
Resp. 7, and I will not refer it to the FCC. See Advamtel, 105 F. Supp. 2d at 511–12; W. Pac.
R.R., 352 U.S. at 65–66; Great N. Ry., 259 U.S. at 291.
B.

Switching Charges on Prepaid Calling Card Services

As for the access charges related to PPCC services, AT&T insists that referral is not
necessary because “the FCC has said that access charges [for PPCC services] must be ‘based on
the location of the called and calling parties.’” AT&T’s Br. 5 (quoting In re Regulation of
Prepaid Calling Card Servs., 21 FCC Rcd. 7290, ¶ 27 (2006), vacated in part on other grounds,
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509 F.3d 531 (D.C. Cir. 2007)). Viewing a call placed through PPCC services as one call,
AT&T argues that, under the “‘end-to-end’ analysis” that the FCC employs, “intermediate
switching or routing, like that provided by Broadvox, is ignored,” such that a service provider
like Broadvox does not provide the facilities to originate or terminate a call and therefore cannot
impose access charges. Id.
Broadvox does not dispute that neither it nor its VoIP provider partner is involved in the
second stage of a PPCC call. But, in Broadvox’s view, PPCC calls involve two separate calls,
with the customer dialing a separate number for each call, “the first terminating to the calling
card platform and the second extending from the calling card platform to the end user for the
second call.”

Broadvox Supp. Reply 12–13.

Thus, Broadvox maintains, it “is, in fact,

terminating calls in IP protocol, working with its PPCC partner, to the calling card platforms of
its PPCC customers.” Id. at 12. As Broadvox sees it, for the second call, the customer “begin[s]
using the service of another provider, the PPCC provider.” Id. at 13.

Broadvox seeks

compensation for the first call only, which it insists “terminates in IP protocol to the PPCC
platform.” Id. Broadvox argues that the VoIP symmetry rule supersedes all precedent that it is
not entitled to charge for an IP provider terminating the call.5 Broadvox Resp. 9–10.
AT&T contends that these charges are distinct from the VoIP access charges that the
2015 Declaratory Ruling addressed, “and nothing in the Declaratory Ruling even purports to
address two-stage, prepaid calling card calls.” AT&T Supp. Resp. 7. AT&T argues that, even if
Paragraph 21 of the 2015 Declaratory Ruling states that the VoIP Symmetry Rule applies to
services provided through partnerships with all types of VoIP providers, it only applies when

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Broadvox alternatively contends (in conclusory terms) that AT&T owes tandem switching
charges for PPCC calls, even if the calls do not terminate at the platform. Broadvox Resp. 5;
Broadvox Supp. 11; Broadvox Supp. Reply 14. Broadvox does not develop this argument, and
AT&T has not responded to it.
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“either Broadvox or its purported VoIP partner . . . provide[s] ‘comparable’ service to traditional
access services charged by local exchange carriers,” that is, when Broadvox or its VoIP partner
provides the equivalent of a terminating service. AT&T Supp. Resp. 8. Indeed, in stating that
“[c]ompetitive LECs may partner with a variety of VoIP partners and collect symmetrical access
charges for covered services,” the FCC conditioned its ruling: The LECs may collect access
charges “as long as one of the partners jointly providing a call delivers the end office switching
functionality.” In re Connect Am. Fund, 2015 WL 628983, ¶ 21 (emphasis added). According to
AT&T, for PPCC services, neither the services that Broadvox provides nor those that its VoIP
partners provide are “‘comparable’ to the termination of a call to a called party,” which is a
service that “unaffiliated entities” provide in the second half of the call, and therefore Broadvox
cannot impose terminating charges for its PPCC services. AT&T Supp. Resp. at 8–9.
Thus, the issue is whether a PPCC call is a single (but two-phased) call for which
Broadvox only participates in the first phase and consequently does not provide terminating
services, or two distinct calls, such that Broadvox provides terminating services for the initial
call to the calling card platform. Broadvox does not cite any authority to support its position that
a PPCC call is one call. AT&T cites as authoritative In re AT&T Corp. Pet. for Declaratory
Ruling Regarding Enhanced Prepaid Calling Card Servs., 20 FCC Rcd. 4826 (F.C.C. 2005)
(Calling Card Order and Notice of Proposed Rulemaking). There, it was AT&T that argued that
PPCC calls, at least when an advertising message is communicated to the caller at the platform,
consist of two calls, one to the platform and a second to the called party. Id. ¶ 23. The FCC
rejected that argument, reasoning that “it cannot be the case that communication of the
advertising message creates an endpoint because all calling card platforms engage in some form
of communication with the calling party, and the Commission never has found this

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communication to be relevant for jurisdictional purposes.” Id. ¶ 23. The commission observed
that, “[f]or purposes of determining the jurisdiction of calling card calls, the Commission has
applied an ‘end-to-end’ analysis, classifying long-distance calls as jurisdictionally interstate or
intrastate based on the endpoints, not the actual path, of each complete communication,” such
that a PPCC call routed via a platform and employing a second dialed number is nonetheless one
call in which the platform is not a terminating point. Id. ¶ 5. AT&T also cites In re Quest
Communications Corp. v. Farmers & Merchants Mutual Telephone Co., 22 FCC Rcd. 17973
(F.C.C. 2007), in which the FCC noted that, for “calling card platform cases,” it has “applied an
end-to-end analysis and found that calls dialed in to a calling card platform and then routed to
another party terminated with the ultimate called party, not at the platform,” such that “there was
one call (from A to B via the calling card platform), not two (A to the platform plus platform to
B).” Id. ¶ 34. Clearly, the FCC already has provided sufficient guidance on how to approach a
PPCC call, and a referral is not necessary. See Advamtel, 105 F. Supp. 2d at 513 n.13.
C.

Communications Act and Quantum Meruit Claims
1.

Motion for reconsideration

The third and fourth issues involve the merits of Broadvox’s Communications Act and
quantum meruit claims. AT&T attempts to use its primary jurisdiction briefing to renew its
motion to dismiss the Communications Act claims based on Broadvox’s failure, in AT&T’s
view, to allege liability in AT&T’s capacity as a service provider, rather than a purchaser,
insisting that “[s]uch claims are invalid as a matter of law under the FCC’s precedents.”
AT&T’s Br. 8–9. In my August 20, 2013 Order, ECF No. 16, I acknowledged this as a “close[]
issue” but denied AT&T’s motion to dismiss on the record before me. AT&T also again moves
to dismiss the quantum meruit claim, reiterating its contention that the claim is preempted
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because “for the interstate, FCC-regulated services at issue, the FCC has held that Broadvox’s
exclusive means of recovery is either via a lawful tariff or an express, negotiated contract,” and
not through quantum meruit. AT&T’s Br. 9–10. I rejected this argument as well, noting that
although “[u]ltimately, AT&T may prevail,” I was “unable to determine on the record before me,
which notably d[id] not even include Broadvox’s tariff, whether the services at issue are covered
by the tariff or outside its scope.” Aug. 20, 2013 Order 3. Essentially, AT&T asks me to
reconsider these rulings, and I therefore will construe its request as a Rule 54(b) motion to
reconsider an order that is not a final judgment. See Fed. R. Civ. P. 1; Cezair v. JPMorgan
Chase Bank, N.A., No. DKC-13-2928, 2014 WL 4955535, at *1 (D. Md. Sept. 30, 2014)
(discussing Rule 54(b)) (citing Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d
1462, 1469–70 (4th Cir. 1991)).
Rule 54(b) provides that “any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . .
may be revised at any time before the entry of a judgment adjudicating all the claims and all the
parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). The standards for reviewing Rule 59(e) and
60(b) motions provide guidance for the review of a Rule 54(b) motion, see Cezair, 2014 WL
4955535, at *1, for which the Fourth Circuit has not stated a standard, see Fayetteville Investors,
936 F.2d at 1472; see Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir.
2003) (same). See, e.g., Peters v. City of Mt. Rainier, No. GJH-14-955, 2014 WL 4855032, at *3
n.1 (D. Md. Sept. 29, 2014) (looking to Rule 60(b) standard); Harper v. Anchor Pkg. Co., Nos.
GLR-12-460, GLR-12-462, 2014 WL 3828387, at *1 (looking to Rule 59(e) standard); Potter v.
Potter, 199 F.R.D. 550, 552 n.1 (D. Md. 2001) (applying Rule 59(e) standard).

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A Rule 59(e) motion “need not be granted unless the district court finds that there has
been an intervening change of controlling law, that new evidence has become available, or that
there is a need to correct a clear error or prevent manifest injustice.” Robinson v. Wix Filtration
Corp. LLC, 599 F.3d 403, 411 (4th Cir. 2010). Rule 60(b) provides overlapping, but broader,
bases for relief from a court order: “mistake, inadvertence, surprise, or excusable neglect”; newly
discovered, previously unavailable evidence; “fraud . . . , misrepresentation, or misconduct by an
opposing party”; a void, satisfied, or discharged judgment, or “any other reason that justifies
relief.” Fed. R. Civ. P. 60(b). Notably, a motion for reconsideration “is not a license for a losing
party’s attorney to get a ‘second bite at the apple. ’” Shields v. Shetler, 120 F.R.D. 123, 126 (D.
Co. 1988). 
Here, AT&T argues for dismissal of the Communications Act on the basis that discovery
has not revealed any evidence that its actions were unreasonable or discriminatory, such that it
cannot be subject to a Communications Act claim. AT&T’s Br. 9. In Broadvox’s view,
“[d]iscovery has established a pervasive pattern and practice of discriminatory conduct by
AT&T.” Broadvox Resp. 12. I cannot resolve this issue without reviewing documents produced
in discovery (and not part of the record before me), in which case I would have to convert
AT&T’s quasi-motion to a motion for summary judgment. See Fed. R. Civ. P. 12(d). Moreover,
the referenced documents are not currently before me, such that AT&T has not supported its
position properly. See Fed. R. Civ. P. 56(c)(1)(A).
The only evidence that I would consider at the motion to dismiss stage—Broadvox’s
tariff, which “was integral to and explicitly relied on in the complaint” and may resolve the
quantum meruit claim—still is not a part of the record.

See Tucker v. Specialized Loan

Servicing, LLC, ---- F. Supp. 3d ----, 2015 WL 452285, at *8 (D. Md. Feb. 3, 2015) (noting that,

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to rule on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court may consider “any
‘document that the defendant attaches to its motion to dismiss if the document was integral to
and explicitly relied on in the complaint and if the plaintiffs do not challenge its authenticity’”
(quoting CACI Int’l v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009)
(citations and quotation marks omitted))). Additionally, AT&T has not identified a change in the
law or a clear error from which manifest injustice will result. See Robinson, 599 F.3d at 411;
Fed. R. Civ. P. 59(e). Nor does AT&T claim excusable neglect or any misconduct by Broadvox.
See Fed. R. Civ. P. 60(b). Therefore, AT&T’s motion for reconsideration is denied. See Fed. R.
Civ. P. 54(b); see Cezair, 2014 WL 4955535, at *1.
2.

Primary jurisdiction referral of Communications Act claims

AT&T contends that, if not dismissed, the Communications Act issue should be referred
to the FCC because it involves a reasonableness determination and “present[s] fact-intensive
issues that call for FCC expertise and policy judgments,” as “courts typically should not
determine in the first instance whether a carrier’s practice is ‘reasonable’ under Sections 201 or
202.” AT&T’s Br. 8–9. Broadvox insists that “a number of courts have retained jurisdiction to
hear claims under sections 201 and 202.” Broadvox Resp. 12. As I noted in my August 20,
2013 Order, whether Broadvox may state a claim under the Communications Act is a close call
that I can resolve on summary judgment. At that time, the parties may supplement the record
with any evidence of AT&T’s alleged unreasonable or discriminatory practices—or evidence to
the contrary—that would transform a purely contractual dispute into a Communications Act
claim. It is undisputed that, even though the ultimate reasonableness of a carrier’s practices may
be an issue for the FCC, if guiding precedent does not exist, see Advamtel, 105 F. Supp. 2d at
511, 513 n.13, the issue of whether there is sufficient evidence to generate a genuine dispute of

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material fact is within this Court’s purview. Therefore, I will not make a referral at the time. See
id.
3.

Primary jurisdiction referral of quantum meruit claim

In AT&T’s view, if the Court does not dismiss the quantum meruit claim, then, although
the Court (and not the FCC) would have jurisdiction to decide the claim, “the Court
unquestionably could not consider Plaintiff’s damages, because that would be akin to setting a
rate, a function reserved for the FCC.” Id. at 10. As Broadvox sees it, the Court can make a
damages determination “[b]ecause AT&T has already made admissions as to the value of the
services in question.” Broadvox Resp. 15. It is clear that a referral is not appropriate at this
time, and I will reconsider the issue with regard to damages, should Broadvox prevail.
III.

CONCLUSION
A primary jurisdiction referral is not necessary with regard to the issues raised in the

tariff claims. Nor is a referral necessary at this time with regard to the Communications Act and
quantum meruit claims.
The parties are directed to submit by April 24, 2015 a joint proposed scheduling order to
govern any remaining discovery and dispositive motions briefing.

Broadvox’s Motion

Requesting the Court to Establish a Summary Judgment Briefing Schedule, ECF No. 64, IS
DENIED AS MOOT.

Date: April 10, 2015

/S/
Paul W. Grimm
United States District Judge

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