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Pac-West Telecomm, Inc. v. California

October 7, 2010

PAC-WEST TELECOMM, INC., PLAINTIFF,
v.
CALIFORNIA, INC. AND AT&T CORP., AT&T COMMUNICATIONS OF DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

Report Due: 2/14/11

Mid-Discovery Joint Status

Mid-Discovery Status Hearing: 2/18/11 8:15

Ctrm. 3

Discovery Cut-Off: 7/1/11

Non-Dispositive Motion

Filing Deadline: 7/20/11

Non-Dispositive Motion Ctrm. 10

Hearing Date: 8/26/11 9:00

Dispositive Motion Filing Deadline: 8/1/11

Date: 9/26/11 10:00

Ctrm. 3

Dispositive Motion Hearing 7/5/11 10:00

Ctrm. 10

Settlement Conference Date: Pre-Trial Conference Date: 10/31/11 11:00 Ctrm. 3

Ctrm. 3 (CT-5 days) Trial Date: 12/13/11 9:00

SCHEDULING CONFERENCE ORDER AND RELATED COUNTERCLAIM

I. Date of Scheduling Conference. October 7, 2010.

III. Summary of Pleadings

A. Plaintiff/Counterdefendant's Brief Statement of the Case

1. Pac-West filed its complaint in response to AT&T's unlawful refusal to pay Pac-West for the work Pac-West has performed and continues to perform as an input to AT&T's provision of long-distance calling services to AT&T's customers.

2. Both parties are telecommunications carriers. By way of background, there are two types of telecommunications carriers at issue in this case: local exchange carriers ("LECs") and interexchange carriers ("IXCs"), also known as long-distance carriers. Under both federal and state regulations, IXCs are required to pay LECs' "access charges" for the input access services the LECs provide in carrying the calls that enable an IXC to offer its for-profit long-distance service. These access charges are set forth in regulated price lists, known as tariffs, filed with the Federal Communications Commission ("FCC") and state public service commissions. The FCC has jurisdiction over telecommunications traffic between calling and called parties in different states, while state public service commissions have jurisdiction over telecommunications traffic between callers in the same state.

3. Plaintiff/Counterdefendant is a certificated local exchange carrier and has tariffs on file with the FCC and the public service commissions in the states of Arizona, California, Colorado, Idaho, Nevada, Oregon, Texas, Utah, and Washington. These tariffs describe the rates, terms, and conditions under which Pac-West provides its access services to IXCs, AT&T included. Pac-West has provided AT&T the tariffed services for which it has billed AT&T. But AT&T now refused to pay Pac-West's lawfully assessed access charges for the work Plaintiff performs for AT&T's benefit. Prior to April 2010, AT&T paid Pac-West's invoices at Pac-West's tariffed rates, but after April 2010 AT&T ceased paying for all of the services it takes from Pac-West. AT&T has no basis for withholding any of Pac-West's charges. Pac-West therefore seeks an order compelling AT&T to pay the amounts it has withheld from Pac-West since April 2010 and to pay Pac-West's invoices going forward.

B. Defendants/Counterclaimants' Brief Statement of the Case

1. Pac-West has charged AT&T for tariffed "switched access" services that it did not provide. It is axiomatic that a carrier cannot lawfully bill or collect tariffed charges unless it has a valid tariff on file and in fact provides those services described in the tariff pursuant to the terms and conditions in the tariff and the governing statutes and rules.

2. There are two primary types of switched access charges that Pac-West has unlawfully assessed on AT&T:

"originating" switched access charges and "terminating" switched access charges. On the originating side, Pac-West has unlawfully assessed switched access charges on AT&T for calls that did not "originate" from Pac-West's local customers or even in Pac-West's local service territories. Although discovery will be necessary to determine the precise routing of the traffic at issue, certain of the calls at issue actually originated in countries or states far from Pac-West's networks and were then fraudulently "re-originated" by Pac-West to make it appear as if Pac-West was entitled to collect end office local switching and other switched access charges for such traffic.

3. Some of these calls were originated by parties engaged in unlawful schemes to route enormous volumes of computer-generated "dead air" and "tone-at-interval" calls to AT&T "8YY" customers' call centers (e.g., 1-800, 1-888, and 1-877 numbers) for the sole purpose of generating access charge billings that Pac-West would share with the fraudsters. In other cases Pac-West "re-originated" calls that were actually initiated by customers of wireless and Voice over Internet Protocol ("VoIP") providers. In each case, Pac-West unlawfully billed and collected charges from AT&T as if Pac-West was itself originating these calls from its own end user customers.

4. Pac-West's switched access charges on the terminating side are unlawful for similar reasons because the traffic at issue did not "terminate" in Pac-West's local service territory or to Pac-West's local customers. Rather, the calls were merely routed through Pac-West facilities to distant locations on other networks - in many cases to foreign countries in connection with schemes to provide "free" or low-cost calling to foreign countries funded by Pac-West's unlawful access charge collections. Upon information and belief, Pac-West agreed to share its access charge collections with the sponsors of these calling schemes (or other intermediate carriers).

5. Pac-West sent invoices to AT&T containing charges for switched access services that it purportedly provided pursuant to its interstate and intrastate tariffs. AT&T paid these invoices until April 2010, when it disputed Pac-West's invoices and began withholding payment after discovering PacWest's unlawful billing practices. Through its Counterclaims, AT&T is seeking a refund of the unlawful charges that AT&T already has paid, and a declaratory ruling that such charges are unlawful and need not be paid in the future.

IV. Orders Re Amendments To Pleadings

1. The parties agree that amendments may be filed without leave of court or other requirement of a Rule 15 motion on or before December 24, 2010. The parties agree that responses to any amended pleadings shall be filed within twenty (20) days after electronic service.

V. Factual Summary

A. Admitted Facts Which Are Deemed Proven Without Further Proceedings

1. Plaintiff/Counterdefendant Pac-West Telecomm, Inc. is a corporation incorporated under the laws of the State of California and is a competitive local exchange carrier ("CLEC") that operates primarily in Arizona, California, Colorado, Idaho, Nevada, Oregon, Texas, Utah and Washington.

2. Defendant/Counterclaimant AT&T Communications of California, Inc. is a California corporation and AT&T Corp., a corporation incorporated under the laws of the State of New York.

3. Defendants/Counterclaimants are, among other things, interexchange carriers that provide interstate and intrastate interexchange service throughout the United States.

4. Defendants/Counterclaimants have disputed Plaintiff/Counterdefendant's current and past invoices.

B. Contested Facts

1. Pac-West submits that its invoices to AT&T accurately reflect the tariffed services it provides to ...


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