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Pac-West Telecomm, Inc. v. MCI Communications Services

October 8, 2010

PAC-WEST TELECOMM, INC., PLAINTIFF,
v.
MCI COMMUNICATIONS SERVICES, INC. D/B/A VERIZON BUSINESS SERVICES, DEFENDANT.



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

CONFERENCE ORDER AMENDED SCHEDULING

Mid-Discovery Status Reports Due: 2/14/11

Mid-Discovery Hearing: 2/25/11 8:15 Ctrm. 3

Discovery Cut-Off: 4/11/11

I. Date of Scheduling Conference

Filing Deadline: 7/20/11 Non-Dispositive Motion

Non-Dispositive Motion Hearing Date: 8/26/11 9:00 Ctrm. 10

Deadline: 8/1/11 Dispositive Motion Filing

Dispositive Motion Hearing Date: 9/26/11 10:00 Ctrm. 3

Settlement Conference Date: 7/5/11 10:00 Ctrm. 10

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

Trial Date: 12/13/11 9:00 Ctrm. 3 (CT-3 days) October 7, 2010.

III. Summary of Pleadings

1. Pac-West filed its complaint in response to Verizon's unlawful refusal to pay Pac-West for the work Pac-West has performed and continues to perform as an input to Verizon's provision of long-distance calling services to Verizon'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 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, Verizon included. Pac-West has provided Verison the tariffed services for which it has billed Verizon. But Verizon now refuses to pay Pac-West's lawfully assessed access charges for the work Plaintiff performs for Verizon's benefit. Prior to June 2009, Verizon paid PacWest's invoices at Pac-West's tariffed rates, but after June 2009 Verizon ceased paying for the services it takes from Pac-West. Verizon has no basis for withholding any of Pac-West's charges. Pac-West therefore seeks an order compelling Verizon to pay the amounts it has withheld from Pac-West since June 2009 and to pay Pac-West's invoices going forward.

4. Verizon Business seeks relief from Pac-West's persistent billing and past collection of unlawful charges allegedly authorized by its federal and state tariffs. Since at least August 2008, Pac-West has sent Verizon Business monthly invoices that included charges that Verizon Business did not owe and that Pac-West was not entitled to collect.

5. In the course of its operations, Verizon Business has carried interstate and intrastate long-distance calls that routed through Pac-West's network, either because those calls are destined to (or were originated by) customers who purchased local telephone service from Pac-West or because Pac-West entered into an arrangement with another company (often a wireless carrier or a Voice over Internet Protocol ("VoIP") provider) pursuant to which long-distance calls to (or by) that company's customers (who are not themselves customers of Pac-West) are routed through Pac-West's network.

6. Pac-West has submitted invoices to Verizon Business for tariffed services that Pac-West claims to have provided to Verizon Business in the course of handling those long-distance calls. Those invoices contain errors that make it impossible for Verizon Business to validate the charges therein, and include millions of dollars of charges that Verizon Business does not owe, including (a) charges for services that Pac-West did not in fact provide, (b) charges that were not authorized by any valid federal or state tariff, and (c) charges that exceed the maximum rates permitted to be imposed by tariff under applicable federal law.

7. Before becoming aware of the numerous defects and improprieties in Pac-West's invoices, Verizon Business paid Pac-West substantial amounts of money that it did not owe. Verizon Business now seeks to recover that money and to obtain declaratory relief to compel Pac-West to cease its unlawful practices.

IV. Orders Re Amendments To Pleadings

1. The Complaint has been amended to designate the correct Defendant entity, MCI Communications Services, Inc. d/b/a Verizon Business Services, the real Defendant-party in interest. The parties do not currently contemplate the need for amending the pleadings.

V. Factual Summary

A. Admitted Facts Which Are Deemed Proven Without Further Proceedings

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

2. Defendant, MCI Communications Services, Inc. d/b/a Verizon Business Services, is a corporation incorporated under the laws of the State of Delaware that operates as an interexchange carrier that provides interstate and intrastate interexchange service throughout the United States.

3. Commencing in July 2009, Defendant disputes Plaintiff's current and past invoices and has withheld payments of disputed amounts invoiced from June 2009 through the present.

B. Contested Facts

1. Pac-West submits that its invoices to Verizon accurately reflect the tariffed services it provides to Verizon, and have always done so. As an accommodation to Verizon, Pac-West has agreed to reformat and make other cosmetic changes to its invoices at Verizon's request to enable Verizon to (re)verify that Pac-West is indeed providing Verizon the services for which it bills Verizon. By these actions, however, Pac-West does not admit that its invoices, as previously formatted, were in any way deficient or did not provide Verizon with sufficient information to calculate the charges owed to Pac-West for the services Pac-West has performed for Verizon pursuant to the terms and conditions of Pac-West's tariffs.

2. The nature of the telecommunications traffic for which Pac-West has billed Verizon.

3. The amount of the traffic for which Pac-West has billed Verizon that is jurisdictionally interstate and intrastate.

4. The amount of the traffic for which Pac-West has billed Verizon that is originated by or delivered to customers of wireless carriers.

5. The amount of the traffic for which Pac-West has billed Verizon that is originated by or delivered to customers of Voice over Internet Protocol ("VoIP") providers.

6. Whether the entities to (or from) which Pac-West delivered (or received) the traffic for which it billed Verizon are bona fide end-user customers of Pac-West.

7. The facilities Pac-West uses in carrying the traffic for which it billed Verizon.

8. The number of minutes of traffic for which Pac-West billed Verizon that Pac-West actually routed over its CLEC network.

9. The central offices used by Pac-West or other carriers to switch the traffic for which Pac-West billed Verizon.

VI. Legal Issues

A. Uncontested

1. Jurisdiction exists under 28 U.S.C. § 1331 and 47 U.S.C. §§ 151, et seq. Jurisdiction is also invoked under 28 U.S.C. § 1367.

2. Venue is proper under 28 U.S.C. § 1391.

3. The parties agree that for supplemental claims where applicable tariffs apply, the substantive law of the State of Arizona, California, Colorado, Idaho, Nevada, Oregon, Texas, Utah ...


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