AT&T Urges 3rd Circuit to Affirm Core Summary Judgment Decision In Its Favor
The district court correctly concluded that when purchasing toll-free calls from third parties that were destined for AT&T’s customers, Core Communications didn’t provide its tariffed switched access services to AT&T and therefore couldn’t collect from AT&T its tariffed rates for that service, said AT&T’s appellee brief Thursday (docket 23-3022) at the 3rd U.S. Circuit Appeals Court. Core’s appeal seeks to reverse the district court’s Oct. 13 summary judgment decision in AT&T’s favor (see 2310160018).
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Core says it’s a telephone company, “but it has no callers as customers,” said AT&T’s brief. Core instead pays others to send calls to it, it said. The record showed that Core buys all its toll-free calls from third parties, “which themselves often bought the calls from others that do the same,” it said.
Core receives the purchased toll-free calls over the internet, and it sends the calls over the internet to local phone companies that send the calls to AT&T, said the brief. Those local phone companies pay Core, by contract, “for the little work it does,” it said: “But Core wants more. It also wants to force AT&T to pay Core’s tariffed rates for those calls.”
The district court “correctly rejected” Core’s effort, said the brief. The court first found -- in a ruling that Core doesn’t challenge -- “that it was Core’s burden to show that the toll-free calls it purchased were bona fide calls, rather than automated calls designed to maximize charges the toll-free provider pays,” it said. The “undisputed record” suggested that Core couldn’t meet that burden, because it has no idea who or what dialed the calls it bought, it said.
The district court next found that it could bypass that issue and other issues that AT&T raised on summary judgment by resolving a simpler one: whether Core provided AT&T with the service that Core defined in its tariff, said the brief. The district court correctly held that Core didn’t do so, it said.
Core’s tariff defines the originating switched access service it billed to AT&T as involving the transmission of a call from a company end user, through Core, to the customer, allegedly AT&T, which then delivers it to the customer’s end user, said the brief. But there is no company end user, as Core defined the term in its tariff, because no one on Core’s side of the call “pays Core anything for any service,” it said.
Core thus didn’t provide its tariffed switched access service, and AT&T isn’t Core’s customer, said the brief. The district court’s ruling “is a straightforward application of the century-old filed rate doctrine,” which prevents phone companies from charging their tariffed rates, “unless they provide the corresponding tariffed service exactly as the tariff describes it,” it said.
Core raises many challenges to that decision, three of which are “brand new,” said the brief. Core never argued to the district court that everyone in the call path, except Core, is a company end user, that AT&T constructively ordered Core’s service, or that enforcing a tariff “is the same as invalidating it,” it said.
Core thus waived those arguments, and the 3rd Circuit shouldn’t consider them, said the brief. But the new arguments, like the “preserved ones,” also lack merit, it said. Core had to follow the terms of its tariff to bill AT&T its tariffed rates, it said. None of its arguments shows that it did so. The 3rd Circuit should uphold the district court’s summary judgment decision in AT&T's favor, it said.