*Pages 1--15 from Microsoft Word - 32379* Federal Communications Commission FCC 03- 244 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Joint Petition for Declaratory Ruling on the Assignment of Accounts (Traffic) Without the Associated CSTP II Plans Under AT& T Tariff F. C. C. No. 2 On Referral by the United States Court of Appeals for the Third Circuit Combined Companies, Inc. and Winback & Conserve Program, Inc., One Stop Financial, Inc., Group Discounts, Inc., 800 Discounts, Inc., Petitioners, and AT& T Corp., Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Internal File No. CCB/ CPD 96- 20 MEMORANDUM OPINION AND ORDER Adopted: October 14, 2003 Released: October 17, 2003 By the Commission: I. INTRODUCTION 1. This Memorandum Opinion and Order addresses the Joint Petition for Declaratory Ruling filed by Petitioners Winback & Conserve Program, Inc., One Stop Financial, Inc., Group Discounts, Inc., 800 Discounts, Inc. (the Inga Companies) and Combined Companies, Inc. (collectively Petitioners). Petitioners’ requests for declaratory relief stem from a question referred to us, under the doctrine of primary jurisdiction, by the United States Court of Appeals for the Third Circuit. 1 The question referred by the Third Circuit is “‘ whether section 2.1.8 [of AT& T’s Tariff FCC No. 2] permits an aggregator to 1 Combined Co., Inc., Winback and Conserve Program, Inc., One Stop Fin. Inc., 800 Discounts, Inc., and Group Discounts, Inc. v. AT& T Corp., No. 96- 5185 (3d Cir. filed May 31, 1996)( Third Circuit Opinion); see also Combined Companies, Inc., et al. v. AT& T Corp., Civil Action No. 95- 908 (D. N. J. filed May 19, 1995)( First District Court Opinion); Combined Companies, Inc., et al. v. AT& T Corp., Civil Action No. 95- 908 (D. N. J. filed Mar. 5, 1996)( Second District Court Opinion). 1 Federal Communications Commission FCC 03- 244 2 transfer traffic under a [tariffed] plan without transferring the plan itself in the same transaction. ’” 2 Interpretation of AT& T’s tariff is a matter within this agency’s expertise. 3 We conclude that AT& T’s tariff did not prohibit such a movement of traffic and thus permitted it. Accordingly, AT& T’s conduct was unauthorized and violated section 203 of the Communications Act. We explain our conclusions below. II. BACKGROUND 2. AT& T is a telecommunications carrier regulated under Title II of the Communications Act of 1934, as amended (the Act). At the time these events occurred, AT& T was a dominant provider of interstate telecommunications services and, as such, offered the services at issue under tariffs, which it filed with the Commission pursuant to section 203 of the Act. 4 The Inga Companies were non- facilities- based aggregator/ resellers of AT& T’s inbound 800 Wide Area Telecommunications Service (WATS). 5 Prior to June 17, 1994, the Inga Companies completed and signed AT& T’s “Network Services Commitment Form” for WATS under AT& T’s Customer Specific Term Plan II (CSTP II), a tariffed plan, which offered volume discounts off AT& T’s regular tariffed rates. 6 The CSTP II was set forth in AT& T’s Tariff FCC No. 2 (Tariff). 7 The Inga Companies committed to aggregate $54 million worth of 800 services per year under their nine CSTP II plans. 8 This volume of traffic qualified for a discount of 28 percent off AT& T’s regular tariffed rates – a 23 percent discount under the CSTP II plan, combined with an additional 5 percent discount available under the tariffed Revenue Volume Pricing Plan (RVPP). 9 The Inga Companies resold their AT& T’s WATS service at a discount off AT& T’s tariffed rates to third-party end- users, generally smaller business customers using 800 lines, which could not qualify individually for volume discounts. 10 These small businesses were the Inga Companies’ customers. 11 The Inga Companies aggregated these end- users’ 800 traffic under the CSTP II/ RVPP. 12 2 See Third Circuit Opinion at 3 (quoting First District Court Opinion at 15). 3 See Bell Atlantic- Delaware, Inc., et al. v. Global Naps, Inc., File No. E- 99- 22- R, Order on Reconsideration, 15 FCC Rcd 5997, 6005, para. 22 & n. 55 (2000)( and cases cited therein); rev. denied, 247 F. 3d 252 (D. C. Cir. 2001), cert denied, 534 U. S. 1079 (2002). 4 See First District Court Opinion at 2 n. 2. Subsection 203( a) of the Communications Act requires every common carrier to file with the Commission “schedules,” i. e., tariffs, “showing all charges” and “showing the classifications, practices, and regulations affecting such charges.” 47 U. S. C. § 203( a). 5 See Third Circuit Opinion at 2; First District Court Opinion at 3. 6 Joint Petition for Declaratory Ruling, Internal File No. CCB/ CPD 96- 20 (filed July 15, 1996) (Petition) at 9; see Comments of AT& T Corp. in Opposition to Joint Petition for Declaratory Ruling and Joint Motion for Expedited Consideration, CCB/ CPD 96- 20 (filed Aug. 26, 1996) (Opposition) at 4; First District Court Opinion at 3- 4. 7 First District Court Opinion at 3; see generally AT& T Corp. Further Comments, CCB/ CPD 96- 20 (filed Apr. 2, 2003) (AT& T Further Comments) at Attachment 1 (AT& T Tariff FCC No. 2 at § 3. 3. 1. Q. (AT& T 800 Customer Specific Term Plan II), 18 th rev. p. 61. 16 (eff. Dec. 12, 1994), 6 th rev. p. 61. 16.1 (eff. Mar. 11, 1994), 12 th rev. p. 61. 17 (eff. Mar. 11, 1994)). 8 See First District Court Opinion at 7, 8 n. 8; cf. Petition at 11 (Inga Companies committed to a volume of $4 million per month). 9 See First District Court Opinion at 3- 5. 10 First District Court Opinion at 3- 4. 11 See First District Court Opinion at 3; AT& T Further Comments at 6- 10 (citing, inter alia, AT& T Corp. v. Winback and Conserve Program, Inc., File No. E- 97- 02, Memorandum Opinion and Order, 16 FCC Rcd 16074, 16075, para. 3 (2001)). 12 First District Court Opinion at 3- 4. 2 Federal Communications Commission FCC 03- 244 3 3. Section 2.1.8 of AT& T’s Tariff FCC No. 2 provided for the transfer or assignment of tariff plans. 13 In December 1994, the Inga Companies and CCI, a new or previously inactive company, 14 executed certain Transfer of Service Agreement and Notification (TSA) forms transferring the nine Inga Company CSTP II/ RVPP plans to CCI. 15 They requested that AT& T permit the transfer of these plans to CCI. 16 Although AT& T initially refused to accept the transfer unless CCI provided a deposit of $13,540,000, 17 the transfer ultimately was effected without a deposit, under a May 1995 order of the United States District Court for the District of New Jersey. 18 Thus, CCI was the legitimate transferee of the Inga Companies’ CSTP II/ RVPP plans and customer of AT& T. 19 4. AT& T sold inbound and outbound services under Contract Tariff 516 (CT 516) to PSE, an aggregator/ reseller unrelated to either the Inga Companies or CCI. 20 With an annual commitment of $4 million, which included 15 million minutes of 800 services per year, the CT 516 discount available to PSE was 66 percent off AT& T’s regular tariffed rates. 21 CCI wanted the CT 516 discount, which was significantly larger than that available under its CSTP II/ RVPP plans. Accordingly, CCI and PSE jointly executed and submitted to AT& T nine TSA forms for each of the nine plans. 22 At the bottom of each TSA, in handwriting, these parties directed AT& T to move the “traffic only” on each plan to PSE. 23 The January 13 letter, under which these nine TSAs were forwarded, directs AT& T to “move the locations associated with these plans [but] not ... in any way to discontinue the plans.” 24 In this way, CCI and PSE attempted to move to PSE the end- user traffic associated with each of the nine CSI CSTP II/ RVPP plans, but not to move the actual plans themselves. 25 Having refused to recognize the original transfer from the 13 First District Court Opinion at 6; see Exhibit I to Petition (AT& T Tariff FCC No. 2 at § 2. 1. 8 (Transfer or Assignment), 14 th rev. p. 20 (eff. Apr. 21, 1994)). 14 First District Court Opinion at 7- 8 & n. 6; Opposition at 4. 15 See First District Court Opinion at 7. 16 See First District Court Opinion at 7. 17 First District Court Opinion at 7. This constituted one quarter of the companies’ annual revenue commitment. Id. at 8. 18 Combined Companies, Inc., etc. and Winback & Conserve Program, Inc., et al. v. AT& T Corp., Civil Action No. 95- 908, Preliminary Injunction (filed May 19, 1995) (First Preliminary Injunction); see generally First District Court Opinion. The district court found that section 2.1.8 of AT& T’s tariff, which governed the transfer of plans, was not conditioned upon the provision of a deposit and that the Inga Companies had otherwise met the requirements of section 2.1.8. See First District Court Opinion at 20- 21; accord 47 C. F. R. § 61. 54( j)( 1994)( special rules affecting a particular item must be specifically referred to in connection with such item). 19 Because the district court ultimately found that AT& T’s refusal to accept the transfer from the Inga Companies to CCI was improper and ordered AT& T to accept it, we assume the legitimacy of that transfer, retroactive to the time when it should have occurred. 20 See First District Court Opinion at 4- 5; Petition at 10- 11. According to the record, PSE “combine[ d] outbound calling services with its [800] IWATS resale operations, and thus – presumably – can cater more to the overall needs of the small businesses it services.” First District Court Opinion at 4- 5. 21 See First District Court Opinion at 5; AT& T Contract Tariff FCC No. 516 at § 3 (eff. Oct. 20, 1993). 22 First District Court Opinion at 10; see Exhibit H to Petition. 23 See First District Court Opinion at 10; Exhibit H to Petition. 24 See Exhibit H to Petition. 25 See First District Court Opinion at 10. 3 Federal Communications Commission FCC 03- 244 4 Inga Companies to CCI, AT& T also refused to move the traffic from CCI to PSE. 26 5. The Inga Companies and CCI sued AT& T in the United States District Court for the District of New Jersey in February, 1995, alleging violations of the Communications Act in connection with AT& T’s refusal to accept the transfer from the Inga Companies to CCI; and refusal to move traffic from CCI to PSE. 27 On plaintiffs’ motion for a writ of peremptory mandamus (preliminary injunction) under 47 U. S. C. § 406 (Mandamus to Compel Furnishing of Facilities), the district court entered a preliminary injunction in May 1995, ordering AT& T to accept the first transfer. 28 To determine whether it should also order AT& T to move the traffic from CCI to PSE, the court requested, under the primary jurisdiction doctrine, that the Commission interpret a certain section of AT& T’s tariff. 29 Specifically, the district court referred to the Commission “the issue of the transfer of the aforesaid plans and/ or their traffic as between Combined Companies, Inc. and Public Service Enterprises of Pennsylvania, Inc. and its compliance or not with the terms of the governing tariff.” 30 6. Neither party brought the primary jurisdiction question to the agency. 31 Instead, the aggregators went back to the district court. 32 On reconsideration, in a March 5, 1996 decision, the district court made its own substantive finding on the previously referred issue. 33 Notwithstanding its intent to “defer to the FCC on the interpretation of the Tariff provisions governing plaintiffs’ proposed transaction,” but contemplating a Commission ruling favorable to the aggregators, the court entered a preliminary injunction pending outcome of the Commission determination, and ordered AT& T to “recognize the transfer” of traffic between CCI and PSE and to provide service at the CT 516 rates. 34 AT& T appealed the district court’s order to the Third Circuit, which, on May 31, 1996, vacated the lower court’s March 5 decision as inconsistent with the primary jurisdiction referral, and reordered the parties to bring the issue to the Commission. 35 7. On July 15, 1996, the aggregators filed a petition with the Commission in which, “based on established Commission practice, policies, and precedents, the plain language of § 203 of the Communications Act of 1934, as amended, F. C. C. Rule 61.54( j), and Sections 201 and 202 of the Act,” 26 First District Court Opinion at 10. Compare Petition at 13 (“ Initially AT& T asserted that CCI was not the ‘customer of record’ for the Plans (based on what the District Court later determined was AT& T’s unlawful refusal to accept the Inga Companies’ transfer per the TSAs as determined by the District Court), and, hence, had no authority to order the transfer of the traffic under the Plans to PSE’s Contract Tariff 561”) with Opposition at 5 (“ AT& T objected on the grounds that Section 2.1.8 did not authorize the transfer of a plan unless the transferee, in this case PSE, assumes the original customer’s liability and that the location- only transfer violated the ‘fraudulent use’ provisions of Section 2.2.4 of its tariff because the transfer had both the purpose and the effect of avoiding the payment, in whole or in part, of tariffed shortfall and termination charges.” (footnote omitted)). 27 See generally First District Court Opinion; Opposition at 5- 6. 28 First District Court Opinion at 1, 21; see First Preliminary Injunction. 29 See First District Court Opinion at 15- 17. 30 First Preliminary Injunction; see also First District Court Opinion at 15 (“ whether section 2.1.8 permits an aggregator to transfer traffic under a plan without transferring the plan itself in the same transaction”). 31 See Third Circuit Opinion at 3- 4, 6. 32 See Third Circuit Opinion at 3- 4, 6. 33 See generally Second District Court Opinion. 34 Second District Court Opinion at 2 n. 2, 16; Combined Companies, Inc., et al. v. AT& T Corp., Civil Action No. 95- 908, Preliminary Injunction (filed Mar. 5, 1996) (Second Preliminary Injunction). 35 See Third Circuit Opinion at 7- 8. 4 Federal Communications Commission FCC 03- 244 5 they sought declaratory rulings on four issues. 36 By separate cover motion, the aggregators also sought expedited consideration of their petition for declaratory ruling because, they alleged, AT& T was unlawfully billing certain charges to the aggregators’ end- users. 37 AT& T filed Comments in Opposition on August 26, 1996, and Petitioners filed Reply Comments on September 23, 1996. 38 On February 13, 2003, the Bureau released a Public Notice inviting comment on two discrete questions that were not squarely addressed by the parties on the prior record. 39 Specifically, the Bureau first asked the parties to “comment on the nature of the relationship, if any, between AT& T and the end- user customers of AT& T’s customers, under AT& T’s Tariff FCC No. 2 generally, and specifically under the tariff provisions governing the RVPP and CSTP II Plans at issue in this matter.” 40 Second, the Bureau asked the parties to “comment on the remedy that AT& T’s Tariff FCC No. 2 specifies that AT& T may exercise if AT& T has reason to believe that its customer is violating section 2.2.4. A. 2 of that tariff by ‘[ u] sing or attempting to use WATS with the intent to avoid the payment, either in whole or in part, of any of the Company’s tariffed charges by … [u] sing fraudulent means or devices, tricks, [or] schemes. ’” 41 Comments were filed in response to this Public Notice. 42 III. DISCUSSION A. Whether AT& T’s Tariff Permitted the Movement of End- User Traffic Without The Plans 8. The district court asked “whether section 2.1.8 [of AT& T’s Tariff] permits an aggregator to transfer traffic under a plan without transferring the plan itself in the same transaction.” 43 Similarly, 36 See Petition at 7- 8. 37 Joint Motion for Expedited Consideration of the Joint Petition for Declaratory Ruling, Internal File No. CCB/ CPD 96- 20 (filed July 15, 1996) (Joint Motion for Expedited Consideration). 38 See Opposition; Joint Reply of Petitioners, CCB/ CPD 96- 20 (filed Sept. 23, 1996) (Reply). 39 Further Comment Requested on the Joint Petition for Declaratory Ruling on the Assignment of Accounts (Traffic) Without the Associated CSTP II Plans Under AT& T Tariff F. C. C. No. 2, Internal File No. CCB/ CPD 96- 20, Public Notice, 18 FCC Rcd 1887 (2003) (Second Public Notice). The deadline for filing further comments was extended twice. See Joint Petition for Declaratory Ruling on the Assignment of Accounts (Traffic) Without the Associated CSTP II Plans Under AT& T Tariff F. C. C. No. 2, Internal File No. CCB/ CPD 96- 20, Order, 18 FCC Rcd 3284 (WCB 2003); Joint Petition for Declaratory Ruling on the Assignment of Accounts (Traffic) Without the Associated CSTP II Plans Under AT& T Tariff F. C. C. No. 2, Internal File No. CCB/ CPD 96- 20, Order, 18 FCC Rcd 5713 (WCB 2003). 40 Second Public Notice, 18 FCC Rcd at 1887. 41 Second Public Notice, 18 FCC Rcd at 1887- 88. 42 See Comments of 800 Discounts, Inc., One Stop Financial, Inc., Winback and Conserve Program Inc., Group Discounts, Inc., CCB/ CPD 96- 20 (filed Apr. 2, 2003); AT& T Further Comments; Comments of Joseph Kearney, CCB/ CPD 96- 20 (filed Apr. 2, 2003); Comments of Verizon, CCB/ CPD 96- 20 (filed Mar. 6, 2003); Reply Comments of 800 Discounts, Inc., One Stop Financial, Inc., Winback and Conserve Program Inc., Group Discounts, Inc., CCB/ CPD 96- 20 (filed Apr. 15, 2003); AT& T Corp. Further Reply Comments, CCB/ CPD 96- 20 (filed Apr. 15, 2003); see also Letter from Alfonse G. Inga to Marlene Dortch, Secretary, FCC (filed Feb. 28, 2003); Letter from Alfonse G. Inga, President, The Inga Companies, to Judith Nitsche and Secretary, FCC (filed Apr. 23, 2003); Letter from Aryeh Friedman, Senior Attorney, AT& T, to Judith Nitsche, Assistant Division Chief, Pricing Policy Division, FCC (filed Apr. 28, 2003); Letter from Alfonse G. Inga, The Inga Companies, to Judith Nitsche and Secretary, FCC (filed May 5, 2003). 43 First District Court Opinion at 15; see also Third Circuit Opinion at 3. Similarly, in its ordering clause, the district court questioned whether the transfer of traffic without the CSTP II Plans “compli[ ed] or not with the terms of the governing tariff.” First Preliminary Injunction at 2. 5 Federal Communications Commission FCC 03- 244 6 petitioners’ first request for declaratory relief asks the Commission to find that “[ a] t the time of the attempted transfer … in or about January, 1995, by CCI to PSE of the end user traffic under the CSTP II plans held by CCI, neither Section 2.1.8 of AT& T’s Tariff F. C. C. No. 2, nor any other provision of AT& T’s Tariff ... prohibited CCI from transferring that traffic without also transferring the CSTP II plans with which that traffic was associated.” 44 We conclude that section 2.1.8 of AT& T’s tariff did not address or govern CCI’s and PSE’s request and that its respective tariffs with CCI and PSE permitted the movement of traffic at issue here. 1. Section 2.1.8 9. In court and before the Commission, AT& T argues that section 2.1.8 of Tariff No. 2 did not authorize the transfer of traffic without a plan unless the transferee assumed the original customer’s liability. 45 In January 1995, when these events occurred, section 2.1.8 of AT& T’s Tariff provided that a customer could transfer “WATS” to a “new Customer” only if the new customer confirmed “in writing that it agrees to assume all obligations of the former Customer at the time of transfer or assignment.” 46 AT& T explains that in this context “WATS” means CSTP II plans. 47 We conclude that section 2. 1.8 of AT& T’s Tariff did not address – and therefore did not preclude or otherwise govern – the movement of 44 Petition at 7- 8. Tracking the language of section 2. 1. 8, petitioners refer to the requested movement of traffic from CCI to PSE as a “transfer (assignment).” See, e. g., Petition at 7- 8 (Requests No. 1, 3). AT& T uses the term “transfer.” See Opposition. We find that the relocation of end- user traffic from CCI to PSE would simply have been a movement of traffic from one AT& T aggregator to another. We note that the agreement between CCI and PSE expressly provided for the return of accounts to CCI upon request. See Exhibit G to Petition. On a separate point, we note that the deposit provision of AT& T’s tariff is not implicated here. In their first and third requests, petitioners seek, inter alia, declarations that AT& T had no basis to require a deposit to effect the movement of traffic without the associated plans. See Petition at 7- 8. AT& T, however, does not argue that any deposit was required to effect the movement of traffic from CCI to PSE and notes that the deposit requirement related to the earlier transfer from the Inga Companies to CCI. See Opposition at 9 n. 8. 45 See Opposition at 5; see also First District Court Opinion at 10. 46 The full text of section 2.1.8 is as follows – Transfer or Assignment – WATS, including any associated telephone number( s), may be transferred or assigned to a new Customer, provided that: A. The Customer of record (former Customer) requests in writing that the Company transfer or assign WATS to the new Customer. B. The new Customer notifies the Company in writing that it agrees to assume all obligations of the former Customer at the time of transfer or assignment. These obligations include (1) all outstanding indebtedness for the service and (2) the unexpired portion of any applicable minimum payment period( s). C. The Company acknowledges the transfer or assignment in writing. The acknowledgement will be made within 15 days of receipt of notification. The transfer or assignment does not relieve or discharge the former Customer from remaining jointly and severally liable with the new Customer for any obligations existing at the time of transfer or assignment. These obligations include: (1) all outstanding indebtedness for WATS, and (2) the unexpired portion of any applicable minimum payment period( s). When a transfer or assignment occurs, a Record Change Only Charge applies (see Record Change Only, Section 3). Nothing herein or elsewhere in this tariff shall give any Customer, assignee, or transferee any interest or proprietary right in any 800 Service telephone number. Exhibit I to Petition (AT& T Tariff FCC No. 2, 14 th rev. p. 20, (eff. Apr. 21, 1994)). 47 Opposition at 10. 6 Federal Communications Commission FCC 03- 244 7 end- user traffic from one aggregator to another, as CCI and PSE sought to effect in this case. 48 Section 2.1.8 concerned the wholesale transfer of “WATS” (which, according to AT& T itself, means “plans”) from one customer to another. As such, its purpose was to maintain intact the balance of obligations and benefits between parties under the tariff when one customer stepped into the shoes of another. Thus, when, in December 1994, the Inga Companies transferred their CSTP II/ RVPP plans to CCI, they were required to meet the conditions of section 2.1. 8. Here, by contrast, CCI sought to move only the end- user traffic it had aggregated under its CSTP II out of that plan. PSE, in turn, sought to move that traffic into its CT 516. CCI did not seek to transfer the CSTP II/ RVPP plans wholesale to PSE. Rather than a single transfer request, here CCI and PSE effectively made two requests: one by CCI to AT& T to decrease its traffic; and another by PSE to AT& T to increase its traffic. CCI and PSE retained the benefits and obligations of their respective agreements with AT& T. We note in this regard that both the forms submitted to AT& T and the agreement between CCI and PSE stated that CCI would continue to subscribe to its existing CSTP II plans. 49 Thus, CCI still would have to meet its tariffed commitments, without the use of the traffic moved to PSE, and AT& T also would remain obligated to CCI under the terms of Tariff No. 2. 50 The moved traffic would be used to meet PSE’s CT 516 volume commitments and, once moved, would no longer be associated with CCI’s CSTP II. If the traffic were moved away from CCI under Tariff 2, to PSE under Contract Tariff 516, AT& T would get less money for the same traffic – the traffic would be discounted 66 percent instead of 28 percent. 51 Implementing the carriers’ request required AT& T only to move traffic – first, out of CCI’s CSTP II, and second, into PSE’s CT 516. As to whether the carriers’ requests were permissible, we note that AT& T’s tariffs with these carriers did not prohibit the addition or subtraction of traffic. 52 Accordingly, in response to the district court’s question, “whether 48 Ambiguities in a tariff are to be resolved against the carrier and favorably to customers. The Associated Press Request for Declaratory Ruling, File TS- 11- 74, Memorandum Opinion and Order, 72 FCC 2d 760, 764- 65, para. 11 (1979) (citing Commodity News Services, Inc. v. Western Union, 29 FCC 1208, 1213, para. 3, aff’d, 29 FCC 1205 (1960)). 49 See Exhibits G and H to Petition. 50 CCI and PSE did agree that the traffic could be returned to CCI upon 30 days written notice from CCI that AT& T required CCI to meet its commitments. See Exhibit G to Petition. Accordingly, at least theoretically, the traffic might have been returned to CCI at some point to enable it to meet any CSTP II obligations. Cf. Reply at 10 (arguing CCI would receive more net income, and thus have more money available to pay any charges, after the traffic was moved to PSE). We do not speculate whether the traffic ever would have been moved back or whether it or some other development would have satisfied CCI’s CSTP II commitments because AT& T did not move the traffic from CCI to PSE. 51 See First District Court Opinion at 5. Exhibit G to the Petition, a letter agreement between CCI and PSE dated January 16, 1995, explains that, once the traffic was moved: (1) CCI’s end- users (formerly the Inga Companies’ end- users) would “be billed by AT& T at the prevailing AT& T Tariff 2 CSTP rates, less twenty three percent (23%) Customer Specific Term Plan (CSTP) discount, and 5. 5% Revenue Volume Pricing Plan (RVPP) discount”; (2) CCI would get 80 percent “earned credit” for this traffic from PSE; (3) CCI would continue to be responsible to AT& T for any commitment associated with the CSTP II Plans (which would not be discontinued); and (4) PSE would assist in moving accounts back to CCI upon written notice from CCI that AT& T required CCI to meet its commitments. See Exhibit G to the Petition. Thus, the traffic would be discounted 66 percent instead of 28 percent and the end-users would receive a discount off AT& T’s standard tariffed rates greater than the portion of the 28 percent they had received when their traffic was associated with the CSTP II plan. See First District Court Opinion at 3- 5. The discount differential would be apportioned between CCI and PSE according to their letter agreement. See also n. 66, infra. 52 See generally AT& T Tariff FCC No. 2; AT& T Contract Tariff FCC No. 516. As AT& T concedes, the end- users or “locations,” were CCI’s customers, not AT& T’s. See AT& T Further Comments at 6- 10 (citing, inter alia, AT& T Corp. v. Winback & Conserve Program, Inc., 16 FCC Rcd at 16075, para. 3; First District Court Opinion at 3); see also MCI Telecommunications Corp v. AT& T, File No. E- 90- 28, Order, 7 FCC Rcd 5096, 5100, para. 20 (CCB 1992). Because these end- users did not choose AT& T as their primary interexchange carrier, AT& T had neither proprietary interest in these individual end- user locations nor an expectation of revenue from them. See Hi- Rim Communications, Incorporated v. MCI Telecommunications Corporation, File No. E- 96- 14, Memorandum Opinion (continued....) 7 Federal Communications Commission FCC 03- 244 8 section 2.1.8 [of AT& T’s Tariff] permits an aggregator to transfer traffic under a plan without transferring the plan itself in the same transaction,” 53 we conclude that section 2.1.8 of the tariff did not address or govern the movement of traffic without a plan and that AT& T’s respective tariffs with CCI and PSE permitted it. 2. The “Fraudulent Use” Provisions 10. Petitioners’ first request for declaratory relief goes beyond section 2.1.8 and asks the Commission to find that “[ a] t the time of the attempted transfer … in or about January, 1995, by CCI to PSE of the end user traffic under the CSTP II plans held by CCI, neither Section 2.1.8 of AT& T’s Tariff F. C. C. No. 2, nor any other provision of AT& T’s Tariff F. C. C. No. 2, prohibited CCI from transferring that traffic without also transferring the CSTP II plans with which that traffic was associated.” 54 Here and before the district court, AT& T argues that the proposed “location- only transfer violated the ‘fraudulent use’ provisions of Section 2.2.4 of its tariff,” thus justifying AT& T’s refusal to accept the transfer from CCI to PSE. 55 It claims that the transfer from CCI to PSE “had both the purpose and the effect of avoiding the payment, in whole or in part, of tariffed shortfall … charges” 56 because CCI’s entire revenue stream would transfer to PSE, but PSE would have no corresponding obligation to pay any shortfall charges under the CSTP II. 57 Thus, AT& T argues “if only the traffic on the plans and not the plans themselves were transferred to PSE, the liability for shortfall . . . charges attendant thereto would then be vested in CCI: an empty shell.” 58 Further, “[ w] ithout the revenue generated by the traffic under the plans, CCI would have no income and no means of backing the responsibilities it maintained after the CCI/ PSE transfer of traffic.” 59 AT& T claims that, based upon statements made by Alfonse Inga, the owner of the Inga companies, it had reason to believe that CCI’s proposed transfer was an attempt to avoid liability for shortfall charges under the Tariff. 60 Accordingly, AT& T argues, it had the right under section 2.2.4 to refuse to accept the transfer to PSE. 61 11. Based upon our review of AT& T’s tariff, we conclude that, even assuming that AT& T reasonably suspected a violation of the “fraudulent use” provisions of its tariff – which we do not decide – those provisions did not authorize AT& T to refuse to move the traffic from CCI to PSE. If AT& T had moved the traffic from CCI to PSE, then all of the traffic that CCI had used to meet its CSTP II/ RVPP commitments would be associated with PSE’s CT 516. Further, CCI (as well as the Inga companies 62 ), (... continued from previous page) and Order, 13 FCC Rcd 6551, 6559 para. 13 (CCB 1998). Accordingly, AT& T could not refuse to move them out of CCI’s CSTP II and into PSE CT 516. The fact that CCI sought to move all of its end- user locations, rather than just one or a few locations, did not confer a right on AT& T where none otherwise existed. 53 First District Court Opinion at 15. 54 Petition at 7- 8 (emphasis added); see also n. 44, supra. 55 Opposition at 5 (footnote omitted); see also First District Court Opinion at 10. 56 Opposition at 5. Although AT& T also argues that the move also avoided the payment of tariffed termination charges, id., it separately states that termination liability (payment of charges that apply if a term plan is discontinued before the end of the term) is not at issue here. Opposition at 3 n. 1. That is consistent with the facts of this matter; petitioners never terminated their plans. Accordingly, termination charges are not at issue in this matter. 57 Opposition at 5, 12. 58 First District Court Opinion at 10 (emphasis added); see Opposition at 12. 59 First District Court Opinion at 10; see Opposition at 12. 60 Opposition at 5, 11- 12. 61 Opposition at 5; AT& T Further Comments at 10- 11. 62 See First District Court Opinion at 9. 8 Federal Communications Commission FCC 03- 244 9 but not PSE, would continue to have been responsible for any shortfall obligations under the CSTP II/ RVPP plans. Once all of its traffic was moved to PSE, CCI might have needed to amass new traffic in order to meet its commitments under its CSTP II plans. AT& T’s apparent speculation that CCI would fail to meet these commitments and would be judgment- proof did not justify its refusal to transfer the traffic in question. 12. Even assuming that AT& T did have reason to believe that the proposed movement of traffic from CCI to PSE violated section 2.2.4 of its tariff, AT& T did not avail itself of the associated remedy that was specified in its tariff. Section 2.2.4, which AT& T cites in support of its argument, was titled “Fraudulent Use” and provided that -- The fraudulent use of, or the intended or attempted fraudulent use of, WATS is prohibited. The following activities constitute fraudulent use: A. Using or attempting to use WATS with the intent to avoid the payment, either in whole or in part, of any of the Company’s tariffed charges by: . . . . 2. Using fraudulent means or devices, tricks, [or] schemes .... 63 Section 2.8.2 of the Tariff, titled “Interference, Impairment or Improper Use,” however, specified the remedy that AT& T could employ if it suspected fraudulent use under section 2.2.4. 64 That section provided that – The Company may take immediate action to temporarily suspend service when a Customer violation results in any of the following: . . . . -- circumvents the Company’s ability to charge for its services as specified in Section 2.2.4 (Fraudulent Use) preceding . . . . . . . . In such cases, the Company will make reasonable effort to give the Customer prior notice before suspending service. . . . . When a violation results in the temporary suspension of service … [this] restriction[] will be removed when the Customer is in compliance with the [tariffed] regulations and so advises the Company. 65 63 See Exhibit 7 to Reply; Attachment 4 to AT& T Further Comments (AT& T Tariff FCC No. 2 at § 2.2.4 (Fraudulent Use), 11 th rev. p. 21 (eff. July 28, 1994), 5 th rev. p. 22 (eff. July 28, 1994)); see also Opposition at 5, 9-14; AT& T Further Comments at 10. 64 For purposes of this discussion, we use the term “fraud” to mean the type of conduct described in AT& T’s tariff rather than conduct that would meet a legal definition of fraud. 65 See AT& T Further Comments at Attachment 5 (AT& T Tariff FCC No. 2 at § 2.8.2 (Interference, Impairment or Improper Use), 6 th rev. p. 44 (eff. July 28, 1994)) (emphasis added); see also id. § 2.8.1 (“ General – The Company may take immediate action to protect its services or interests when certain regulations contained in this tariff are (continued....) 9 Federal Communications Commission FCC 03- 244 10 AT& T, however, did not temporarily suspend service to CCI. Instead, it simply refused, in perpetuity, to move the traffic to PSE. 66 If AT& T suspected fraud, as it claims, it should have suspended CCI’s service. 67 It did not do so. AT& T’s refusal to move the traffic was not the tariffed remedy for fraudulent use. 13. Because AT& T did not act in accordance with the “fraudulent use” provisions of its tariff, which did not explicitly restrict the movement of end- user locations from one tariff plan to another, AT& T cannot rely on them as authority for its refusal to move the traffic from CCI to PSE. AT& T does not rely upon any other provisions of its tariff to justify its conduct. 68 Accordingly, we grant Petitioners’ first request for declaratory relief and find that, at the time CCI attempted to move to PSE the traffic that CCI had been using to satisfy its CSTP II commitments, neither Section 2.1.8 of AT& T’s Tariff FCC No. 2, nor any other provision of AT& T’s Tariff FCC No. 2, prohibited it from moving that traffic without the (... continued from previous page) violated. The specific regulations involved and the action( s) which will be taken by this Company are as specified in 2.8.2, 2. 8. 3 and 2.8.4 following.”). We reject AT& T’s argument that these provisions authorized AT& T to “suspend the customer’s right to transfer service.” See Opposition at 11 n. 11 (emphasis added); see also AT& T Further Comments at 11. Pursuant to Rule 61. 2, titled “Clear and explicit explanatory statements,” as in effect in January 1995, “[ i] n order to remove all doubt as to their proper application, all tariff publications must contain clean [sic] and explicit explanatory statements regarding the rates and regulations.” 47 C. F. R. § 61. 2 (1994). It is a well settled rule of tariff interpretation that “‘[ t] ariffs are to be interpreted according to the reasonable construction of their language; neither the intent of the framers nor the practice of the carrier controls, for the user cannot be charged with knowledge of such intent or with the carrier’s canon of construction. ’” Associated Press Request for a Declaratory Ruling, 72 FCC 2d at 764- 65, para. 11 (quoting Commodity News Services, Inc. v. Western Union, 29 FCC at 1213, para. 2). Accordingly, if AT& T intended the term “temporarily suspend service” to mean “permanently suspend the right to move traffic to another Customer” it should have said so. To quote the district court, “Words mean what they say. Rules should not be changed in the middle of the game; and certainly not without notice.” First District Court Opinion at 21. 66 This enabled AT& T to continue collecting revenue on the CSTP II traffic aggregated by CCI and at the higher CSTP II rate, rather than the CT 516 rate. Under the billing arrangement between AT& T and petitioners, AT& T billed the end- user directly, calculating into the bill a secondary discount, which the aggregator allotted to the end-user in question. AT& T then paid the aggregator the difference between the aggregator’s CSTP II/ RVPP discount and the percentage discount allotted to the end- user. The sum remitted by AT& T to the aggregator constituted the aggregator’s income, from which it derived its operating costs and profits. First District Court Opinion at 4; see also Petition at 10. If AT& T had suspended service as its tariff permitted, it would not have collected any revenue at all under these accounts, rather than, as it did, continue to collect under the CSTP II. Although suspension was clearly a less attractive alternative than continuing to collect revenue at the CSTP II rates, suspension was the only remedy available to AT& T under the terms of its tariff for the type of “fraud” AT& T alleges it suspected. 67 As discussed in n. 65, supra, Commission Rule 61. 2 requires that tariff provisions be explicit. Rule 61. 54( j) further required that “[ a] special rule, regulation, exception or condition affecting a particular item or rate must be specifically referred to in connection with such item or rate.” 47 C. F. R. § 61. 54 (1994) (emphasis added). Consistent with these rules, section 2. 8 of AT& T’s tariff specified the precise remedy to be applied upon the occurrence of different enumerated events. For example, section 2.8.2 provided that when a customer failed to comply with sections 2.2 (Use), 2.7.2. C (Interference and Hazard), 2.7.8.A (Answer Supervision), 2.7.8. D (Customer- provided Communications System Failures), or 2.7.9 (Minimum Protection Criteria), the remedy was to deny requests for additional service and/ or temporarily suspend service “on ten days’ written notice by certified U. S. Mail to the Customer.” See AT& T Further Comments at Attachment 5 (AT& T Tariff FCC No. 2 at § 2.8.2, 6 th rev. p. 44 (eff. July 28, 1994)). Section 2.8.3 provided for disconnection of service and/ or denial of requests for additional WATS in the event of a violation of section 2.5.3, governing nonpayment of charges. See Attachment 5 to AT& T Further Comments (AT& T Tariff FCC No. 2, 4 th rev. p. 44. 1 at § 2.8.3 (eff. Aug. 11, 1994)). Section 2. 8. 4 permitted AT& T, “immediately and upon written notice to the Customer,” to “restrict, suspend or discontinue providing … service” for violations of section 2.2.3. C or D. Id. 68 See Opposition at 10- 14; AT& T Further Comments at 3- 5, 10- 11. 10 Federal Communications Commission FCC 03- 244 11 CSTP II plans. 69 B. Whether a Tariff Revision May Have Retroactive Effect 14. In their second request for declaratory relief, petitioners ask the Commission to find that “[ u] nder standard tariffing law, principles, policies, and as required by the plain language of Section 203 of the Act, AT& T had no legal basis and could not have effectively tariffed any changes or additions to Section 2.1.8 or any other published provision of its Tariff F. C. C. No. 2, subsequent to January 1995, which could have substantively affected CCI’s right to assign the traffic under its CSTP II plans to PSE in January, 1995.” 70 AT& T does not address the retroactive application of tariff revisions. 71 We also do not understand AT& T to argue that any revisions to its tariff that became effective after January 1995 govern the resolution of this matter. We decline to rule on this request because the issue is moot. 15. The Commission has broad discretion under the Administrative Procedure Act and Commission rules to decide whether a declaratory ruling is necessary to “terminate a controversy or remove uncertainty.” 72 When, as here, a petition for declaratory ruling derives from a primary jurisdiction referral, the Commission will seek, in exercising its discretion, to resolve issues arising under the Act that are necessary to assist the referring court. Resolution of this issue is not necessary to assist the district court. After AT& T refused to permit petitioners to move the traffic, it filed Transmittal 8179 with the Commission in February 1995, which sought to amend Tariff No. 2. The district court’s May 1995 primary jurisdiction referral to the Commission was based, in part, upon AT& T’s contention that the Commission’s consideration of Transmittal No. 8179 would clarify whether CCI was entitled, under the tariff, to move the traffic without the plans to PSE. 73 According to the record, however, AT& T ultimately withdrew Transmittal 8179 on June 2, 1995. 74 Thus, Transmittal 8179 never became effective. 75 Since AT& T did not amend its tariff, our analysis of petitioners’ retroactivity question would not assist the court in resolving this matter. Nor does either party explain how consideration of this question would resolve a controversy or remove any uncertainty. The issue is moot and, in our discretion, we decline to address it. 69 See Petition at 7- 8. 70 Petition at 8. 71 See generally Opposition; AT& T Further Comments. 72 5 U. S. C. § 554( e); 47 C. F. R. § 1. 2; see also 47 U. S. C. §§ 154( i), (j); Yale Broadcasting Co. v. FCC, 478 F. 2d 594, 602 (D. C. Cir.), cert denied, 414 U. S. 914 (1973). 73 See First District Court Opinion at 12, 16- 17; Second District Court Opinion at 3- 4, 13; see also Petition at 14- 16 & n. 7 (quoting AT& T’s Brief filed in 1995 with the district court (“ Transmittal 8179 … make[ s] explicit AT& T’s implicit rights under the tariff. Accordingly, the proceeding in the FCC will resolve that issue ….”). The district court found that Mical Communications, Inc. v. Sprint Telemedia, Inc., 1 F. 3d 1031 (10 th Cir. 1993), was persuasive authority on one of the factors relevant to the primary jurisdiction referral: whether a decision by the court prior to an Commission response to a petition pending before that agency might result in conflicting decisions. See First District Court Opinion at 14 n. 10; see also Petition at 14- 15 n. 7 (quoting AT& T’s Brief filed in 1995 with the district court). A tariff transmittal, however, is a different kind of administrative filing than the petition for declaratory ruling, see Mical, 1 F. 3d at 1037, that was at issue in the Mical case. As we discuss in Section III. C, below, a tariff transmittal is a carrier- initiated document which, if not withdrawn or deferred by the carrier, or suspended or rejected by the Commission, becomes effective, i. e., modifies the tariff, within a certain number of days from the transmittal filing date. See 47 U. S. C. § 203( a), (b); 47 C. F. R. § 61. 58( a), (b). Until the transmittal becomes “effective” it is not part of the tariff. In the interim, the carrier has the power to defer the effective date of a particular transmittal, file an amended version of it, or, as AT& T did in this matter, withdraw it. 74 Second District Court Opinion at 4. 75 See Second District Court Opinion at 4. 11 Federal Communications Commission FCC 03- 244 12 C. Whether AT& T was Authorized to Refuse to Permit the Movement of Traffic From One Reseller to Another 16. Petitioners’ third request for declaratory relief asks the Commission to find that “[ s] ince neither Section 2.1. 8 of AT& T’s FCC Tariff No. 2, nor any other provision of AT& T’s duly published tariff prohibited CCI from transferring that traffic without also transferring the CSTP II plans with which that traffic was associated …, AT& T had no legal basis to refuse to accept the transfer … of that traffic from CCI to PSE.” 76 We agree with petitioners that, because AT& T’s tariff did not prohibit the movement of traffic without the plans, AT& T’s refusal to move the traffic was unauthorized. 17. In 1995, AT& T, as well as all common carriers of interstate and foreign telecommunications, was required, under section 203 of the Act, to file with the Commission one or more “schedules” of its charges and the classifications, practices, and regulations affecting such charges. 77 With respect to the services at issue in the instant proceeding, this “schedule” was AT& T’s Tariff FCC No. 2. Once filed, a tariff is a public document. 78 It defines the terms and conditions upon which a carrier offers and provides services to its customers. 79 Tariffed charges, classifications, regulations or practices may be changed only after notice is given to the Commission and the public. 80 The Commission regulates the substance of tariff provisions and is authorized to suspend or reject the effectiveness of a proposed tariff provision when it believes such provision will violate the Act. 81 When, as here, service is provided pursuant to a filed tariff, the tariff controls the rights and responsibilities of the customer and the carrier, as a matter of law. 82 Thus, the “filed tariff doctrine” requires carriers, as well as their customers, to abide by the terms of the tariff and precludes carriers from acting outside it. 83 As we have discussed above, AT& T’s tariff did not prohibit the movement of traffic without CSTP II plans. Assuming that AT& T reasonably suspected “fraudulent use” under section 2.2.4, the remedy under its tariff for the type of fraud it claims it suspected was suspension of service, not refusal to move the traffic. Accordingly, when AT& T availed itself of a remedy not “specified” in its tariff, that action was unauthorized. We grant petitioners’ request for declaratory relief that AT& T had no legal basis to refuse to move the traffic from CCI to PSE. D. Whether AT& T Violated Sections 201, 202, 203 of the Act and Rule 61.54 18. In their fourth and final request for declaratory relief, petitioners ask the Commission to find that “AT& T’s refusal to accept such transfer of traffic . . . was, therefore, in violation of AT& T’s tariff, its obligations under Section 201, 202 and 203 of the Act and Rule 61.54 of the Commission’s rules.” 84 In its Opposition, AT& T argues that “disputed material issues of fact concerning Petitioners’ 76 Petition at 8; see also supra n. 44. 77 47 U. S. C. § 203. 78 47 U. S. C. § 203( a). 79 See, e. g., Brown v. MCI WorldCom Network Services, Inc., 277 F. 3d 1166, 1170 (9 th Cir. 2002); AT& T v. City of New York, 83 F. 3d 549, 552 (2 nd Cir. 1996)( citing 47 U. S. C. § 203( a)). 80 47 U. S. C. § 203( b)( 1). 81 47 U. S. C. § 204. 82 Lowden v. Simonds- Shields- Lonsdale Grain Co., 306 U. S. 516, 520 (1939) (cited in Brown, 277 F. 3d at 1170; ICOM Holding Inc. v. MCI WorldCom, 238 F. 3d 219, 221 (2 nd Cir. 2001)). 83 See AT& T v. Central Office Telephone, 524 U. S. 214, 222- 23 (1998); MCI WorldCom v. FCC, 209 F. 3d 760, 762 (D. C. Cir. 2000). The “filed tariff doctrine” has been applied frequently to preclude customers from enforcing alleged carrier promises that are not specified in the tariff. See, e. g., Central Office Telephone, 524 U. S. 214; ICOM, 238 F. 3d at 221- 23; Marco Supply Co. v. AT& T Communications, Inc., 875 F. 2d 434, 436 (4th Cir. 1989). 84 Petition at 8. 12 Federal Communications Commission FCC 03- 244 13 intent to defraud AT& T are at the heart of all four legal issues which CCI is asking the Commission to resolve, and thus preclude a declaratory ruling.” 85 Thus, it reasons, if petitioners wish to proceed before the Commission, they are required to do so through a formal complaint with a complete evidentiary record. 86 We agree that declaratory relief is inappropriate for some of the issues raised by petitioners. 87 We disagree, however, with AT& T’s contention that all of the issues upon which petitioners seek declaratory relief – or the court’s primary jurisdiction referral 88 – involve disputed material issues of fact. 89 The language of the tariff is undisputed. It is undisputed that petitioners requested that A& T move end- user traffic from CCI to PSE and it is undisputed that AT& T did not effect that move. These undisputed facts form the basis for our grants of declaratory relief. 19. Within this framework, we consider petitioners’ remaining requests for relief. We go no further than petitioners’ claim under section 203, because we find it dispositive. Petitioners argue that, under the circumstances of this case, AT& T’s refusal to move the end- user traffic from CCI to PSE violated section 203 of the Act. 90 Subsection 203( c) forbids a carrier from employing or enforcing any classifications, regulations, or practices affecting its charges unless they are “specified” in the tariff and makes it unlawful for a carrier to deviate, in the rendition of tariffed services, from the charges, regulations, and practices set out in its filed tariff. 91 We agree that, when AT& T availed itself of a remedy not “specified” under its tariff, it violated section 203 of the Act. 92 As discussed in Section C above, pursuant to section 203, a carrier’s tariff controls the rights and obligations of the carrier, which, as 85 Opposition at 14; see also AT& T Further Reply at 7. 86 See Opposition at 14, 19. 87 For example, petitioners claim that AT& T engaged in unlawful discrimination in violation of section 202 because its consistent practice was to permit aggregators to transfer locations without plans. See Petition at 23, 25. Petitioners also argue that AT& T engaged in an unreasonable practice in violation of section 201 because, when it refused to effect the transfer of locations, it enforced an unwritten rule. See Petition at 22- 23. Petitioners filed voluminous documents with the Commission, many of which also were filed with the district court, which petitioners claim support their theory of the case. AT& T has not attempted to rebut these individual claims, asserting, instead, that the facts regarding these claims are disputed and arguing that declaratory relief is not appropriate when all relevant facts are not clearly developed before the Commission and essentially undisputed. See Cascade Utilities, Inc., American Telephone and Telegraph Company Petition for Declaratory Ruling, Memorandum Opinion and Order, 8 FCC Rcd 781, 782 para. 11 (CCB 1993) (cited in Opposition at 10 (additional citations omitted)). As noted above, we agree that declaratory relief is inappropriate when the facts are disputed. Accordingly, we deny all requests not specifically granted. In accordance with the discretion allowed us in a declaratory proceeding, moreover, we see no need to attempt to resolve the disputed issues through a formal complaint proceeding before the Commission, as AT& T proposes. Given our conclusion that AT& T violated section 203 of the Act, it is unclear what additional fact- finding on these issues is necessary. Assuming that further inquiry is appropriate, efficiency favors their resolution in the district court where the evidentiary record already has been developed. That is consistent with petitioners’ original choice of forum for this dispute, with petitioner’s objective in this proceeding, see Reply at i (“ Any factual issues which need to be addressed in order to apply the tariff, after the tariff is interpreted by the Commission, can be addressed by the District Court, which has already compiled an extensive factual record in this case”), 14, and with the court’s primary jurisdiction referral. The district court proceeding is still pending and the parties have presented evidence in that forum, inter alia, in the course of a two- day hearing. 88 See Opposition at 9. 89 See Opposition at 14. 90 Petition at 22- 23, 25- 26. Specifically, petitioners argue that AT& T failed to follow its tariff, that it applied and enforced non- tariffed regulations and conditions, and that it failed to tariff the regulations and conditions that it followed. Petitioners argue that this conduct also violates Rule 61. 54( j). 91 47 U. S. C. § 203( c); see Central Office Telephone, 524 U. S. 214. 92 47 U. S. C. § 203( c). 13 Federal Communications Commission FCC 03- 244 14 a matter of law, is required to abide by the tariffed terms and is precluded from acting outside it. 93 AT& T’s tariff did not prohibit the movement of traffic without plans. Thus, when AT& T availed itself of a remedy not “specified” in its tariff, that action violated subsection 203( c). Accordingly, we grant petitioner’s request for declaratory ruling that AT& T violated section 203. 20. We do not reach petitioners’ remaining claims under sections 201, 202, and Commission Rule 61.54( j) in light of our conclusion that AT& T violated section 203 of the Act. 94 As discussed above, the Commission has broad discretion under the Administrative Procedure Act and Commission rules to decide whether a declaratory ruling is necessary to “terminate a controversy or remove uncertainty.” 95 In this case, petitioners’ requests for declaratory relief arose out of a primary jurisdiction referral, which asked the Commission to interpret a provision of AT& T’s tariff. Our interpretation of the tariff coupled with the undisputed facts lead us to conclude that AT& T engaged in conduct unauthorized by its tariff and, accordingly, violated subsection 203( c) of the Act. IV. CONCLUSION 21. In sum, we conclude that AT& T’s tariff did not preclude the movement of end- user traffic from CCI to PSE without the accompanying CSTP II plans. We also conclude that AT& T did not avail itself of the remedy specified in its tariff for suspected fraud and thus cannot rely upon the fraud sections of its tariff to justify its refusal to move the traffic. Accordingly, we conclude that AT& T’s action in refusing to move the traffic was unlawful and violated subsection 203( c) of the Communications Act. 93 See nn. 77- 83, supra, and accompanying text. 94 See also n. 87, supra. We also decline to address issues concerning AT& T’s shortfall charges in this declaratory proceeding. In the Joint Motion for Expedited Consideration, which was filed on July 15, 1996, petitioners argued that AT& T unlawfully billed shortfall charges to CCI’s end users in June of 1996. Joint Motion for Expedited Consideration of the Joint Petition for Declaratory Ruling on the Assignment of Accounts (Traffic) Without the Associated CSTP II Plans Under AT& T Tariff F. C. C. No. 2, Internal File No. CCB/ CPD 96- 20, Public Notice, 11 FCC Rcd 8738 (1996); see also Joint Motion for Expedited Consideration at 2 (citations omitted). After receiving AT& T’s bills for shortfall charges, 190 of CCI’s end users sent letters to the Commission in June and early July of 1996. The Consumer Protection Branch of the Enforcement Division of the Common Carrier Bureau informed these end users that their letters would be treated as informal comments in this declaratory ruling proceeding. After the original billing, however, in a letter dated June 27, 1996, AT& T informed CCI’s end- users that the shortfall charges would be “transferred to a bill directed to CCI itself.” AT& T filed a copy of this letter with the Commission in a section 208 formal complaint proceeding that it filed against petitioner Winback & Conserve in October 1996. See Complaint, Exhibit A, Attachment E, AT& T Corp. v. Winback and Conserve Program, Inc., E- 97- 02 (filed Oct. 25, 1996). Accordingly, we surmise that AT& T made no further attempt to bill or collect these charges from CCI’s end-users and therefore conclude that the propriety of imposing shortfall charges on CCI’s end- users is a moot issue. See id.; see also AT& T Corp. v. Winback and Conserve Program, Inc., 16 FCC Rcd at 16076- 77, para. 8. With respect to petitioners’ argument that AT& T’s CSTP II shortfall charges set forth in Tariff No. 2 are facially unreasonable, we find this issue – which was not referred to us by the district court – to be irrelevant to our conclusion that AT& T violated its tariff. See Section B, supra; see also n. 50, supra. Finally, we refuse the parties’ request that we declare whether “pre- June 17, 1994 CSTP II plans, as are involved here, may never have shortfall charges imposed, as long as the plans are restructured prior to each one- year anniversary.” See Joint Motion for Expedited Consideration at 2; Opposition at 14- 15; Reply at 25. Declaratory relief on this issue – which also was not referred to us by the district court – is inappropriate because whether CCI’s plans were pre- or post- June 17, 1994 plans is a disputed fact. Compare id. with Opposition at 14 n. 13. 95 5 U. S. C. § 554( e); 47 C. F. R. § 1. 2; see also 47 U. S. C. §§ 154( i), (j). 14 Federal Communications Commission FCC 03- 244 15 V. ORDERING CLAUSES 22. Accordingly, IT IS ORDERED, pursuant to sections 4( i), 4( j), 201, 202, and 203 of the Communications Act of 1934, as amended, 47 U. S. C. §§ 154( i), (j), 201, 202, 203, and section 1.2 of the Commission’s rules, 47 C. F. R. § 1.2, that the Joint Petition for Declaratory Ruling of Combined Companies, Inc. and Winback & Conserve Program, Inc., One Stop Financial, Inc., Group Discounts, Inc., 800 Discounts, Inc. IS GRANTED to the extent set forth herein, and is otherwise DENIED. 23. IT IS FURTHER ORDERED, pursuant to sections 4( i), 4( j), 201, and 202 of the Communications Act of 1934, as amended, 47 U. S. C. §§ 154( i), (j), 201, 202, and section 1.2 of the Commission’s rules, 47 C. F. R. § 1.2, that the Joint Motion for Expedited Consideration of the Joint Petition for Declaratory Ruling IS DISMISSED as moot. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary 15