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Sprint Communications Co., L.P. v. Fairpoint Communications, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

July 7, 2017

SPRINT COMMUNICATIONS COMPANY, L.P., Plaintiff,
v.
FAIRPOINT COMMUNICATIONS, INC., Defendant.

          ORDER

          GRAHAM C. MULLEN UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court upon the Defendants' Motion to Dismiss (Doc. No. 10). The Plaintiff has filed a response in opposition and the Defendants have filed a reply. This matter is now ripe for disposition.

         I. FACTUAL BACKGROUND

         Sprint is a telephone company that contracts with telephone providers-like FairPoint and Oxford-for transport to carry its customers' calls into and out of the State of Maine. Complaint ¶ 6 (“Compl.”). The relationship between Sprint and FairPoint is governed by a tariff (the “Tariff”) filed with the Federal Communications Commission (“FCC”). Compl. ¶ 4. The Tariff includes a switched and special access service called Facilities Management Service (“FMS”). Under FMS FairPoint's wholly-owned subsidiary, Northern New England Telephone Operations LLC (“NNETO”), facilitates the transport of telecommunications traffic between two locations-a Sprint-designated “primary premises” and a Sprint-designated “secondary location.”[1] Compl. ¶ 5. A primary premises is a location where a telephone channel/circuit is either originated or terminated. A secondary location is the serving wire center from where FMS mileage is determined. Id. FairPoint is responsible for transporting traffic between these two locations, and may charge Sprint for the mileage between these two locations. Compl. ¶ 22.

         Sprint's traffic is carried by Sprint over its network to Sprint's “point of presence, ” or “POP” in Portland, Maine. From there, Oxford provides for the transport of Sprint's traffic from Portland to an end office in Bangor, Maine, and then to Sprint's designated primary premises, which Sprint says is located at the “Oxford hub.” However, the main point of contention in this case is that FairPoint argues that the actual designated primary premises location is the Bangor office. Doc. No. 13 at 5. FairPoint provides transport for the phone call from the Oxford hub to the end user receiving the phone call. Compl. ¶ 16.

         Outgoing traffic is handed off in reverse. Compl. ¶ 17. Also, for some of the circuits at issue in the Complaint, the primary premises and secondary location are at the same end office, i.e., they are both located at the Oxford hub. Compl. ¶ 16.

         Pursuant to a contract between Oxford and Sprint, Oxford bills Sprint for its transport services between an end office in Bangor, Maine and Sprint's primary premises. Compl. ¶ 18. Sprint alleges that FairPoint has also been billing Sprint for transport services between Bangor and the primary premises, even though FairPoint has not been providing these transport services despite the fact that the Tariff only permits FairPoint to charge Sprint for transport services between the primary premises and secondary location. FairPoint has refused to amend its billing practices and has rejected Sprint's submitted claims as to the disputed amounts. Compl. ¶ 32.

         II. LEGAL STANDARD

         Under Federal Rule of Civil Procedure 12(b)(6), a case may be dismissed for failure to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the court must determine whether the complaint “provide[s] enough facts to state a claim that is plausible on its face.” Sarvis v. Alcorn, 826 F.3d 708, 718 (4th Cir. 2016) (quoting Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009)). In order to reach facial plausibility, the plaintiff must “plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         III. DISCUSSION

         a. Tariff Requirements

         The Complaint alleges that FairPoint is charging Sprint for the transport of telecommunications traffic-transport that it does not provide-from locations other than what is permitted by the Tariff. Compl. ¶¶ 6-7. The Tariff provides that FairPoint can only charge for transport from a customer's designated “primary premises” to the “secondary location.” Compl. ¶¶ 21-24. The Complaint alleges that for certain circuits, Sprint has designated the Oxford hub as its primary premises and that these designated locations meet the requirements of FairPoint's Tariff. Compl. ¶¶ 16, 23, 25. However, Sprint alleges that rather than calculate transport mileage charges from these primary premises, FairPoint has been calculating transport charges based on FairPoint's “end office” in Bangor, Maine. Compl. ¶ 24. Sprint alleges that this violates the Tariff and therefore constitutes an unjust and unreasonable practice in violation of 47 U.S.C. § 201(b). See, e.g., Qwest Comm. Corp., Complainant, Second Order on Reconsideration, 24 F.C.C. Rcd. 14801, 14813 (2009) (billing practice that did not comport with tariff requirements found to be unjust and unreasonable in violation of Section 201(b)).

         FairPoint argues the Court should dismiss all claims because Sprint failed to plead sufficient facts to state the claim that the defendant violated the Tariff because (1) the Oxford hub cannot be the designated primary premises under the Tariff requirements and (2) Sprint never designated the Oxford hub as its primary premises on its Access Service Requests.

         The Court will not say at this stage that as a matter of law the Tariff prohibits Sprint from designating the Oxford hub as the primary premises. FairPoint argues that under the Tariff “the primary premises must consist of Sprint facilities.” Doc. No. 10-1 at 10. However, FairPoint does not cite for the Court any clear language from the Tariff that supports the proposition that Sprint must own the designated primary premises. (“When a tariff is clear and unambiguous on its face, no construction by the court is necessary, and the parties are bound by its terms.” D.S. Swain Gas Co. v. Dixie Pipeline Co., No. 89-1796, 1990 U.S. App. LEXIS 27031, at *6 (4th Cir. July 19, 1990) (citation omitted)).

         The Complaint alleges that the Oxford hub, i.e., Sprint's primary premises, qualifies as a Type 1 premise, which can have either an “entrance facility” or “multiplexing node.” To be a primary premises, the location requires a network interface, defined as “the interface point at a customer's designated primary premises where the connection is made between the FMS network and the customer's network.” Id. Sprint's Complaint sufficiently alleges facts to plausibly state that FairPoint violated the Tariff requirements and that the Oxford hub could be designated as Sprint's primary premises.

         “The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint;” the motion “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Butler v. United States,702 F.3d 749, 752 (4th Cir. 2012) (internal quotation marks omitted). When deciding a Rule 12(b)(6) motion, the Court must accept all factual allegations in the complaint as true. Tellabs, Inc. v. Makor Issues & Rights, Ltd, 551 U.S. 308, 322 (2007). Sprint alleges in its Complaint that the Oxford hubs meet the primary premises requirements. Compl. ΒΆ 23. FairPoint argues that this is not the case. To rule in favor of FairPoint's argument would require the Court to not accept an allegation contained ...


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