United States District Court, W.D. North Carolina, Charlotte Division
C. MULLEN UNITED STATES DISTRICT JUDGE.
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.
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.” 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. ¶
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.
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.
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.
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)).
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
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.
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)).
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.
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. ¶ 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