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In re IntraMTA Switched Access Charges Litigation

United States District Court, N.D. Texas, Dallas Division

May 15, 2018

IN RE INTRAMTA SWITCHED ACCESS CHARGES LITIGATION THIS DOCUMENT RELATES TO Civil Action Nos. 3:14-CV-1724-D, 3:14-CV-3210-D, 3:14-CV-4418-D, 3:14-CV-4420-D, 3:14-CV-4422-D, 3:14-CV-4423-D, 3:14-CV-4424-D, 3:14-CV-4425-D, 3:14-CV-4426-D, 3:14-CV-4427-D, 3:14-CV-4428-D, 3:14-CV-4429-D, 3:14-CV-4430-D, 3:14-CV-4433-D, 3:14-CV-4445-D, 3:14-CV-4446-D, 3:14-CV-4447-D, 3:14-CV-4460-D, 3:14-CV-4469-D, 3:14-CV-4470-D, 3:14-CV-4472-D, 3:14-CV-4473-D, 3:14-CV-4474-D, 3:14-CV-4546-D, 3:14-CV-4547-D, 3:14-CV-4561-D, 3:14-CV-4564-D, 3:14-CV-4573-D, 3:14-CV-4574-D, 3:14-CV-4577-D, 3:14-CV-4579-D, 3:14-CV-4580-D, 3:14-CV-4581-D, 3:15-CV-0019-D, 3:15-CV-0020-D, 3:15-CV-0021-D, 3:15-CV-0023-D, 3:15-CV-0033-D, 3:15-CV-0034-D, 3:15-CV-0035-D, 3:15-CV-0036-D, 3:15-CV-0040-D, 3:15-CV-0044-D, 3:15-CV-0045-D, 3:15-CV-0066-D, 3:15-CV-0078-D, 3:15-CV-0114-D, 3:15-CV-0115-D, 3:15-CV-0116-D, 3:15-CV-0137-D, 3:15-CV-0142-D, 3:15-CV-0198-D, 3:15-CV-0228-D, 3:15-CV-0260-D, 3:15-CV-0563-D, 3:15-CV-0705-D, 3:15-CV-0931-D, 3:15-CV-1040-D, 3:15-CV-1041-D, 3:15-CV-1052-D, 3:15-CV-1053-D, 3:15-CV-1069-D, 3:15-CV-1070-D, 3:15-CV-1071-D, 3:15-CV-1102-D, 3:15-CV-1177-D, 3:16-CV-0361-D, 3:16-CV-0974-D, 3:16-CV-0975-D, 3:16-CV-0977-D, 3:16-CV-0979-D, 3:16-CV-0989-D, 3:16-CV-0990-D, 3:16-CV-1010-D, 3:16-CV-1105-D, 3:16-CV-1119-D, 3:16-CV-1122-D, 3:16-CV-1126-D, 3:16-CV-1443-D, 3:16-CV-1626-D, 3:16-CV-1893-D, 3:16-CV-1985-D, 3:16-CV-2210-D, 3:16-CV-2923-D, 4:16-CV-0302-D

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER, UNITED STATES DISTRICT JUDGE

         In these MDL proceedings, the court decides three pending motions for summary judgment under an abbreviated summary judgment procedure that is appropriate under the circumstances to facilitate an appeal of the court's case-dispositive decision in In re IntraMTA Switched Access Charges Litigation, 2015 WL 7252948 (N.D. Tex. Nov. 17, 2015) (Fitzwater, J.) (“IntraMTA I”). Concluding that the movants have established beyond peradventure that they are entitled to summary judgment, the court grants their motions and orders that the parties submit proposed final judgments under the procedure previously prescribed by court order.

         I

         Because these MDL cases are the subject of several prior memorandum opinions and orders, see, e.g., In re IntraMTA Switched Access Charges Litigation, 2017 WL 1078522 (N.D. Tex. Mar. 22, 2017) (Fitzwater, J.) (“IntraMTA II”); IntraMTA I, 2015 WL 7252948, the court will recount only the background facts and procedural history that are pertinent to this decision.

         These MDL proceedings principally present the question whether local exchange carriers (“LECs”) can charge interexchange carriers (“IXCs”) access fees for the services that the LECs provide the IXCs to enable them to exchange interstate wireless intraMTA calls-that is, interstate wireless calls that originate and terminate within the same Major Trading Area (“MTA”). In IntraMTA I the court dismissed the IXCs's claims against the LECs, holding that the LECs's filed federal tariffs were not contrary to law, and, accordingly, were enforceable under the “filed rate doctrine.” IntraMTA I, 2015 WL 7252948, at *4, 14. The court “h[eld] that [the LECs] are entitled to rely on the filed rate doctrine because it is lawful under federal law to charge IXCs access fees for access services that the LECs provide to enable the IXCs to exchange interstate wireless intraMTA calls.” Id. at *14.

         After the court dismissed the IXCs's claims in IntraMTA I, [1] it granted leave to the defendants-counterplaintiffs LECs to file counterclaims against the IXCs for breach of the LECs's federal and state tariffs. In tag-along cases filed by the LECs against Level 3[2] in its capacity as an IXC, the LECs's claims against Level 3 remain pending after the court denied Level 3's motion to dismiss in IntraMTA II. No. final judgments have been entered with respect to the IXCs's claims against the LECs, the LECs's counterclaims against the IXCs, or the LECs's claims against Level 3.

         In order to place these cases in a procedural posture that will permit appellate review of the court's decision in IntraMTA I, the LECs and IXCs have undertaken steps to resolve the remaining claims and counterclaims through stipulated facts and agreed forms of final judgments. But they have been unable to agree on the question whether the services at issue in this litigation that the LECs provide the IXCs can properly be described as “access services.” Accordingly, the LECs have filed the following abbreviated motions for summary judgment: the LECs's joint motion for summary judgment[3]; the LECs's joint motion for summary judgment against Level 3; and certain Minnesota small LECs's joint motion for summary judgment filed in member No. 3:16-CV-2210-D. The arguments presented in each of these motions and the responses thereto are essentially the same, and, accordingly, the court will address them together.

         II

         Because the LECs will have the burden of proof at trial on their claims or counterclaims, to be entitled to summary judgment, they “must establish ‘beyond peradventure all of the essential elements of the claim[s or counterclaims.]'” Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F.Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). “This means that [the LECs] must demonstrate that there are no genuine and material fact disputes and that [they are] entitled to summary judgment as a matter of law.” GoForIt Entm't, LLC v. DigiMedia.com L.P., 750 F.Supp.2d 712, 722 (N.D. Tex. Oct. 25, 2010) (Fitzwater, C.J .) (citing Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir. 2003)). “‘The court has noted that the ‘beyond peradventure' standard is ‘heavy.'” Carolina Cas. Ins. Co. v. Sowell, 603 F.Supp.2d 914, 923 (N.D. Tex. 2009) (Fitzwater, C.J.) (quoting Cont'l Cas. Co. v. St. Paul Fire & Marine Ins. Co., 2007 WL 2403656, at *10 (N.D. Tex. Aug. 23, 2007) (Fitzwater, J.)).

         III

         A

         All LECs move for summary judgment based on the following “factual predicates”:

The LECs have filed enforceable Tariffs for switched access services. The Tariffs require the LECs to collect access charges for the switched access services they provide to IXCs. The IXCs used these LECs' access services to exchange the Subject Calls with the LECs. The terms of the LECs' Tariffs require the LECs to collect the tariffed rates for access charges for the Subject Calls. The IXCs therefore owed these access charges.

         LECs's Br. at 3 (citations omitted); see also LECs's Level 3 Br. at 3; Minn. Small LECs's Br. at 4. They contend, further, that their tariffs also require the LECs to collect fees or charges if the IXCs's payments for access charges are not made by the deadlines set in the tariffs (“Late Payment Charges”); that the IXCs did not pay the LECs's tariffed access charges by the required deadlines; and that the IXCs therefore owe the Late Payment Charges as set forth in the tariffs, in the amounts set forth in the tariffs. LECS's Br. at 3-4 (citations ...


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