5/1/2023 0 Comments Hypercube telecom llc nyExcel argues that Hypercube's breach of tariff claim must fail because Hypercube has no tariff. Excel, in its motion for partial judgment on the pleadings, argues that the court should enter judgment in favor of the defendant on the breach of tariff claim and the declaratory judgment claim. Hypercube has asserted claims for breach of Hypercube's federal tariff, quantum meruit, and also seeks a declaratory judgment that it is lawfully charging Excel for its services and that Excel must pay for any services Hypercube has provided. Excel claims it is "powerless to block traffic from Hypercube because Hypercube routes the calls through the, thus intermingling Hypercube calls with other legitimate traffic." Id. Hypercube, however, continues to receive calls from wireless carriers and then direct those calls to Excel, charging Excel for this service. Excel then informed Hypercube that it no longer required its services. Excel asserts that it inadvertently paid a number of Hypercube's invoices "before realizing what Hypercube was up to." Id. The defendants also argue that Hypercube has inserted itself into the call-chain unnecessarily and provides no additional service to anyone. Excel argues that this practice is an end-around of the FCC's prohibition against wireless carriers receiving fees from IXCs like Excel. Hypercube shares its fees from Excel with the wireless company, however, to induce the wireless company to continue sending Hypercube calls. Hypercube is not a wireless carrier and therefore charges Excel for its services. According to the defendants, Hypercube asks wireless companies to send it calls, and Hypercube then sends those calls to a second LEC, which then transfers the call to Excel. Plaintiffs' Response Brief in Opposition to Defendant's Motion for Judgment on the Pleadings ("Response") at 3 Motion at 4. The plaintiffs, Hypercube LLC and Hypercube Telecom, LLC (collectively, "Hypercube" or "the plaintiffs"), claim to be LECs. The IXC still pays a fee to the LEC, but not to the wireless carrier. Usually, however, a wireless carrier transfers calls to an LEC, who then delivers the calls to the IXC. Thus, an IXC like Excel pays no fee to a wireless carrier. In fact, the Federal Communications Commission ("FCC") "prohibits wireless carriers from imposing access charges on IXCs, even though they originate calls much like LECs, based on a policy decision that recognizes that wireless carriers are subject to very little regulation and have other offsetting advantages." Motion at 3 (citing In re Sprint PCS, 17 F.C.C.Rcd. Wireless carriers, however, are specifically excluded from the definition of LECs. IXCs like Excel pay a large fee to the small, local LEC, and a small fee to the larger LEC. The same process takes place in reverse on the terminating end of the call. On the originating end of the call, there is usually a small, local LEC, which transfers calls to a larger LEC, which then transfers the call to an IXC like Excel. Typically, there are four LECs involved in one long-distance call. On the terminating end of the call, Excel pays a fee to a different LEC to connect the call to the call recipient. In other words, Excel pays a fee to an LEC that connects a call from the caller's local network into Excel's more extensive long-distance network. Rather, Excel pays local telephone companies, known as local exchange carriers or LECs, to connect customers into Excel's network. More specifically, Excel is an interexchange carrier ("IXC"), which means that Excel does not provide local telephone service. Excel's Motion for Partial Judgment on the Pleadings and Brief in Support ("Motion") at 2. BACKGROUNDĮxcel is a long distance telephone company. For the reasons discussed below, the motion is granted in part and denied in part. Before the court is the motion of the defendant, Comtel Telecom Assets LP d/b/a Excel Telecommunications ("Excel" or "the defendant"), for partial judgment on the pleadings.
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