Position of the Parties

Blue Casa denies any responsibility for the unpaid information services' charges of its end-users. It asserts that its relationship with AT&T California was that of an autonomous co-carrier, as it believes is evident from an objective interpretation and comprehensive reading of the ICA and LWCA. Consequently, Blue Casa insists that it should not be held liable for the ISP charges that AT&T California paid because Complainant failed to place 900/976 call blocking on lines serving the end-users who made chargeable calls to the ISPs. Moreover, Blue Casa contends that AT&T California's payments to the ISPs violated its own tariff, which required AT&T California to block 900/976 calls and withhold payments to ISPs when, as here, it had no billing arrangement for such calls. Blue Casa argues that AT&T California's position is the equivalent of "a special indemnification arrangement," which would be unenforceable on public policy grounds, because it would absolve AT&T California of responsibility for its tariff violation.³

AT&T California maintains that both agreements obligate Blue Casa to pay for all 900/976 calls incurred by its end-users. Defendant notes that the parties' ICA expressly provides that if Blue Casa "does not wish to be responsible for payment of charges for . . . information services (for example, 900) calls, it must order the appropriate blocking for lines provided under the agreement."⁴ Similarly, AT&T California submits that the parties' LWC agreement states that Blue Casa "is solely responsible for 900/976 . . . calls originating from [Blue Casa customer lines] and attributable to LWC Numbers, and associated charges," and that AT&T California will, upon request, provide Blue Casa "the functionality of blocking . . . 900/976 calls on a per-LWCAL basis."⁵ AT&T California further asserts that Blue Casa had all the information necessary to block call capability on all of its customers' lines; yet, failed to do so.

AT&T California contends that Blue Casa understood that it had a contractual obligation to block 900/976 calls and knew how to order the appropriate blocking. Despite this knowledge, Blue Casa failed to make sure that blocks were placed on the lines of any of its customers making 900/976 calls: even after receiving 19 months worth of bills showing that its customers were making such calls and after being told that one customer was making over $10,000 worth of 900/976 calls month after month. Moreover, Blue Casa declined to dispute most of the 900/976 charges at issue until over a year and half after the challenged charges for 900/976 first appeared on Blue Casa's bills. AT&T California insists that in accordance with the governing agreements, Blue Casa should be held responsible for the 900/976 charges Blue Casa's customers incurred, and which AT&T California has already paid to and cannot recover from the ISPs that billed the charges.

³ Blue Casa Opening Brief at p. 7 (May 14, 2008).

⁴ AT&T California Opening Brief at p. 1 (May 14, 2008); Exhibit #3 (Fuentes Niziolek Direct-Corrected), Attach. DFN-1, at p. 14 (ICA Resale Appendix, Section 8.13).

⁵ Id., at Attach. DFN-2, at p. 15 (Attachment Local Wholesale Complete, Section 9.1).