Discussion

The issue now before the Commission is whether AT&T California has a right under the ICA to require Blue Casa to pay charges for information services provided to Blue Casa's end-users by third party ISPs. The evidence indicates that Complainant is obligated to pay for all 900/976 charges. The AT&T California-Blue Casa 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 this Agreement."⁸ Blue Casa witness Oas, company founder and president, testified that he was aware of Complainant's obligation to either pay for 900/976 charges or order blocking for lines incurring such outstanding charges.⁹

Oas stated that in the fall of 2006, the company first observed "a sharp increase in charges that AT&T California was billing Blue Casa in connection with data exchange settlements."¹⁰ Upon investigation, he and AT&T California discovered that a single Blue Casa customer was responsible for information service (i.e., 900) calls averaging $10,000 a month since July 2006. Oas testified that Complainant was not obligated to pay the accumulated arrears because it did not have a billing and collection agreement with AT&T California for 900/976 charges.¹¹ Moreover, Oas stated that Blue Casa had difficulties blocking the lines of its "big fraud user"¹² and other customers amassing substantial 900 charges because of AT&T California's business rules and ordering systems.¹³ In addition, he asserted that Complainant believes that the onus was on AT&T California to place "blocking" on any lines that it had failed to block.¹⁴

The record does not support Blue Casa's view that it is not responsible for the billing and collection of the 900/976 calls made by its customers. The ICA obligated Blue Casa, as well as similarly situated carriers opting into the accord, to pay for the 900/976 associated charges, unless Blue Casa or its equivalent blocked those calls.¹⁵ Blue Casa was aware of the problem because it received bills totaling tens of thousands of dollars from April 2006 through October 2007, when AT&T California gave notice that it would discontinue service for nonpayment of the 900/976 fees. While the evidence shows that no later than December 5, 2006, Blue Casa became aware of the identity of the single customer who was incurring the majority of the disputed 900/976 charges, it also shows that Blue Casa did not submit to AT&T California a correct Local Service Request (LSR) blocking the problematic single customer until September 13, 2007.¹⁶

There is no indication that Blue Casa attempted to contact the customer, billed it for the 900/976 calls, or conducted any investigation regarding the customer's call activities. While Blue Casa asserts that AT&T California should have mitigated its damages by intervening and blocking the single customer's line, the record indicates that when AT&T California blocked the customer's line (following several erroneous Blue Casa order submissions and rejections), Blue Casa issued an LSR the next day removing the 900/976 block from the problem line.¹⁷ Blue Casa also argues that it has not waived the right to dispute all 900/976 charges billed prior to August 2007 because the dispute provision of the ICA does not apply in this instance. We disagree, and find that the agreement is applicable here. The ICA's dispute provision, which is set forth in Section 29.13.4.1 of the General Terms and Conditions, requires a carrier to provide written notice within 90 calendar days from the billing due date of the objected charges , or it waives the right to dispute them. The record indicates that Blue Casa submitted a formal dispute resolution claim on November 21, 2007, and timely disputed the invoices due on or after August 23, 2007.¹⁸ Consequently, we find Blue Casa fully liable under the ICA for the outstanding 900/976 charges accrued between April 7, 2006 and February 7, 2008,¹⁹ including late payment fees.²⁰

⁸ Exhibit 3 (Corrected Direct Testimony of Fuentes Niziolek), Attachment (Attach.) DFN-1, p. 14 (ICA Resale Appendix 8.13).

⁹ Reporter's Transcript (RT), Volume (Vol.) 2, at p. 49, lines (ll.) 10-28 through p. 51, l. 7 (April 1, 2008).

¹⁰ Data exchange settlements "is a mechanism through which billing data is exchanged and revenues are distributed to AT&T California for third-party-billed, collect, and calling card calls chargeable to Blue Casa customers." Direct Testimony of Don Oas at p. 2, ll. 12-16.

¹¹ Ex. 1 at p. 5, ll. 7-9 (Direct Testimony of Oas).

¹² RT, Vol. 2, at p. 54, ll. 18-20 (April 1, 2008).

¹³ Ex. 1 at p. 6, ll. 3-27.

¹⁴ Id., at p. 6, line 23 through p. 8.

¹⁵ We find Blue Casa's argument that AT&T California's 900/976 Tariff should control in this case to be unpersuasive.

¹⁶ Ex. 15C at p. 8 (Direct Testimony of Frederick C. Christiansen -- Confidential version).

¹⁷ Id.

¹⁸ Ex. 3 at p. 12 and Attachments DFN-5 and DFN-5A-B (Direct Testimony of Fuentes Niziolek).

¹⁹ Totaling $266,394.47

²⁰ Late payment charges under Sections 34.1.5 and 34.1.5.1 of the General Terms and Conditions of the ICA should total more than $76,208.45, the amount AT&T California calculated using an assumed payment date of July 31, 2008.