WPCH 2B5T 3|P/ )Times New Roman (TT)Times New Roman (Italic) (TT)Times New Roman (TT)HPLA5SM.WRSx  @,,,}&IgX@2@ ZP3|P HP LaserJet 5Si/5Si MHPLA5SM.WRSX\  P6G;,,,}&IgP"5^*8DSS88S^*8*.SSSSSSSSSS..^^^Jxooxf]xx8Axfxx]xo]fxxxxf8.8NS8JSJSJ8SS..S.SSSS8A.SSxSSJP!PZ*8888C8SSxJxJxJxJxJooJfJfJfJfJ8.8.8.8.xSxSxSxSxSxSxSxSxSxSxJxSxSxSxSxS]SxSxJxJoJoJfJfJfJxSxSxSxSxSCS8S888SAxSx]AN:*KS8JSSSSS.4}}S2S}288JJS88SS8J82N8\\^C`^SS`*8DSS88S^*8*.SSSSSSSSSS..^^^Jxooxf]xx8Axfxx]xo]fxxxxf8.8NS8JSJSJ8SS..S.SSSS8A.SSxSSJP!PZv8SJSS8]888JJ:S8A8xx*8SSSS!S8.S^8SC\228`K*824S}}}Jxxxxxxoffff8888xxxxxxx^xxxxxx]SJJJJJJoJJJJJ....SSSSSSS\SSSSSSS"5^2CRdd$CCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CCCCPCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYzYzYzYdddddPdCdCCCdNdoNNF2ZdCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd2 RyX vw Times New Roman (TT)Times New Roman (Italic) (TT)Times New Roman (Bold) (TT) X2X01Í ÍX01Í Í I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#o\  PC~XP#.y.C8*XrC\  P6QP.7PC2X~XP\  P6QXP5PC2XXP*f9 xQXXl7UC2X5XU4  pQXCCddCoCddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYda8DocumentgDocument Style StyleXX` `  ` 2 p k k ea4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  2v<L a7DocumentgDocument Style StyleyXX` ` (#` a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph NumbersC @` A. ` ` (#` a3DocumentgDocument Style Style B b  ?  1.  2  t ) a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h a6Right ParRight-Aligned Paragraph Numbers h` `  hh#@$(a) hh#((# 2[a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p Tech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala1DocumentgDocument Style Style\s0  zN8F I. ׃  2Ia5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   2"a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . 2#t3<oes#BibliogrphyBibliography:X (# Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:d<d<CCoodCCddCoCddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYd"5^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CCCCPCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYdddooPoNoNCNoddȐoNNF2ldCdddddd"5^*8]SS.88S_*8*.SSSSSSSSSS88___SxoxxofASoxfx]oxxxxo8.8aS8S]J]J8S].8].]S]]JA8]SxSSJB%BW*8888C8S]xSxSxSxSxSxxJoJoJoJoJA.A.A.A.x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxJxJoJoJoJSSS]]C]A]A8A]SSx]AN:*ZS8SSSSSS27}}S2||S}288SSS88SS8S82N8\\_C`_SS`*8]SS.88S_*8*.SSSSSSSSSS88___SxoxxofASoxfx]oxxxxo8.8aS8S]J]J8S].8].]S]]JA8]SxSSJB%BWv8SSSS8]888SS:S8A8xx*8SSSS%S8|2S_8|SC\228`Z*827S}}}SxxxxxxxooooAAAAxx_xxxxxf]SSSSSSxJJJJJ....S]SSSSS\S]]]]S].y.C8*XrC\  P6QP.7PC2X~XP\  P6QXP5PC2XXP*f9 xQXXl7UC2X5XU4  pQXly.G8*X5}9G4  pQ. W!0(Xh0\  P6QhP.I(!X,(\  P6Q,P2N2222!'22H22,006G!2,d22!d8!Y!!,,#2d!b'!HH!22222!L28!L2(7!:-!2KKK,HHHHHHYC====!!!!HHHHHHH8HHHHHH82,,,,,,C,,,,,222222272222222"5^(1<  yO'ԍXSprint Written Response at 3.(#V We are persuaded by Sprint's explanation that it  |$would not have been costeffective to purchase even more facilities because such facilities would  X 4 |$have been underutilized during the remaining six days of the week.?  yO '#X\  P6G;rP#эDefendant Sprint's Answers to Complainant's First Set of Interrogatories at No. 2 (filed May 18, 1998) (Sprint's Answers to Interrogatories). Sprint also explains that  |$expansion of international capacity on a particular route involves delay and negotiation with the  |$foreign carrier involved, and therefore, Sprint could not have implemented this solution in a  X4timely manner to resolve its capacity crises.y@  yO3'#X\  P6G;rP#эXSprint Brief at 17, n.17.(#y  Xb4  k21.` ` HiTech also contends that Sprint could have resolved its network problems in a  |$manner that would have permitted some continued free calling on Fridays or on other days of  X44 |$the week.HA4  yOg 'ԍHiTech Brief at 1213.H In response, Sprint states that this would have been impracticable in terms of  |$marketing, sales, and billing, and that HiTech has failed to provide any testimony from  X4 |$consultants or other evidence that would prove the contrary.xB yO#'#X\  P6G;rP#эXSprint Reply Brief at 7.(#x We agree. Although HiTech has" B0*$$CC6"  |$maintained from the inception of this proceeding that Sprint could have modified the Fridays Free  X4 |$program to preserve some free calling opportunities,zC {Ob'#X\  P6G;rP#эXSee Complaint at 10.(#z HiTech has failed to provide any evidence  |$/to demonstrate the feasibility of implementing this alternative. Furthermore, HiTech has failed  |$to explain why the preservation of free calling on one day of the week is patently more reasonable than giving a 25% discount on calls on all seven days of the week.  Xv4  k22.` ` The substantial cause standard also requires us to "take into account the position  X_4 |$_of the relying customer in evaluating the reasonableness of the change [to the tariff]."D_Z {Oj '#X\  P6G;rP#эXRCA Americom 1981 Order, 86 FCC 2d at 120102.(#ƚ We  |$conclude that Sprint has also satisfied this part of the substantial cause test because HiTech has  |$+not shown that it relied to its detriment on the original Fridays Free promotion. HiTech has  |$failed to demonstrate the extent, if any, to which it relied on the rates, terms, and conditions in  |$}the Fridays Free promotion. First, it appears that HiTech did not rely substantially on the ability  |$lto make free calls on Fridays to the countries deleted by Sprint's tariff revisions. In fact, Hi |$Tech's president, Mr. Kornfeld, admits that during the Fridays Free promotion in its original  |$+form, HiTech made no calls to any of the deleted countries, except for three calls to Israel,  |$which were made specifically "to take advantage of one last free call or fax to Israel prior to the  X4 |$ctermination of the free Fridays for Israel."E yO-'#X\  P6G;rP#эXHiTech Brief at Exhibit A, Affidavit of Robert E. Kornfeld at 7374 (Kornfeld Affidavit).(# Second, HiTech admits that it switched to Sprint's  |$Business Sense service not only because of the Fridays Free promotion, but also because Sprint's  Xb4 |$"rate was attractive in itself. . . ."tFb| yO'#X\  P6G;rP#эXHiTech Brief at 14.(#t Therefore, despite the deletion of nine countries from the  |$EFridays Free list, HiTech still continued to benefit from its enrollment in the Business Sense program.  X4  k23.` ` Finally, we note that Mr. Kornfeld enrolled in the Fridays Free promotion by  X4 |$signing a standard order formyG  yO'#X\  P6G;rP#эXKornfeld Affidavit at 13.(#y that clearly stated that the rates, terms, and conditions of Sprint's  |$Business Sense service and Fridays Free promotion "are governed by the applicable Sprint tariffs,  X4 |$as they may be amended from time to time."~H {O!'#X\  P6G;rP#эXSee Sprint Brief at 34.(#~ Thus, HiTech had advance notice that the terms  |$8of the Fridays Free promotion could be revised by Sprint at any time. More importantly, the  |$Mcircumstances of this case do not implicate any of the fairness concerns that may be present when  |$Ea carrier changes a contract in the middle of the term while binding the customer to all tariff"| . H0*$$CC"  X4 |$provisions until its expiration.I {Oy'#X\  P6G;rP#эXSee RCA Americom 1983 Order, 94 FCC 2d at 1339.(#ƛ Had HiTech called to complain about the deletion of the nine  |$qcountries from the Fridays Free promotion, Sprint would have provided it the option of  X4 |$terminating its subscription to the Business Sense program without penalty. JXZ yO'ԍSprint Answer, Appendix A at 2, Findings of Fact and Conclusions of Law; Letter from Michael B. Fingerhut, counsel for Sprint, to Magalie Roman Salas, Secretary, Federal Communications Commission, dated Dec. 24, 1998.  Because Sprint  |$permitted its Business Sense subscribers to exit their contracts without penalty, such subscribers were no worse off than if they had never enrolled in Sprint's Fridays Free promotion.  Xv4  k24.` ` Based on the record, we find that HiTech has failed to prove that Sprint's tariff  X_4 |$revisions were unjust and unreasonable in violation of section 201(b). Even assuming, arguendo,  XJ4 |$+that the substantial cause standard is applicable in this case, Sprint has met such standard.QKJz {Ou'#X\  P6G;rP#эAs stated above, in this Order we do not determine that the substantial cause standard is applicable in  {O?'evaluating a revision to a generic, longterm service tariff filed by a nondominant carrier. See supra  14.Q  |$Sprint has provided evidence that the tariff revisions were necessary to protect the integrity of  |$its network, and that such tariff revisions were limited. Sprint has shown that the Fridays Free  |$promotion, in its original form, threatened its network with overload problems and the possible  X 4 |$ucrashing of Sprints New York gateway switch for routing international calls.L  {Ou'#X\  P6G;rP#эXSee Sprint Written Response at 24.(#Ɖ Also, the  |$curtailment involved the deletion of only nine countries from a list of over 200 countries  X 4 |$pworldwide to which free Friday calling remained available.tM h  yO'#X\  P6G;rP#эXSprint Brief at iii.(#t Furthermore, HiTech has failed to  |$show that it relied to its detriment on the Fridays Free program. Finally, fairness concerns are  |$minimal in this case because Sprint offered its Business Sense subscribers penaltyfree  |$ termination if they expressed dissatisfaction with the tariff revisions. Thus, for the above reasons,  |$we conclude that HiTech has not met its burden of proving that Sprint's tariff revisions, intended  |$to minimize severe network overload difficulties, were unjust or unreasonable, or otherwise unlawful, under section 201(b). Accordingly, we deny HiTech's claim under section 201(b).  X'  kX B.X` ` Sprint's Modification of the Fridays Free Promotion Did Not Violate Section 203 of the Act.(#`  X4 " M0*$$CC{"Ԍ X4  k25.` ` HiTech alleges that Sprint violated section 203(c) of the Act,vN yOy'#X\  P6G;rP#эX47 U.S.C.  203(c).(#v because "by  |$altering the terms of the Fridays Free program, Sprint demanded charges for its service that were  X4 |$different than the charges then in effect."1O~X {O'ԍComplaint at 8. See HiTech Brief at 1617. In its complaint, HiTech also alleges that, "by altering the terms of the Fridays Free program, Sprint demanded charges for its service which were different than the  {Om'charges then in effect, in violation of  203(c) of the Communications Act." Complaint at 8, citing 47 U.S.C.  203(c). HiTech has abandoned this allegation, because HiTech's Brief and Reply Brief fail to present any arguments to support the allegation that Sprint demanded charges different from the rates published in its filed  {O 'tariff. See 47 C.F.R.  1.732(b) (stating that claims and defenses previously made but not reflected in the briefs will be deemed abandoned).1 Section 203 requires carriers who provide interstate  |$and international communication services to file tariffs with the Commission, and to provide  X4 |$service to its customers strictly in accordance with the provisions of such tariffs.6P {O '#X\  P6G;rP#эSee 47 U.S.C.  203(a), 203(c) (stating that "no carrier shall (1) charge, demand, collect, or receive a greater or less or different compensation . . . than the charges specified in the schedule then in effect").6 As explained  |$below, we find that Sprint did not violate section 203 of the Act, because Sprint did not charge rates different from those in its filed tariff and did not violate the terms of its tariff.  XH4  k26.` ` Prior to the tariff revision that curtailed free calling benefits to the deleted  |$countries, Sprint's Fridays Free tariff provided that "[t]his promotion is available through" a  X 4 |$specified date, "unless sooner changed or cancelled by Sprint."Q  {O'ԍSee, e.g., Sprint Answer, Exhibit 1 at 5, Sprint Tariff F.C.C. No. 11, 10.21, 8th Revised Page 421.10, Jan. 31, 1995 (January Tariff Revision). The first such specified date  |$was February 15, 1996, and the tariff revision that deleted countries from the Fridays Free  X 4 |$promotion specified a date of April 16, 1996.bR R  yO'ԍFridays Free Tariff; April Tariff Revision.b HiTech claims that these provisions "specifically  |$limited Sprint's ability to change or cancel the availability of the program for customers who  X 4 |$psubscribed on or before the specified dates."ES  yOQ'ԍHiTech Brief at 17.E HiTech contends, therefore, that Sprint violated  |$psection 203(c) when it revised the tariff to curtail the free calling benefits, because the language  |$of the tariff itself barred Sprint from revising the tariff's terms with respect to customers who  Xy4 |$&subscribed before the specified dates.tTyr yO!'#X\  P6G;rP#эXHiTech Brief at 17.(#t HiTech alternatively contends that Sprint's tariff revision  Xb4was unreasonable because it was not clear and explicit.MUb {O$'ԍXId.at 1718. (#M"b U0*$$CC"Ԍ X4  kԙ27.` ` Sprint contends, in response, that nothing in section 203(c), or in any other  |$provision of the Act, prevents a carrier from amending its tariffs from time to time, provided that  X4 |$}such amendments comply with sections 201(b) and 202(a) of the Act.kV yOK'#X\  P6G;rP#эSprint Brief at 10. Section 201(b) requires, in part, that "[a]ll charges, practices, classifications, and regulations for and in connection with ... communications service, shall be just and reasonable." 47 U.S.C.  201(b). Section 202(a) provides, in part, that "[i]t shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service...." 47 U.S.C.  202(a).k With regard to its tariff  |$Ilanguage at issue here, Sprint contends that such language does not circumscribe Sprint's ability  |$lto modify or eliminate the Fridays Free promotion in the future; instead, the language "simply  |$informs subscribers of the date by which they can subscribe to the promotion. Thus, it states that  |$8the Fridays Free offering would be available until a certain date unless that date was sooner  X_4changed by Sprint."DW_x yO 'ԍSprint Brief at 11.D Sprint also denies that its tariff language was ambiguous.pX_ {O'#X\  P6G;rP#эXId. at 13.(#p  X14  k28.` ` We agree with Sprint that the language at issue in the tariff did not limit Sprint's  |$ability to change its tariff; the language merely sets forth the expiration date for subscription to  |$Vthe Fridays Free promotion. For example, the April Tariff Revision states that "[t]his promotion  X 4 |$is available through April 16, 1996, unless sooner changed or cancelled by Sprint."SY  yO7'ԍApril Tariff Revision.S Because  |$the first part of that sentence deals with the period of availability for the Fridays Free program,  |$the clause "unless sooner changed or cancelled by Sprint" must refer only to modifications of that  |$availability period. Thus, the sentence merely means that, unless Sprint changed the cutoff date,  |$[the Fridays Free program would remain available for subscription through April 16, 1996.  |$Accordingly, we cannot reasonably interpret the tariff, as HiTech argues, to mean that Sprint could not revise the material terms of the Fridays Free promotion for existing customers.  X44  ki29.` ` HiTech also contends that, by its own terms, the April Tariff Revision deleting  |$4nine countries from the Fridays Free program applied only to those who subscribed after  X4 |$4February 15, 1996.MZ*  yO'ԍXHiTech Brief at 18.(#M The first sentence of the April Tariff Revision states: "[b]eginning  |$@February 15, 1996, new and existing Business Sense subscribers can receive free usage (outbound  X4 |$international only) on one day a week . . . for 12 months. . ."O[  yOC#'ԍXApril Tariff Revision.(#O The tariff language then"J [0*$$CCT"  X4 |$"describes program terms, including, for the first time, the elimination of certain countries.@\ {Oy'ԍId.@ Hi |$ITech argues that such language meant that subscribers who enrolled prior to February 15, 1996  X4 |$were not affected by the tariff revision and program curtailment.]Z yO'ԍHiTech Brief at 18. We note that HiTech did not become a Business Sense subscriber until after  {O'February 15, 1996, so prevailing on this claim would not afford HiTech any relief. See id. at 1. Alternatively, HiTech argues  X4that such language was ambiguous.A^ {O 'ԍId. at 18.A  X4  k30.` ` In response, Sprint states that the terms of the April Tariff Revision clearly apply  |$to all new and existing customers and not just to those subscribers who enrolled after February  X_4 |$15, 1996.__F yOV'#X\  P6G;rP#эXSprint Reply Brief (filed Dec. 23, 1998) at 10 (Sprint Reply Brief).(#Ƥ Sprint states that under established tariff procedures, a carrier that extends the  |$}availability of an offering will cancel the previous page on which the offering appears. The new  |$page on which the extended offering is set forth will then be applicable to new and existing  X 4 |$customers.p`  {O'#X\  P6G;rP#эXId. at 10.(#p Sprint then argues that acceptance of HiTech's argument would mean that the  |$Fridays Free program would be altogether inapplicable to subscribers who enrolled prior to  X 4 |$IFebruary 15, 1996.ia h  {O'#X\  P6G;rP#эXId.(#i In other words, if HiTech argues that the curtailment portion of the April  |$Tariff Revision was inapplicable to subscribers who enrolled prior to February 15, 1996, then the  X 4 |$entire April Tariff Revision (i.e., the Fridays Free promotion itself) would be inapplicable to those subscribers, as well.  X{4  k31.` ` We find that the April Tariff Revision applied to all new and existing subscribers.  |$The original expiration date for subscription to the promotion was February 15, 1996, but Sprint  |$"subsequently extended the date. Therefore, the phrase "[b]eginning February 15, 1996" clearly  |$hrefers only to the prior expiration date and did not limit the applicability of the April Tariff  |$"Revision to those subscribers who enrolled after February 15, 1996. We agree with Sprint that  |$RHiTech's interpretation of the April Tariff Revision is incorrect, because such interpretation  |$would render the Fridays Free promotion itself inapplicable to those customers who subscribed  |$prior to February 15, 1996. Sprint clearly intended the April Tariff Revision to revise the Fridays Free promotion for all new and existing subscribers. " a0*$$CC\"Ԍ X'| IV. CONCLUSIONl  X4  k 32.` ` Based on the record, the foregoing analysis, and our determination of the  |$applicable requirements of the Act and our rules and orders, we conclude that Sprint's actions  |$were lawful under the Act. We find that Sprint's modifications to its tariffed Fridays Free  X4 |$promotion were just and reasonable, in accordance with section 201(b) of the Act.vb yO'#X\  P6G;rP#эX47 U.S.C.  201(b).(#v We also find  |$that Sprint did not violate section 203(c) of the Act, because its tariff revisions were in  X_4accordance with the terms of its filed tariff.Uc_X yOh 'ԍX47 U.S.C.  203(c).(#U  X1'l5 V. ORDERING CLAUSES X 4l  X 4  k 33.` ` Accordingly, IT IS ORDERED that, pursuant to sections 1, 4(i), 4(j), 201(b),  |$8203(c), and 208 of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i),  |$154(j), 201(b), 203(c), and 208, that the formal complaint in this proceeding IS DENIED and this proceeding IS TERMINATED.  X4  k!34.` ` IT IS FURTHER ORDERED that the Chief, Formal Complaints and Investigations  |$Branch, Enforcement Division, Common Carrier Bureau, shall forward a copy of this decision  |$to the United States District Court for the Western District of Missouri, Western Division, promptly upon release of this Memorandum Opinion and Order. ` `  Ghh}FEDERAL COMMUNICATIONS COMMISSION ` `  Ghh}Magalie Roman Salas ` `  Ghh}Secretary