HyperCube, Level 3 Swap Shots in Reply Comments on Judge’s Proposed Decision, Now before California Regulator

Decrying the “absurdity” of Level 3’s position, HyperCube said its adversary’s stance is “best evidenced by Level 3’s own access service offering, which is identical to Hypercube’s offering.” According to HyperCube, accused by Level 3 of inserting itself into that company’s business, “in California, Level 3 has a `Switched Access Service’ tariff through which it provides interexchange carriers `Toll Free Transit Traffic Service.’ HyperCube says Level 3 admitted in discovery that it has its own contracts with wireless carriers to obtain their 8YY traffic and that Level 3 collects access charges from other IXCs for that wireless-originated 8YY traffic.

"Of course, Level 3 offers no explanation why its identical service is lawful while Hypercube’s is not, or why Level 3 can seek access charges for wireless-originated traffic while Hypercube cannot,” HyperCube said. HyperCube added that Level 3 complains about the content of HyperCube’s contracts with wireless carriers, “even though Level 3 has never seen those contracts, and the ALJ rightly denied Level 3’s motion to compel the production of those very contracts in discovery."

HyperCube derided Level 3 complaints that HyperCube’s tariffs prior to Jan. 1, 2009, charged for “originating access” -- according to HyperCube, a claim rebutted by the “plain terms of Hypercube’s tariff, which the proposed decision never analyzed.” As it did in a previous filing, HyperCube invoked the California commission’s recent history of strictly enforcing the filed tariff doctrine in cases involving intercarrier compensation as grounds for requiring Level 3 to pay fees and other charges HyperCube estimates at $5.5 million.

For its part, Level 3 termed HyperCube’s analysis “a desperate attempt to find a basis -- any basis -- to avoid the inevitable conclusion that it cannot lawfully charge Level 3 for 8YY traffic it sends to Level 3 as part of its originating access billing and revenue-sharing scheme with wireless carriers.” The competitive local exchange carrier’s comments are a “smokescreen” generated to “create confusion or find an argument that may stick, but all of Hypercube’s arguments are invalid and must be rejected,” Level 3 said in its reply comments, urging the commission to adopt the proposed decision.

Level 3 challenged HyperCube’s assertion that the scoping memorandum doesn’t encompass an FCC ruling in its Eighth Report and Order barring CLECs from billing for wireless carrier services pursuant to billing arrangements such as HyperCube has with wireless carriers. “The Scoping Memorandum explicitly encompasses Level 3’s answer and defenses in that respect,” Level 3 said. Accusing HyperCube of attempting “sleight of hand,” Level 3 said HyperCube effectively claims that its service descriptions, rates and charges under a tariff that didn’t take effect until Jan. 1, 2009, should retroactively replace the prior HyperCube tariff stipulating that HyperCube charge Level 3 and other customers originating access as part of a blended access rate.

Despite HyperCube’s disavowals, the CLEC does collect and share switched access revenues with wireless carriers to cover the wireless carriers’ costs of originating calls, Level 3 said. “Hypercube claims that the filing of intrastate tariffs makes those tariffs state law, irrespective of whether collection of rates under such tariffs is consistent with state law or barred by the FCC,” Level 3 said. “Hypercube maintains that tariffs which describe a service but do not provide a rate for that service should be construed to provide a rate for the service, and against the recipient of that traffic, rather than against the utility which prepared and filed those tariffs,” Level 3 added. “Hypercube avers that the regulatory sky will fall if the Proposed Decision is approved, despite the fact that the scope of the ruling is narrow and the result is required by federal law.”